Today, the Mississippi Supreme Court ruled that they were going to explicitly remove Judge DeLaughter, and refused to grant the Judicial Performance Commission’s motion to dismiss its proceeding against DeLaughter, a motion based on DeLaughter’s resignation from the bench at the time of his guilty plea.

The majority thinks that this particular case doesn’t just require a grave and a coffin, there’s a need for an oaken stake (I’m not entirely encouraged to see that I’ve already used this metaphor describing a Judicial Performance case, when the Court debated whether it could sanction Judge Solomon Osborne after he’d resigned.  The question of whether the Court can act regarding a judge who has already quit seems to be something that’s really on its mind).  And so, with a majority opinion by Justice Graves, they decline the Judicial Performance Commission’s motion to dismiss the complaint against Judge DeLaughter, ruling they want to make sure he’s permanently given the boot.

Chief Justice Waller dissents, focusing on constitutional language to argue the Court had no authority to act without a referral from the Judicial Performance Commission.  Judge Dickinson also dissents (each joining the other’s opinion in part.  I’m somewhat frustrated by these join-the-opinion-in-part votes that don’t fully explain which part is joined and which isn’t). Justice Dickinson’s point is intensely practical:  “a judge who has already resigned from office cannot be removed from office.”

Even the most casual reader of this blog will learn nothing about the facts relating to Judge DeLaughter’s fall from the opinions in this case.

The upshot is that, like the players on the Chicago White Sox who threw the 1919 World Series, Judge DeLaughter is permanently banned.

Will Bardwell caught (and blogged about) this one first.

What remains of Wilson v. Scruggs is in the Federal District Court for the Northern District of Mississippi.  As I’ve posted earlier, Wilson has settled with Scruggs and Langston but continues to pursue Patterson, Peters, and Balducci (the last filed a pleading admitting liability but asserting other defendants were primarily liable).  The case is before Judge Hittner of Houston because of recusals, and Steve Patterson filed a motion to dismiss Wilson’s claim.  I thought I’d posted about it but apparently had not– the only thing I can find about it on the web has the document along with a post touting the mighty force of the advocacy in Patterson’s motion to dismiss as “dismantling” Wilson’s RICO claim.

Well, Judge Hittner rules on motion and the effect of that mighty dismantling force is…

… not much.  He’s read it, he’s considered it, and out it goes.  Motion denied.  Oh, and also, counsel:  Send us those filings in 14 point type from here on in.  Judge Hittner, as is his usual practice at least in these Mississippi cases, gets straight and directly to the point.

The order is here.

I posted about the original filing of this case on Folo.

http://www.clarionledger.com/assets/pdf/D0152201219.PDF

Hinds County Circuit Judge Winston Kidd has ruled against State Auditor Stacey Pickering in Langston/Balducci/Quin MCI-WorldCom outside counsel legal fee case.

In the ruling, Kidd holds that $14 million in outside counsel legal fees paid to former Booneville attorneys Joey Langston, Tim Balducci and Billy Quin (then of the Lundy & Davis) firm were not state funds and granted a summary judgement sought by the Attorney General’s Office.

Current Republican Lt. Gov. Phil Bryant, while serving as state auditor in 2006, filed suit to get the $14 million back – claiming the legal fees belonged to the state and must under law be appropriated by the Legislature. Current Republican State Auditor Stacy Pickering carried on the Bryant lawsuit.

In 2007, the outside counsel issue became secondary in the old Kirk Fordice-Mike Moore battle over the state’s tobacco lawsuit when Republican Gov. Haley Barbour successfully challenged the Jackson County Chancery Court order that funneled settlement funds to the Partnership.

The state Supreme Court said the diversion of funds from the appropriations process was illegal – which killed the Partnership while angering House Democrats and public health advocacy groups who saw the Partnership as an effective public health initiative.

The outside counsel battle became even more convoluted when Langston and Balducci entered guilty pleas in the judicial bribery scandal that ruined Scruggs.

Two stories that might be of interest to folks following the Scruggs case.  First, Patsy Brumfield writes about the resolution of the case involving Ed Peters’s “fee.”

