Denial – Biggers’ reaches decision on Zach Scruggs’ Motion to Allow Discovery

This morning’s not altogether unexpected rise-and-shine news is Judge Biggers’ denial of Zach Scruggs’ Motion to Allow Discovery.  h/t  Y’all Politics

Time will tell if Biggers’ you’ve-already-had-discovery decision means Zach’s Motion to Vacate is doomed. While the Court had discretion to decide the motion, the next decision is a matter of law – and the point of Scruggs’ motion was no discovery would be needed if the Court followed the law. Biggers’ Order is here (another h/t to Y’all)

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”.

Hey, asshole, your “cognitive biases” are showing – Pynchon’s new book adds to SLABBED discussion of cognitive maps

We’ve all got one and we can all be one – but  “an ‘asshole’ is not a person but a behavior“, according to  blogroll friend of SLABBED and author of “A is for Asshole: The Grownups’  ABC’s of Conflict Resolution”, Vickie Pynchon.

“We are all blinded by the part we play in disputes” – Amen!  “Asshole” is a behavioral tango – “not one person but two” with  cognitive biases: “something that our minds commonly do to distort our own view of reality”.

Resolving conflict requires taking the blinders off and accept mutual responsibly for both the conflict and its resolution.  Ouch!  It’s so much easier to keep blinders on and see a conflict as “the other guy’s fault” – a “fundamental attribution error” cognitive bias:

“over-attributing intention and under-attributing circumstance to another’s harm-causing behavior while over-attributing circumstance and under-attributing intention to our own harm-causing behavior”

Although each a form of cognitive bias, “clustering illusions” – “seeing patterns where none exist” – and “confirmation bias” – “selecting from a vast amount of data only that which confirms our pre-existing opinions” – feed “fundamental attribution errors“.

What researchers have found is that whenever someone else’s behavior causes us harm, we tend to assume that person intended to cause us the harm we experience or, at a minimum, caused us harm by virtue of their carelessness in regard to our well-being.

Pynchon, an accomplished professional “neutral”, readily admits “mistakes about the intentions and motivations” of another and “the constraints under which they are working” happen in both personal and professional relationships – and, setting aside the personal, we move to a brief review of the asshole behavior and cognitive biases evident in Katrina-related litigation. Continue reading “Hey, asshole, your “cognitive biases” are showing – Pynchon’s new book adds to SLABBED discussion of cognitive maps”

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!”

BREAKING NEWS – Zach files reply: Cites 5th Circuit and argues what Government

Will update later today.  Just stopping by to link Zach’s [Defendant’s] Reply Memorandum in Support of His Motion to Vacate His Conviction – safe to say he knows his Skilling – and list the points he argues the Government  contest and “therefore effectively conceded”

The Government’s Response in Opposition (D.E. 309) has dramatically narrowed the issues in this case. See, U.S. v. Branch, 91 F.3d 699, 752 (5th Cir., 1996)(where Government’s brief “did not contest” a point raised by a Petitioner, it “therefore effectively conceded that point”). Pursuant to 5th Circuit doctrine, the following claims are no longer contested issues:

•That, under Whitfield v. U.S., 590 F.3d 325 (5th Cir., 2009), the Petitioner is innocent of the three counts of federal programs bribery alleged in the Indictment under 18 USC § 666. With these three counts legal nullities, all that can remain are the honest services counts – and after Skilling v. U.S., these require beyond-a-reasonable-doubt proof that Petitioner bribed or conspired to bribe Judge Lackey.

•That, under U.S. v. Skilling, 130 S.Ct. 2896 (2010), the Court had no jurisdiction to accept a guilty plea nor pass sentence on the misprision of felony to which Petitioner pleaded guilty.

•That the Government misled the Court when it assured the Court that it had 404(b) testimony from Joey Langston that “implicated” Petitioner in any attempt to bribe Judge DeLaughter, a representation that it never sought to correct for two and a half years despite countless opportunities to do so. Continue reading “BREAKING NEWS – Zach files reply: Cites 5th Circuit and argues what Government”

Curtis Wilke: author of “Zeus” – and a man with many friends

The author is a friend of scruggs: No? How does that play out in the book?

Russell asked and I promised to answer.  Truth is that Wilke answers Russell’s first question in a two-page “Author’s Note” at the end of the book acknowledging his friends :

Dick Scruggs is my friend.

So are many other characters with roles on all sides of the political, civil and criminal conflicts in this book.

Wilke is a highly regarded professional journalist whose fidelity to the ethical standard of unbiased reporting, in my opinion, is only questioned by those who want him to tell the story the way they see it.  Russell’s questions are a different matter.  He simply wants to know such things as Wilke counts both Dick Scruggs and John Hailman among those he lists as his friends:

John Hailman, who triggered the investigation against Scruggs, shared an office suit with me…after he retired from the U.S. Attorney’s office.

Russell also asked how Wilke’s friendship with Scruggs played out in the book – and that I answer by pointing out the evidence of balance, not bias, in a 30-page, chapter-by-chapter of listing of Wilke’s sources. He interviewed Dick Scruggs but he also interviewed a host of others with a different perspective including Charles Merkel, Grady Tollison, Joey Langston, John Hailman,  U.S.Attorney Jim Greenlee.  Wilke even interviewed Tom Dawson, the federal prosecutor who later co-authored “the other book”, Kings of Tort.

