I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Mike Moore on the Scruggs hearing, day two

The first half of Patsy Brumfield’s article today about yesterday’s hearing is all about Mike Moore’s post-trial statements.  She writes:

“I think we nailed them today,” Moore said after the two-day hearing in Oxford, which sought to convince Senior Judge Glen Davidson that 65-year-old Scruggs is innocent of a charge he pleaded guilty to […]

Why DeLaughter didn’t testify

As regulars may recall, DeLaughter filed a motion on Friday to quash his subpoena because he was going to assert the Fifth Amendment if called to the stand.  Scruggs objected to this and demanded DeLaughter be forced to assert the Fifth from the witness stand, an irony noted by Alan at YallPolitics.  On the […]

What Langston, Balducci, and Patterson said about whether there was a quid pro quo between Scruggs and DeLaughter

For a bribery conviction, there has to be a quid pro quo, an exchange of a thing for a thing (note that “things” can be intangible).  The “quo” part is really easy here, although Scruggs’s side is pretending otherwise:  Scruggs’s side got inside access to the judge, the ability to make arguments to the […]

Scruggs II trial: Balducci testimony

Tim Balducci was the Government’s only witness yesterday.  His testimony was pretty consistent to what he’s said before, although more than once he noted that he’s tried to put this behind him and not think about it, and that there are things he’s forgotten.

Balducci was a strong and believable witness.  The one part of his narrative (which has been there since the first time he testified) that has always sounded to pat to me is the story about the flaw in their response to the quantification motion.  He notes that they filed a response that had no backup documentation (affidavits or the like) and then got a ruling that accepted the facts that had no back-up.  He described this as a “fatal flaw” forcing them to go to settle the case to avoid an appeal.  That last bit seems overdramatized to me, although I could see Scruggs’s side worrying they might have overplayed their hand when they got such a sweeping ruling (zeroing out the Wilson claims) from DeLaughter.  Sometimes the effort to rehearse testimony to prepare for trial leads a witness to smooth over bumps in a way that makes it have too much narrative neatness– become too pat.  But other than that, he made a good witness for the Government.

Tim Balducci

Direct

Lives in Monroe County, Mississippi.

Describes his educational background: Graduated law school in 1991, practiced with Langston briefly.  Moved to Oxford and opened a firm with a partner.  Went through different entities until came back to work with Langston.

Remembers calling Bob Norman a few days after the confrontation by the FBI and asked to meet that morning, a Saturday.  He had been debriefed a couple of days before.  They had asked in passing if he was ever involved in anything like that before, and Balducci said no.  He decided he had to come clean and say that there was another case.   He told Norman about the DeLaughter case.  The federal authorities did not know about it.

The Luckey case was in federal court and the Wilson case in federal court in Hinds County.  In 2005, the Langston firm took over the lead in the Wilson case.  Balducci was doing the day to day work on the Wilson case thereafter.  Patterson and Balducci during this time were both employees of the Langston law firm.

Balducci flew to Jackson with Patterson and Langston to meet with Peters.  Balducci waited outside during the first meetings

Balducci says that a few days before, there was talk of paying Peters $50k.  “Joey asked me if I had it and I said that I did.”  Balducci saw Langston take the envelope with the cash to Jackson and Peters leave the meeting with the envelope.

Continue reading Scruggs II trial: Balducci testimony

Scruggs II trial: Langston cross-examination

Joey Langston

Cross

Both Wilson v. Scruggs and Jones v. Scruggs to some extent were screwed.

At the New Albany meeting, Scruggs was angry.  He said he wanted to fire Dunbar and Jones.  He characterized Merkel as a junkyard dog and needed someone like that to fight him.

Langston agreed that when Al Luckey took his case before an honest judge it cost Scruggs $17M.  Luckey was a companion case with Wilson with many of the same issues.  Luckey’s complaint centered on the rights of a former partner and Wilson’s was more of a contract dispute because they had a dissolution agreement.

Norman states that Scruggs at that meeting described Dunbar as “like an old woman.”

Langston does not specifically recall the statement there was to be no 1099, but there was no 1099.

There are a lot of things wrong with the hiring of Peters.  No entry of appearance by Peters.  Kirksey did enter an appearance and everyone knew he was in the case.

Norman referred to Peters’ statement that Delaughter would follow the law and asked—wasn’t DeLaughter already breaking the law by giving Peters secret access?

Isn’t a judge who is accepting an intangible such as the consideration for a federal judge violating state law?

Langston acknowledged there was something wrong with the contacts between Peters and DeLaughter.  It was more than unethical, it was illegal—Langston pled guilty to a felony involving this.  He came to that thinking that it was illegal.

It was improper and wrong about the ex parte communication.  Whether or not that, in and of itself, is a crime, the court will have to determine.  Certainly, Langston’s object was to gain “good will” which is a fancy way of saying they were trying to influence the judge, and that was wrong, it was improper.

Langston was concerned that if DeLaughter ruled for Scruggs on every issue, that would be a red flag.  They did not pick and choose the issues they wanted him to rule for them, and it would have been a red flag if he ruled for Scruggs on every issue.