The second is a tad more obscure, and I’ll present it in the form of a Scruggs trivia question:  The discrimination claims of Black farmers against the Agriculture Department is in the news.  Who remembers what bit part that played in the Scruggs saga?

Recall that the first substantial public evidence that Ed Peters had “come in” and become to some degree a government witness was a forfeiture action filed between Christmas and New Years in 2008, in which the Government alleged that he had surrendered to them $425,000 that remained of his million dollar fee for helping Joey Langston and Tim Balducci get to Judge DeLaughter in the fee dispute between Roberts Wilson and Dickie Scruggs.  After the suit was filed, Roberts Wilson jumped in, asserting that these ill-gotten gains should have been his, because they came from Scruggs and would have been money paid to Wilson if the Wilson v. Scruggs case had been resolved honestly.

The suit was initially before Judge Biggers, who recused himself because he had issues before him in Scruggs I. A Texas federal judge was appointed to take this and other civil cases relating to Dickie Scruggs in the Northern District, and this case was set for trial later this Spring.

Today, a consent judgment was entered in the forfieture case.  By its terms, $280K of the money will be paid to Roberts Wilson, and the remaining $145K will go to the United States Treasury.   This has to be viewed as a good result for Wilson.

Here’s the US v 425000 consent judgment

Paul Quinn reported in yesterday’s Oxford Enterprise (not available online??):

Just a few months after finally reaching a settlement with Dickie Scruggs in a lawsuit stretching back 15 years, attorney William Roberts Wilson has moved into the office space that once housed his nemesis’ law firm on Oxford’s Square.

“Ever since watching ‘Intruder in the Dust,’ I’ve wanted an office on the Square,” Wilson said. He had previously worked out of Tuscaloosa, but he said that, after a decade and a half of financial issues, he could afford to make the move.

Wilson said he’s excited about living in Oxford. His wife is currently looking into buying a house in the area.

Asked if obtaining Scruggs’ old office was part of the settlement, Wilson said he could not talk about the settlement. “I gave my word, and I am a man of my word,” Wilson said.

However, land records show that Scruggs sold the office space to a Memphis-based law firm on Dec. 9 – three weeks after Wilson and Scruggs settled for an undisclosed amount of money in November. The Memphis firm then sold the office to Wilson on Feb. 3. …Wilson would not answer questions about how he came to purchase the office.

The Wilson Law Firm was still in the unpacking stage Tuesday. Wilson said he is mostly doing asbestos litigation.

A Clarion Ledger article about Jim Hood and lawsuits filed by Jim Hood on behalf of the state involving contracts with outside attorneys focuses on the political issue (“pay to play”) to the point of sacrificing telling the story with any clarity.  Allowing the story to be framed by the politics of attacking Jim Hood over pay-to-play utterly sacrifices coherence, and, in doing so, the story fails to connect up obvious questions.

The story mentions a lawyer in Texas pursuing a recent drug case:

Bailey, who helped represent Texas in the multi-state lawsuit against Big Tobacco in the 1990s, recently has helped net millions of dollars for five states – including Mississippi – over claims their Medicaid and health insurance programs were overcharged for antipsychotic drugs.

Drugmaker Eli Lilly and Co. will pay Mississippi $18.5 million – what it spent on Zyprexa, plus some.

But because Bailey and his firm have contributed thousands of dollars to state attorneys general – including $75,000 to Mississippi Attorney General Jim Hood – a business organization has made him the target of its campaign to shed light on the relationships between elected officials and trial lawyers who sue on behalf of states. ….

Jackson-area attorney Billy Quin, who holds the contract with Hood’s office to represent the state in these cases over antipsychotic drugs, will receive almost $1 million.

Quin said a similar suit against Janssen pharmaceutical company, the maker of Risperdal, is pending in state court in Chickasaw County.

Other states also have filed suits against AstraZeneca, which makes Seroquel. Mississippi has not, Quin said.

Mississippi charged that Eli Lilly promoted Zypreza, approved to treat bipolar disorder and schizophrenia, for off-label uses such as mild depression, and that harmful side effects including weight gain,caused more harm than good.

In settling with Mississippi, Eli Lilly admitted no wrongdoing.

