Insurance Law

Scruggs Nation, Day 51: Counterattack of the Keker Brigade -- Dickie Scruggs was framed

By David Rossmiller

Good day once again to the Scruggs Nation.  A confluence of known and unknown deadlines and responsibilities of varying sorts -- unusually heavy even for my schedule -- robbed me of almost all blogging time yesterday and the night before, and Scruggs Nation posts take considerable prep time and effort.  Thanks for the outpouring of concern and support from across the Scruggs Nation. I have not been abducted, nor have I fallen ill from mysterious radioactive substances slipped into my red Yellowstone mug of decaf with the white moose silhouette.  I'm still trying to go through all the e-mails in my inbox, so I apologize if I haven't gotten back to you.  

First things first, here again are links to the documents on the USA v. Scruggs docket from yesterday and recent days. I've broken this up by sections so you can jump to what interests you most.

-- Bench memorandum of Judge Biggers. In it, he analyzes potential conflicts of interest from the recent lawyer switching in the case. Remember that, before Scruggs requested that Kenneth Coghlan join his defense team, Coghlan represented Steve Patterson, who pleaded guilty after Coghlan withdrew as Patterson's attorney.  If Dickie Scruggs were represented by Coghlan, as Scruggs has requested, Judge Biggers said, Scruggs

[C]ould later claim in a . . . petition challenging his conviction based on ineffective assistance of counsel, that counsel who represented Patterson "pulled punches" with respect to cross examination of Patterson should he be a government witness a the trial of Scruggs' case.

Moreover, he could also claim that counsel did not make full use of whatever privileged information he received as a result of his temporary representation of Patterson to help exonerate Scruggs. With respect to Patterson, he could latter claim that his impeachment with the use of privileged information adversely affected his ability to obtain a . . . motion for reduction of sentence. Likewise, the duty to provide privileged information to current client Scruggs could adversely affect Patterson whether or not Patterson enters a plea of guilty and testifies on behalf of the government. 

-- Here's a copy of Patterson's plea agreement. He pleaded guilty to conspiracy to commit bribery of an elected state official, and is subject to a maximum penalty of five years in prison, a $250,000 fine and three years of supervised release.  In handwriting on the second page, it says "The government agrees to take the position that the Defendant, as compared with other defendants in this case, was a minor participant with the meaning of  . . . the U.S. Sentencing Commission Guidelines Manual." 

-- Here's the order from Tuesday's hearing where Patterson changed his plea to guilty. (At the end of this post, there is a picture of the scene outside the courthouse from one of this blog's Oxford, Mississippi correspondents).

-- Minute order from yesterday's hearing. Judge Biggers granted Tony Farese's motion to withdraw as counsel for Zach Scruggs, and denied Coghlan's motion to appear for Dickie Scruggs, as he indicated he would do in the bench memorandum.

-- Nathan F. Garrett made a pro hac vice application to appear on behalf of Zach Scruggs, joining Todd P. Graves, who has his own page on Wikipedia (as do the Rigsby sisters, Kerri and Cori, of Katrina fame, in an article the neutrality of which is disputed). Judge Biggers approved the application in this document. Check out this resume, dude is definitely not off the rack.  It's been pointed out to me that I've spent time telling how impressive some of these defense lawyers are without mentioning the background of the prosecutors.  I am aware of the impressive qualities of these lawyers as well, and their day will come. The sun never sets on the Scruggs Nation, and has time, over time, to shine on all.

-- Here is another copy of the unsealed Motion for Continuance of Pretrial Motions Date and Trial Date.

The motion to seal the motion for continuance of the trial date was withdrawn and the trial date reset to March 31.  I think it was a very shrewd move by John Keker to file the motion on Friday and move that it be sealed, and then withdraw the motion to seal -- this increased the effect of and attention to what was in the motion: claims that Dickie Scruggs was framed by Judge Lackey and the feds. 

Keker appears to have a grasp of one fundamental rule of media relations -- bury bad news in the Friday night-Saturday morning cycle when no one is paying attention, and highlight good news by bringing it out early enough in the week to give it good play all week long, when everyone is watching.  Smart. But that's why he gets paid the really, really, really big bucks. How big? Remember the stories about how he was too expensive for the tastes of mega-multi-millionaire baseball player Barry Bonds?  Too expensive for Bonds? That's like saying the food in the buffet line is too rich for an NFL team's offensive linemen.

Now, for reasons that occasionally I have trouble remembering, my chosen fate is to spend virtually all my time around lawyers.  So I am aware of and wary of lawyer spin.  I admire good spin, and try to remember the method, tone and manner of presentation to perhaps use it myself sometime.  What we've got here is some pretty good spin, trying to make the best out of what's available.  However, while you can turn lemons into lemonade, it's hard to make lemonade out of manure.  This is not much of a surprise, they've indicated all along their strategy would include attacking Lackey and making Balducci out to be a freelancing klutz.