Q.            When you dangled a federal judgeship before the judge, you didn’t take a federal judgeship to be a thing of value.
A.            I didn’t think it was a thing of value at the time.  The judge in this case is going to have to rule on that.  … Initially that did not occur to me, but as I had further discussions,” realized another view of it.

Did not ask Peters to have ex parte contact with DeLaughter, but learned of it when Peters talked about it.

The ex parte contact produced favorable treatment.  Peters going to to DeLaughter e parte and arguing our points is favorable treatment.

Scruggs knew about the $50K and about anything significant.  When Ed Peters reported anything of significance, as to who was right or wrong on various points of law….  [Norman interrupted the answer].

Continue reading Scruggs II trial: Langston cross-examination

Scruggs II trial: Joey Langston direct examination

I’ll comment later about this.  Here are my notes.

Joey Langston

Direct

Has known Dick Scruggs since the mid-90s.  He has worked on cases with him—a variety of cases, primarily plaintiff-oriented cases.  From time to time served as defense or resolution counsel for companies with claims against them.  Relationship was a professional and personal friendship.

Langston knows Patterson.  Has known him for over thirty years.  First met him when Langston was at Millsaps.

Langston hired Balducci in 1990 or 1991, he left after a year and came to Oxford.  Years later, he came to Booneville and asked if he could come back to Langston’s law firm and work there.  He worked until he left the second time in 2007.

Langston represented Scruggs in 2005 and 2006.  There were a lot of issues that came up.  As far as pending litigation the Luckey and Wilson cases were the two prominent cases pending at that time that Langston helped on.  He got involved in the Wilson case.  Generally, the Wilson case was a fee dispute among lawyers.  Wilson claimed Scruggs owed asbestos fees.  Later he amended his suit to include a claim for tobacco fees.  Chronologically, the Luckey case was tried first in an arbitration.  The Wilson case came after that, and Langston was more actively involved in the trial of the Wilson case.  Langston read the pleadings and briefs in the case, as did Balducci.  There was a lot of motion practice in the case, which had gone on for ten years.  They read up on it, talked to other lawyers about it.  Made an assessment.  Langston felt very good about it, and expressed to Dick and the other lawyers involved that, if he did not prevail pretrial with dispositive motions, he would prevail at trial.  Langston was hired after the Luckey arbitration decision.

At the meeting Langston and Scruggs had in New Albany—it was a logical meeting place half-way between Oxford and New Albany.  They discussed the Luckey and Wilson cases.  They were related.  The Luckey case was arbitrated.  Langston was involved—“We had initially prepared for and planned to try the case.”  Had done mock trials and was pleased with the result in those.  Had spent time on legal issues and were confident they were in good shape there.  Thought they’d win at trial.  There was a difference of opinion among the lawyers on Scruggs’s side, and it was thought to end the case by arbitration.  Langston was against that because of the rights to trial by jury and appeal and pretrial practice that would be given up, and liked what he’d learned in the mock trials.  Langston did not prevail in that recommendation and it went to arbitration.  The arbitrator ruled against Scruggs and awarded a lot of money.  Scruggs thought it was not correct and was angry at those who recommended arbitration.  These were the same lawyers who were also in the Wilson case, and Scruggs wanted Langston to take a more active role in the Wilson case.

As Langston recalls, the idea to hire Ed Peters must have been in the fall of 2005.  He recalls Dick saying a lawyer from Jackson had said to him, “Look, if you have got a case in Hinds County and DeLaughter has got it, it is smart to associate Ed Peters.”  That became more of a factor because the other side had hired Bill Kirksey, who had been a partner of Judge DeLaughter’s.  Langston and Scruggs did not know DeLaughter.  It then fell to Langston to hire Ed Peters.  Langston did not know Peters, although Steve Patterson did.  Langston went to Steve’s office (Patterson was not employed by Langston but had a consulting firm with an office there) and said “Hey, we are going to take a more active role.  It’s been assigned to Judge DeLaughter, and it’s been suggested we hire Ed Peters.”  Patterson said yes and that he’d call him.   Steve reported that Peters agreed to work on the case, but that “we need to pay him $50,000 in cash.”  This must have been an idea hatched when Peters and Patterson spoke.  First person Langston heard this from was Steve.  Langston said, “I don’t have $50,000 in cash, how would I do that.”  Balducci, to Langston’s surprise, said “I do, I’ll put it up.”

Continue reading Scruggs II trial: Joey Langston direct examination

Scruggs II trial, Day Two: Steve Funderburg describes the history of the Wilson case

The first morning witness of the second day was Steve Funderburg.  His firm (also Johnny Jones’s firm) represented Scruggs in the Wilson case; he described the history.  Scruggs sought to establish that Funderburg, operating honestly and unaware of Peters’s contact with DeLaughter, thought they were taking positions they believed correct and that Funderburg (and not Balducci) was taking the lead in drafting pleadings.  He provided a lot of history of the case.

