Slight of hand – Government playing trick on Judge Biggers with Response to Zach Scruggs’ Motion for Depositions

Hopefully, Judge Biggers will catch the slight of hand trick when he reads the Government’s Response to Zach Scruggs’ Motion for Depositions – admittedly, I missed it on my first read and only read it again after catching Patsy Brumfield’s story on NEMS360.com this morning: Feds insist Scruggs request ‘reckless’ to question key figures under oath.

Prosecutors say Zach Scruggs’ request to take sworn statements from 11 key judicial-bribery case witnesses is “reckless, speculative and legally ineffective.”

Their motion filed late Friday argues that the only people the court should subpoena for live testimony should be Scruggs’ four original co-defendants in the 2007 judicial bribery case that rocked Mississippi’s legal community…

Here’s the trick – the Government wants to substitute affidavits given to counter Zach’s Bar Complaint against his former attorney, Anthony Farese, for the depositions Zach requested in his Motion for Depositions.  While the names may be the same – Langston, Dawson, Sanders, and Norman – Zach’s Motion goes much further than his complaint against Farese.  Not only that, the Government tosses in the affidavits of Oxford attorney Kenneth Coghlan and former Langston law partner Ron Michaels – both supporting Farese in the matter before the Bar, to make the slight of hand trick more believable to Judge Biggers.

However, there are far more significant issues before the Court than those addressed in Zach’s Bar Complaint against Farese – and the Government’s response ignores those issues all but in total.  For example, the Government’s position is Judge Lackey should be given a free pass (another one!): Continue reading “Slight of hand – Government playing trick on Judge Biggers with Response to Zach Scruggs’ Motion for Depositions”

Zach Scruggs files the mother of all motions – Motion for Deposition of all Scruggs defendants and key players UPDATED

Update: Patsy Brumfield reports on Zach’s motion in the Sunday edition of NEMS360What may they say, if Zach Scruggs questions key players?

Skipping the legal argument of Zach’s Motion for Depositions (below in Scribd format) and going straight to what everyone has always wanted to know:

“The following states the name of each person whose deposition is requested, along with illustrative (but not exhaustive) information explaining the discoverable information that person is likely to provide. For the sake of brevity, each entry incorporates the knowledge stated for prior witnesses”.

Sidney Backstrom:

Mr. Backstrom was a co-defendant in this case, who worked in the Scruggs Law Firm across the hall from the Petitioner. Mr. Backstrom has discoverable knowledge concerning the Scruggs Katrina Group and their assessment of the Jones case, whether Petitioner ever knew about an alleged bribery scheme or whether there was any such bribery scheme. This Court has previously suggested that Mr. Backstrom would surely have discussed a bribery scheme with Petitioner (see Petition, D.E. 303 at 33), and Mr. Backstrom will put such speculation to rest. Specifically, Mr. Backstrom can provide context to the November recording, testifying as to whether Petitioner was present during key moments. Mr. Backstrom is also a witness regarding the existence of certain alleged conversations and emails, about which Timothy Balducci has testified falsely.

Mr. Backstrom can also testify to whether Petitioner ever did anything to join the conspiracy, in support thereof, or to conceal the same, along with the state of mind of the Petitioner regarding Judge Lackey’s order compelling arbitration. Mr. Backstrom also has knowledge of exculpatory discussions he had with federal authorities concerning Petitioner both before and after he became a cooperating witness, as well as about the existence or absence of any documentation of such discussions, which should have been disclosed to Petitioner. Mr. Backstrom will also impeach testimony and representations previously given to this Court by both Government witnesses and the Government itself. Mr. Backstrom presently resides in Texas, outside the civil subpoena power of this Court, making a deposition the only practicable way to get his testimony for this Court…(citations omitted)

Richard Scruggs

Mr. Scruggs was the primary defendant in this case, and has discoverable knowledge about the foregoing issues. Mr. Scruggs is also in the best position to testify about who created the alleged bribery scheme, when, and how, and most importantly, whether Petitioner was ever told about that alleged bribery scheme. In addition, Mr. Scruggs knows whether Petitioner was ever informed about the $40,000 and $10,000 payments to Mr. Balducci, or whether Petitioner was informed that the legal work assigned to Mr. Balducci on a Hurricane Katrina case was a mere sham, as the Government alleges, to provide cover for reimbursing the alleged bribery funds.