In the end, the book played out just like the story – and, at last, some of Oxford’s dirty little secrets are out.

Absolutely amazing – What you can learn reading Wilkie’s “Fall of the House of Zeus”

In an interview with Tupelo journalist Patsy Brumfield appearing on Sunday’s NEMS360.com, “Zeus” author Curtis Wilke said,

“There were any number of subplots in the book that could be developed into bigger stories. I chose to concentrate on the Johnny Jones suit and the approach to Judge Lackey in order to keep a strong focus on one case. So Scruggs II, as the prosecutors called it, the case that sent Bobby DeLaughter to prison, does not get a full treatment in “Zeus.”

Wilke’s snapshot of Scruggs II, however, is more than sufficient for readers to see the big picture of the case and the influence it had on the outcome of Scruggs I.  A pretty picture it is not but it confirmed what had previously been rumored:  the legal team  representing Scruggs, Scruggs and Backstrom held a “mini-mock trial…to evaluate the strength of the prosecution’s case” – an exercise described on pages 293-294 as producing “unhappy results”:

“the defense…[of the charges related to the bribery of Judge Lackey]…had been overwhelmed  by the introduction of the second case….[the alleged bribery of Judge DeLaughter]…and the suggestion that Scruggs had a history of bribing judges.” (pg. 294)

Allegations of the bribery of Judge DeLaughter first surfaced in the Grand Jury testimony of Tim Balducci:

“Balducci’s information not only imperiled Langston and Peters, it exposed Scruggs to a second charge of bribing a judge.  This opened the door for the government to use the 404(b) provision to show that Scruggs had a predilection for criminal behavior.” (page 264)

However, during a hearing on the Scruggs motion to dismisss Scruggs I charges against Scruggs, Scruggs and Backstrom, attorney John Keker had a brief opportunity to cross-examine Balducci and “pounced on inconsistencies”: Continue reading “Absolutely amazing – What you can learn reading Wilkie’s “Fall of the House of Zeus””

On the outside looking in at

The release of Curtis Wilke’s book on the “rise and ruin” of Dick Scruggs, “The Fall of the House of Zeus”, has reopened discussion of a subject I addressed in a June 5, 2008 post,  On the outside looking in at “the perspective of honest lawyers”.

As someone who is two-plus years older and still not a lawyer, I remain on the “outside looking in” – although, definitely, both “older and wiser” on “the perspective of honest lawyers” in terms of the anger they feel at Dick Scruggs for tarnishing their profession.  Like all growth, growing “older and wiser” was painful at times.  However, the aches and pains of aging paled to the heartache I felt while gaining wisdom from the anger of  “honest lawyers”.

Simply stated, not all who make the claim are “honest lawyers” but the truly honest are easily identified.  “Honest lawyers” also express anger toward the system of justice that failed in so many ways.  They rage and rail about the “good ole boy network” that closed rank to protect Judge Lackey and remained silent about the government’s conduct.  Honest lawyers seek no advantage and decry a system that viewed Grady Tollison’s contact with Judge Lackey with a closed eye.  Honest lawyers trade on their skill, have no connections to tout, and never ever toot their own horn in public.

Consequently, the belief expressed in my closing statement is one I believe even more today than when I hit “publish”:

To the whatever extent honest lawyers have not been honest people – fair and just in their treatment of all involved in USA v Scruggs and the Katrina insurance cases – they have corrupted the legal system as much, if not more, than those they blame.

My archived post follows: Continue reading “On the outside looking in at”

USA tells Judge Biggers more time needed for response to Zach Scruggs

After pulling a truckload of briefs in the various qui tam cases last week, my desktop was so loaded that I skipped my routine Friday evening check.  One more confession while I’m in this tell-all mood — I actually welcomed the notice of “routine maintenance” that made the PACER system inaccessible most all weekend as I’d begun to feel like the computer version of  of Shel Silverstein’s television-watching Jimmy Jet:

“He watched till his eyes were frozen wide,
And his bottom grew into his chair…
And grew a plug that looked like a tail…”

In my eagerness to avoid Jimmy Jet’s fate, I didn’t catch the latest item on the docket of USA v David Zachery Scruggs before I got out of my chair for the weekend.  Patsy Brumfield, however, somehow got word and posted Prosecutors ask for time in Zach Scruggs’ appeal in today’s NEMS360.com”:

“Federal prosecutors in Oxford say they need more direction from Washington before they respond to Zach Scruggs’ motion to vacate his 2008 conviction.”
Hoping the “beach brief”  makes “my butt look smaller”, I raced to the tuned-up PACER and picked up the USA’s Motion for Extension of Time that appears in full below the jump.  Before we go there, let’s examine the USA’s argument that additional time to respond is needed because Zach cited “the United States Supreme Court’s recent Skilling opinion” and:
“… the Department of Justice has promulgated guidelines to federal prosecutors regarding Skilling responses, the undersigned prosecutor has submitted to the Department of Justice an outline of the government’s proposed response, and is awaiting approval…”
Skilling, while opening the door for Zach Scruggs to file his motion, is not the only matter DOJ should consider.  The USA falsely claimed the jurisdiction needed to build a case against Dick Scruggs –  SLABBED explained but it was the 5th Circuit that declared there must be a “nexus between the criminal conduct and the agency,” administering the federal funds: Continue reading “USA tells Judge Biggers more time needed for response to Zach Scruggs”