A couple of major points that Scruggs’s team is attempting make are that, first, the decisions in 2005-2006 (during the period Peters was acting behind the scenes) were all the logical result of a 2002 order, and thus not any corrupt deal, and, second, that the decisions weren’t hanging out there waiting to be made at the time of the March 2006 call from Trent Lott– they were made either before than (January of 2006) or after (July of 2006).  The prosecution is countering that there was corrupt contact and it was an advantage for the Scruggs team, and that, what Scruggs’s team sought was to get advantages in discretion calls that could not be reversed on appeal.  The points the Scruggs team is making seem glancing blows to me:  The question still comes down to whether consideration for the federal bench is of value and whether that was dangled out before DeLaughter as a part of an effort to influence him.

Here’s my notes on Funderburg’s testimony.

Steve Funderburg

Direct

Been a partner in firm since 2000.  Has been practicing since 94.  Is familiar with Wilson v. Scruggs from performing some legal work in the case.  Firm was representing Dickie Scruggs.  His role was primarily research and legal writing, did some argument in October of 2005.  He is familiar with Tim Balducci.  He was part of the defense team.

Steve’s role vs. Tim’s role:  Tim did a lot of what Steve did later in the case, would participate in some of the legal writing, wrote some things.  Would review some things Steve would prepare and make some edits to that.  Does not know if Tim did his own legal research.  From about the Summer of 05 until mid-January of 06, Steve was involved without input from Balducci.  From mid-January, Balducci was involved pretty heavily.  After Balducci was involved, Steve did not draft pleadings in March of 06 or April 06.  Steve’s firm was asked to put the brakes on some of the work, but after was asked to be engaged again and then worked full-time May, June, July and August of 06.    Steve was drafting pleadings and sending them on to Balducci for input.

Continue reading Scruggs II trial, Day Two: Steve Funderburg describes the history of the Wilson case

Scruggs II hearing, first day testimony (part two of two)

Steve Patterson was the primary witness in the afternoon.

The Scruggs side’s big effort through Lott’s testimony was to show that Lott’s call to DeLaughter was no big deal, a courtesy extended to Scruggs that Lott would have extended to any Mississippian.

Steve Patterson’s testimony did not reinforce that impression; he testified about how much Peters wanted to help DeLaughter get a position on the federal bench, and how this was discussed in the meetings over Peters’s corrupt contacts with DeLaughter.

I’ll note here that Scruggs’s lawyers have repeatedly acknowledged that the ex parte contact with DeLaughtet was corrupt.

He went to lengths to say that he and Langston told Peters that their effort to get Scruggs to call Lott had no linkage, but those perfunctory denials are about as credible as Patterson’s claim there was “nothing sinister” about paying Peters $50,000 in cash.

The single greatest thing that Patterson did to dissipate the impression was what Patterson said when told that they were having Scruggs ask Lott to call DeLaughter.  Patterson thought it was insane to mention out the federal judgeship and said so, because “why by the cow when you can get the milk.”  Patterson said, “It was unnecessary because they were already getting the benefit of Peters.  It was unneeded.  Peters was getting what he was getting because of the father-son relationship between Peters and DeLaughter.  The influence by Peters was occurring well before the federal judgeship came up.”

Scruggs has to prove actual innocence.  It is hard to see him accomplishing that with this testimony, combined with Patterson’s testimony that Peters brought up the judicial position during these secret and concededly corrupt meetings, and with DeLaughter’s letter thanking Lott for “consideration” for the federal bench after that call from Senator Lott.

Here’s my notes from Patterson’s testimony.  I’ll have more comments about how it’s going with my notes from opening statements.

Steve Patterson 

Direct

Continue reading Scruggs II hearing, first day testimony (part two of two)

Scruggs II hearing, first day testimony (part one of two)

Here are my notes, with minimal comment, about three of the witnesses who testified today.

Trent Lott

Direct Exam

Dickie Scruggs is not a gatekeeper for judicial nominations.

Lott and Cochran have a clear relationship about judicial nominations.  Scruggs never had influence on Lott’s selection of judges.  Lott and Scruggs had different backgrounds and perspective.  He was not someone I consulted.   He knew his weighing in might have reverse effect, based on philosophy and what I looked for.

Lott described what Lott looked for.

In DeLaughter’s instance, letters and faxes would come in and be filed.  He’s not sure how much.  He was aware he received a letter from DeLaughter, but wasn’t aware of it, then later got another letter after Lott talked to DeLaughter.

John Corlew, a lawyer friend of Lott’s faxed DeLaughter’s resume to Senator Lott.  Corlew is the kind of person Lott would consult about judges.

Lott did not depend on Scruggs for recommendations for federal judges.

Ex. 17 is a 3/10 letter from DeLaughter to Lott.  Ex. 18 is a 3/30 letter from DeLaughter.

Lott doesn’t recall the 3/10 letter; it may have gone to the Jackson office.

Continue reading Scruggs II hearing, first day testimony (part one of two)

Scruggs II afternoon update

The big news from the courtroom today is that Ed Peters won’t testify.  The lawyers for both the Government and Scruggs says that Cynthia Stewart, Peters’s lawyer, stated that he is so deaf he could not hear the questions, and so they are using his FBI interview statements and his grand jury testimony.

This […]