Mr. Scruggs can also testify to whether Petitioner ever did anything to join the conspiracy, in support thereof, or to conceal the same. This testimony will also serve to impeach testimony and representations previously given to this Court by both Government witnesses and the Government itself. Mr. Scruggs resides in a Federal Correctional Institution in Ashland, Kentucky, outside the civil subpoena power of this Court, making a deposition the only practicable way to get his testimony for this Court…(citations omitted)

Zach also seeks to depose Steven Patterson,Timothy Balducci, Judge Henry Lackey, William Delaney, Joseph Langston, Anthony Farese, Tom Dawson, Judge David Sanders, and Robert Norman – specifics below the jump. Continue reading “Zach Scruggs files the mother of all motions – Motion for Deposition of all Scruggs defendants and key players UPDATED”

AUSA Bob Norman loses his grip – throws Tom Dawson under the bus and rolls over Judge Biggers in Government’s Response. Zach’s Reply calls for Government’s backup!

After it took one Court order, one 30 day-extension, and a total of 77 days for the Government to respond to Zach Scruggs’ Motion to Vacate, Judge Biggers ruled on Zach’s Motion for Discovery before the Government filed any Response at all.

However, haste makes waste – and in its haste to produce the one-day-wonder filed today, the waste was former AUSA Tom Dawson who went under the bus as the Government rolled on.

Dawson is co-author of the “impeccably researched” Kings of Tortsa “true story…”.  Zach Scruggs’ Motion for Reconsideration claims:

Only with the publication of these facts in 2009 did Petitioner Zachary Scruggs learn that the Government induced his own attorney to procure a witness that the Government assured the Court and Petitioner would testify against Zachary Scruggs, a witness that created an “insurmountable” challenge to his defense, and undermined his rights to effective counsel and fair trial. The purpose of the requested discovery is to probe those murky depths, to determine whether the Government affirms or denies those facts provided by Mr. Dawson. If the Government now concedes that Mr. Dawson’s account is true, then these questions can be dispatched quite quickly.

Chief among those facts cited by Scruggs is that “Mr. Dawson’s 2009 book further explains that the Government proceeded with nearly a month of secret negotiations, using Mr. Farese to secure Mr. Langston’s plea and agreement to cooperate with the Government, all without notifying the Petitioner, the other defendants, the other joint defense counsel members, or the Court about the conflict the Government had created.

In the Government’s Opposition brief (below in Scribd format), ND Mississippi AUSA Bob Norman refutes the truth of Dawson’s account:

Let us be clear. There were no month-long secret negotiations preceding Joey Langston’s plea. There has been no “adverse testimony” from Mr. Langston. There is therefore no conflict.

By all means, “let’s be clear”- and for clarity we turn to Zach’s Reply (below in Scribd format), filed before the ink was dry on the Government’s Response: Continue reading “AUSA Bob Norman loses his grip – throws Tom Dawson under the bus and rolls over Judge Biggers in Government’s Response. Zach’s Reply calls for Government’s backup!”

Zach Scruggs files Motion to Allow Discovery for upcoming hearing on his Motion to Vacate

Although the Government seems to have conceded that the charge to which Defendant pled guilty (misprision of earwigging) is now a legal nullity, the Government seems to assert that Defendant is guilty of some or all of the bribery charges that the Government previously dismissed. However, under Department of Justice Guidelines, the Government was required to pursue the most serious, readily provable offense or offenses that are supported by the facts of the case … Once filed, the most serious readily provable charges may not be dismissed…. Any sentencing recommendation made by the United States in a particular case must honestly reflect the totality and seriousness of the defendant’s conduct and must be fully consistent with the Guidelines and applicable statutes and with the readily provable facts about the defendant’s history and conduct. …Likewise, federal prosecutors may not “fact bargain,” or be party to any plea agreement that results in the sentencing court having less than a full understanding of all readily provable facts relevant to sentencing.
Policy Memo. of the Attorney General, 9/22/2003 (emphasis added). Indeed, the Government assured the Court in March, 2008 that “all the facts and circumstances” of this case amounted to merely misprision of earwigging. See Motion, D.E. 303 at 19 (quoting the prosecutors).

