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:
“The petitioner now contends…if Langston was not going to testify against Zach Scruggs, then the undersigned prosecutor lied to the court. Government counsel and Joey Langston may have miscommunicated…”
“Miscommunicated” is a bit of a stretch, even for an opposition appearing as short on substance as the Government’s response. Given my qualifications to offer a professional opinion are in the field of behavioral science and lack of same in law, I’ll go on record – or the back of a napkin – and offer there is ample evidence shortcut thinking became the Government’s cognitive map.
“If the facts don’t fit the theory, change the facts”, a March 2008 SLABBED post, drew from Walter Lippman to explain:
“People…make judgments by condensing ideas into symbols that are stored in the brain and released when triggered. When…[people]…take this shortcut, it is their opinion, not fact, that influences public opinion. “
Lippman, naturally focused on “people” who were journalist, although it is obvious that when the “people” are lawyers that take this shortcut and make judgments, “it is their opinion, not fact, that influences”, as in Zach’s case, the Court’s opinion. ”
Our brains have the functional capacity to develop symbolic representations of stored knowledge. When one of these symbols is triggered, the result is related “automatic thinking”. Applying this bit of science to Lippman’s thinking simply means the “automatic thinking” forms opinion. Standing on science alone, the outcome of “automatic thinking” is more familiar when described as a reflex. The brain, for example, stores the knowledge gained when learning to ride a bicycle. Thereafter, a bicycle is the symbolic representation of the knowledge. Hopping on a bike pulls the trigger to automatic thinking and off you ride.
It is the human capacity for automatic thinking that enables the development of higher order thinking. Simply stated, automatic thinking is no substitute for the critical thinking required to glean fact from complex information. Lippman’s point was directed toward intangible symbols that trigger shortcuts as a cognitive map. The Government’s opposition, indicates the name “Scruggs” is one of those intangible symbols that triggers opinion, not fact.
And the government’s belief that Zach Scruggs had knowledge of the Wilson v. Scruggs matter was based primarily upon an e-mail obtained from one of the attorneys representing the Scruggs firm in Wilson v. Scruggs. Zach Scruggs authored that e-mail, opining that the case was in a posture where Team Scruggs could get anything they wanted, signed on the back of a napkin.
The attorney who received that e-mail responded that he hoped that the petitioner misunderstood Tim Balducci’s and Joey Langston’s role in Wilson v. Scruggs. He didn’t. (text from the Government’s response, quoted in “Unbelievable, Part Two” h/t bellesouth)
I can’t help but wonder if anyone in the northern part of the state sells the napkins I’ve seen in stores here – the ones with “I get my exercise jumping to conclusions” printed under the colorful illustration of a very large woman. Could be that Zach had that napkin in mind and thought Tim and Joey wouldn’t jump to the conclusion that the Special Master’s recommendation was legally justifiable. The point, however, is that nothing on the record indicates what Zach was thinking, assuming someone bothered to ask.
So, it’s fair to ask, just what was the Government thinking – but not necessarily fair to expect the “undersigned prosecutors” to answer. Whatever else they may be, their current position is somewhat like that of the last guest to leave a party gets the “door prize” – as in last one out the door at the US Attorney’s office has to defend the record established by the now-retired leaders of the charge against all things Scruggs, including Zach.
Even with that consideration, “the undersigned” are accountable for putting the reportedly confidential polygraph on the record – but, in that regard, it’s not fair to ask what they were thinking. Clearly, they were not. The Government’s decision to make the polygraph results part of Zach’s record is indicative of unthinking – the unthinking emotional reaction commonly known as a knee jerk. Open to speculation is whether the mention resulted from the Government’s unthinking reaction or, if not both, the Government’s intent to distract Judge Biggers and replace what, if any, cognitive processing he might devote to Zach’s motion with an unthinking emotional reaction.
In either case, the paper trail from Oxford to Washington would make interesting reading. Research findings indicative of the reliability of polygraphs research also make for interesting reading.
Anxiety, for example, can distort polygraph results. Reportedly, Sid and Zach’s polygraph tests were administered “right after the plea agreements were entered”. I can’t imagine many things that would create more anxiety than knowing the government giving you a polygraph test was the same government that authorized Judge Lackey to ask for bribe money.
As if that alone weren’t enough, there is also the “scientific review of polygraph research…conducted by the National Academy of Sciences” for Judge Biggers to consider:
The Academy’s conclusion was assembled into a report called The Polygraph and Lie Detection. This report was presented to the…United States Congress. The Academy came to the conclusion that polygraph testing is deficient in fixed standards which makes it unscientific. In the report they wrote, “The inherent ambiguity of the physiological measures used in the polygraph suggest that further investments in improving the polygraph technique and interpretation will only bring modest improvements in accuracy” ( National Research Council, 2003, p 213). (emphasis added)
Another consideration was offered by David Lyyken, Professor Emeritus of Psychiatry and Psychology at the University of Minnesota. Lyyken held that an innocent person accused of a crime has a 50% chance of failing a polygraph test (Iacono, 2001). Zach’s Motion claims he is innocent; the government’s Response countered that his polygraph results showed “deception”. Of course, the exact wording of the questions wasn’t provided and that makes a difference:
Polygraph techniques are not standardized. The number and content of the questions vary. The way the test is scored differs. There is a great deal of subjectivity involved in scoring polygraph results (Costanzo, 2004)
The subjectivity of the polygraph, a decades-long controversy, resulted in Chief Justice Rehnquist stating:
I defer to no one in my confidence in federal judges…But I do not think [we should impose on them]…the obligation or the authority to become amateur scientists” (Daubert v.Merrell Dow Pharmaceuticals)
All considered, I have no expectation of anything other than Zach’s lawyers filing a reply in rebuttal to the Government’s response. Thus far, I’ve found nothing in the media indicating anyone feels Judge Biggers will do anything other than deny Zach’s motion. Nonetheless, one can always hope he follows the precedent set by the Fifth Circuit and dismisses USA v Scruggs for lack of federal jurisdiction.