Pages 6 and 7 of the motion makes these interpretations of the evidence, designed to show that Dickie Scruggs was a victim of what is portrayed as Lackey's efforts to con Balducci into falsely claiming Scruggs knew what was going on. My comments are offset below each bullet point.

•  In the May 21, 2007 recorded meeting between Balducci and Lackey, it was the judge who suggested Scruggs was involved, saying "I just want to hear you say it again . . . you and Scruggs are the only ones who know anything about this?"

[Key word is again, which suggests he said it before.  In the indictment, page 5 -- (click here for a copy) -- the government alleges that on May 9, Balducci approached Lackey about a bribe and delivered the now famous "where the bodies are buried" speech, admittedly not on a par with Pericles' funeral oration for eloquence, but it, like Pericles' declamation, could be said to capture the moment in its own unique way.  Didn't I say two days ago that these guys needed to get that book off Amazon, Informers In Your Midst: 10 Telltale Signs from Constantly Asking You To Speak Up To Wearing An FBI Sweatshirt?

Also, what was Balducci's answer? Choices range from the following:

-- "Scruggs involved? Wherever would you get an idea like that?  Heck, I had to go rogue on this operation, he would never approve of dishonesty like this, no sir. I am tired of being a wannabe, I want to deliver the goods here and surprise him with this -- won't tell him it was a bribe, of course, I'll just say I told you you had a nice suit, and it made you think more kindly of us.  By the way, do I act like I have a complex? People keep saying that about me."

-- "How many times do I have to say this, this is not that hard of a concept, get with it."

-- "Hell yes, don't worry, no one else will ever know. Why are you always fixing your tie and straightening your desk? It's like you're expecting someone to come and take your picture."

• Balducci "says a number of times" he does not want Lackey to do anything improper, saying "you do what you feel comfortable with," and "I don't mean to make you uncomfortable, . . . if it's not something that you feel right about, you do what your heart tells you . . . I've got complete confidence that this is completely fine . . . I would never put . . . you in that position . . . I have complete confidence that it's fine." 

Once more, what's the context? Other interpretations include the following:

-- "Disclaimer. This message has been approved by my legal adviser, 'fine' should be taken for purposes of this communication to mean we won't get caught."

-- "Hey, it's natural to get a little nervous the first time out with bribery, don't sweat it, there's nothing to it!"

-- "It's not going to bother me no matter what you do, you make up your own mind, all we are talking about is whether you wanted a Diet Coke or some tea!"

• Balducci said that "frankly I think we're right and I think that the law is on our side and I think probably had I never even approached you, we'd have probably had the right result for us on this thing . . . My goal was simply to . . . tell you where, that I had an interest in this thing, and, if I could, to help guide you to where I thought this thing . . . legally could come."

Possible interpretations:

-- "I really don't respect your legal skills and figured you would get it wrong, even though it's soooo simple. So I figured, nothing says 'we're right' like filing a Motion for Me to Pay You Some Cash!"

-- "Don't pay any attention to the fact this is my second improper ex parte visit to your offices to discuss something I have no business sticking my face into, I just wanted to tell you I knew you would make the legally sound decision.  Call me overeager, but when someone deserves praise, I like to deliver the news in person."

-- "Dang, now that I found out you might have ruled for us anyway, I kind of feel like a fool.  Well, a deal's a deal, it's too late now, I said it, thanks for listening, and anyway, the funds have already been appropriated, I don't want to deal with this bookkeeping hassle, you take it anyway."

-- "I think it will make you feel better about accepting a bribe it we both try to pretend you would have ruled for us anyway."

• On May 9, Balducci asked Lackey whether he thought the Jones-Scruggs agreement required arbitration, and Lackey said, "It does . . . It looks like that's what they agreed to." 

This was the initial meeting, before Lackey went to authorities, so possible other statements by Lackey that were left out of the defense motion include.

-- "However, there are other legal considerations that strongly incline me to rule the other way, such as waiver. No dice, Balducci!"

-- "By it, of course, I am referring to the part of the contract where it says Jones was going to write the briefs in the Katrina cases."

-- "It does[n't] . . . [I'll tell you what, they never agreed to arbitration], It looks like that's what they agreed to!  Why are you here, anyway?"

In real estate, it's location, location, location.  With statements, it's context, context, context. There's more, read it for yourself and see what other interpretations you can think of.  Remember, we don't know all the evidence, we don't know where all this is going, and just remember, Keker could be right.

I know, there's more news to catch up on, I will talk about it as I can find time. I leave you with these excellent posts by Walter Olson at Overlawyered about Joey Langtson (Part I) and (Part II)(read all of it, it is truly great reporting by Walter), and the picture below outside the courthouse after Patterson's guilty plea.

Full post as published by Insurance Coverage Law Blog on January 17, 2008 (boomark / email).