Zach’s attorney is Edward “Chip” Robertson, former Chief Justice of the Missouri Supreme Court. Robertson writes with the very strong pen of a man confident of his knowledge of the law, wasting not a word. I point that out because I’m not certain it’s possible for anyone to summarize the points in his brief; but, I’m certain I cannot. Robertson’s motion with Exhibit A (Requests for Admissions, Interrogatories, and Requests for Documents and Other Things) is below the jump in scribd format.

Judge Biggers, who has a strong pen of his own, may very well grant this Motion with a “Hell, yes, I want to know”. Read it and see if you don’t agree. Continue reading “Zach Scruggs files Motion to Allow Discovery for upcoming hearing on his Motion to Vacate”

Nowlin’s Motion to Vacate – another view of the “just-us” system of North Mississippi

A few months ago, I began getting email messages about this case. The most recent came today and, I suspect but don’t know for certain, the NEMS360.com report on the upcoming hearing of Zach Scruggs’ Motion to Vacate prompted this latest message.

In the event it did not, I’ll confess that Judge Biggers’ decision had everything to do with my decision to toss my plans for the evening and dig a little deeper into Ken Nowlin’s Motion to Vacate his guilt plea. Why? Because there’s little comparison between Nowlin and Scruggs; yet, both have filed motions to vacate their agreements to plead guilty before a north Mississippi federal court.

Nowlin was the big fish in the little pond of Ecru, Mississippi – population 947 in the 2000 Census. Scruggs, on the other hand, is the son of the biggest fish in the pond – an award winning catch for the federal prosecutors working for the U.S. Attorney of the northern district of Mississippi.

Nowlin served almost 15 months and paid nearly $276,000 in restitution after pleading guilty three years ago to one count of a 53-count federal indictment, which accused him of a conspiracy to corruptly accept some $827,000 in insurance commissions. (NEMS360.com)

However, Nowlin, like Scruggs, claims he was pressured to plead guilty; albeit under different circumstances: Continue reading “Nowlin’s Motion to Vacate – another view of the “just-us” system of North Mississippi”

Judge Biggers schedules April hearing on Zach Scruggs’ Motion to Vacate

Patsy Brumfield broke the story on NEMS360.com – although I doubt she wants credit for the typo indicating the hearing was set for August and not April.

SLABBED will take a pass; check back with NEMS360 a little later; and rely on Judge Biggers’ order for the details:

Upon due consideration, the court is of the opinion that all issues involved in said motion should be heard. The court will receive evidence if requested.

It is, therefore, ORDERED AND ADJUDGED that the parties shall appear for a hearing on movant’s motion on Monday, April 25, 2011, at 10:00 a.m. in Courtroom 3 West of the United States Courthouse in Oxford, Mississippi.

Short – and, in this case, “sweet”.

Scruggs: the movie – Wow! northern MS just-us justice up on the big screen!

NEMS360 reports, “Longtime Hollywood insider Sam Haskell….has bought the television and film rights to Curtis Wilkie’s book, “The Fall of the House of Zeus”.

The project, said Haskell publicist Nathan Wells, “has the potential to spur a TV-film industry along in Mississippi, which has been one of Haskell’s goals since returning to Mississippi full time.”

“But for both Wilkie and Haskell, the book and the prospective movie also mean a chance to tell parts of the story that most press accounts could not…The story “has to be about redemption,” he added. “We all make mistakes; this was in the public eye in a way that created a perfect storm for misunderstanding.”

Redemption. Mistakes. Perfect storm for misunderstanding – ohdeargod, those words didn’t sit well with north Mississippi’s black- cloud just-us justice crowd.  Late afternoon, however, Zach Scruggs rained on their parade – and redemption, mistakes, misunderstanding took on a different meaning.

“You know Lackey much better than I, but I don’t believe he was taken aback one whit. If anything, I think he expected Balducci’s Of Counsel “assurances.” Look at the other judges and officers who signed on before Lackey … he didn’t want to be excluded.”

However, the really different meaning to Judge Lackey’s role comes when it’s viewed in light of the Government’s lack of jurisdiction to make a federal case out of the state judges’ position – meaning the Government had no “color of official right” to lend to Lackey.  It was this “color” that made a bribe of what otherwise have been Lackey’s extortion of money from Scruggs.  Without jurisdiction, the government was not just without “color” to lend Lackey, it was also without the authority to obtain a wire tap order and Judge Biggers without the authority to issue same –  and, folks, this “really different meaning” is going to make a great movie! Continue reading “Scruggs: the movie – Wow! northern MS just-us justice up on the big screen!”

No surprise, little substance – not much thinking evident in Government’s cognitive map – USA opposes Zach Scruggs’ Motion

Hardly the “breaking news” it was several days ago – and even then not a surprise:

“The government respectfully differs” with Scruggs’ view that he was forced to plead guilty to a crime he didn’t commit and that his former counsel was secretly working with the government for another client…”

Although SLABBED was otherwise engaged when Patsy Brumfield broke the story of the Government’s Response in Opposition to Zach Scruggs’ Motion to Vacate, “Unbelievable” was the reaction on bellesouth’s blog and even the blogging lawyer of north Mississippi was taken aback by the government’s mention of polygraph tests:

“Sid Backstrom attempted to corroborate the petitioner’s denials, but failed an FBI polygraph.  David Zachary Scruggs also failed an FBI polygraph showing deception when he said he knew nothing about money changing hands”.

Others found it “unbelievable” that the Government’s Response made mention of the polygraph tests.  In her day-after story, Patsy Brumfield had comments from Scruggs’ attorney, former Missouri Supreme Court Justice Edward “Chip” Robertson:

“Robertson said he’s surprised they breached a confidentiality agreement about the polygraph, saying its results aren’t reliable or admissible as evidence. (emphasis added)”

Clearly, the Government needed an argument that would likely cause Judge Biggers to flip his wig and deny Zach’s motion.  The reliability of the 404(b) “wig” the Government put in Judge Biggers’ “ear” when the case appeared headed to trial was refuted by the recently obtained documentation incorporated into Zach’s motion – and the Government had little choice but to include a related admission in its opposition response: Continue reading “No surprise, little substance – not much thinking evident in Government’s cognitive map – USA opposes Zach Scruggs’ Motion”

Speaking of Judges – Pasty Brumfield finds Judge Lackey while looking for Wendell Blount

Ordinarily, there would be no reason for SLABBED to pick up the  north Mississippi story of Wendell Blount on the run.  However, there is nothing ordinary about the connection Patsy Brumfield made between Blount and the so-called-hero of USA v Scruggs, Judge Henry Lackey.

Background on Blount’s current caper is not of particular interest.  The “devil”,  so to speak, is in the details of his past:

Blount’s legal past is easy to follow at the federal level. He was a party to 33 bankrupty cases, 14 civil lawsuits and five criminal actions…Through the years, Blount has been involved with numerous business ventures in Calhoun County, some successful and others not.

One such business – Medical Concepts Inc. – was established in 1989 with Henry L. Lackey, who in 1993 was appointed a circuit judge by Gov. Kirk Fordice. Lackey is set to retire at the end of the year.

Lackey could not be reached for comment. State documents show Lackey resigned as the business’ agent for process in July 1990 just before it merged with a Nevada company.Earlier records show Lackey in an attorney’s role filing incorporation papers for Blount with the Mississippi secretary of state’s office.

Earlier records from an Adversary Proceeding filed in one of Blount’s bankruptcy cases show Lackey’s role was more than just that of an attorney filing incorporation papers. Continue reading “Speaking of Judges – Pasty Brumfield finds Judge Lackey while looking for Wendell Blount”