In early 2009, Eli Lilly agreed to pay a $615 million criminal fine after the federal government charged the company with a misdemeanor violation of the Food, Drug and Cosmetic Act.

The contract Quin holds was originally awarded to now-disbarred and jailed attorney Joey Langston. It was Langston, also a large contributor to Hood, who first associated with Bailey’s Texas firm.

Bailey said he got to know Langston as they both fought asbestos-related cases.

Bailey said they coincidently own vacation homes next to one another in the ski-resort community of Telluride, Colo.

“I had the place for several years and next thing I know, I look up and there’s Joey Langston, and I said, ‘What are you doing here?’ How unusual is that?” Bailey said.

Langston pleaded guilty in 2008 to judicial bribery in an unrelated case.

Quin, Langton’s former law partner, said he decided to keep Bailey on board after receiving the contract. From all the state settlements, Bailey said he has earned about $5 million. …

f an attorney brings an idea for a lawsuit to his office, and the case seems worth pursuing, that attorney gets the contract, Hood said. Hood said he does not stipulate with whom that attorney partners.The only exception, Hood said, was when Quin brought the MCI/WorldCom back taxes case to him several years ago.

Hood didn’t know Quin, then a 32-year-old Louisiana resident, so he shopped the case to other lawyers. Hood said Langston, who employed Quin after that case, was the only one who would work with him on the deal.

Hood said he put Langston’s name on the contract because Langston was a campaign donor, and he didn’t want it to hide Langston’s involvement.

Hood said claims that something unethical is going on are misguided. …

Bryant, a Republican, said the Legislature should appropriate attorneys’ fee awards so that there is a money trail.

While serving as auditor, Bryant filed suit in 2006 against The Langston Law Firm related to $14 million in fees paid over the MCI/WorldCom back-taxes deal, which brought in $110 million for the state in 2005.

Current auditor Stacey Pickering took over the fees lawsuit after Bryant was elected lieutenant governor.

A hearing related to the fees is set for Tuesday. A judge will hear arguments over whether $10 million in attorney fees paid in the recent Microsoft deal should remain in a reserve fund while the MCI fees dispute is pending.

Quin said the attorneys work hard, shoulder enormous risk and deserve the money.

“I believe to the core of my being that the funds in the WorldCom case and the Eli Lilly case are not state funds,” Quin said. “The auditor has no business doing what he has done with respect to both the Microsoft fees and the WorldCom fees.”

The Clarion Ledger had an article about the question of whether the SD Mississippi U.S. Attorney has been recused in the Minor case, prompted by a filing by assistants down there relating to Judge Teel, one of the defendants.

Officials in the U.S. attorney’s office for the Southern District of Mississippi have repeatedly said the office removed itself from the case of former Gulf Coast attorney Paul Minor and two former judges.

But last week, Ruth Morgan of Gulfport, an assistant U.S. attorney in that office, argued in court papers that former Chancery Judge Wes Teel should remain in prison until he is resentenced.

In December, a three-judge panel of 5th U.S. Circuit Court of Appeals threw out the bribery convictions of Minor, Teel and former Harrison County Circuit Judge John Whitfield, citing a lack of federal jurisdiction.

The men could be sentenced again on the remaining charges, but Teel wants out of jail until that sentencing.

“Throughout this case, it has gone back and forth whether the local U.S. attorney’s office has recused itself, but they keep popping up,” Teel’s attorney, Assistant Federal Public Defender George Lucas, said Tuesday. “It appears their perception of a recusal is different than mine.”

But interim U.S. Attorney Don Burkhalter of the Southern District said his office is indeed recused from the case, with the exception of two attorneys. He said Morgan and Dave Fulcher are working with the Department of Justice on court filings in the trio’s appeal, but he is not involved.

“You don’t see my signature on the motion,” Burkhalter said.

Morgan and Fulcher were the local assistant U.S. attorneys who along with a Justice Department attorney prosecuted Minor, Teel and Whitfield in a judiciary bribery case.

h/t YallPolitics.

The photo above, by Eli Williams for the Oxford Enterprise, of Hal Neilson leaving his arraignment.

Paul Quinn has a story about the Hal Neilson arraignment in yesterday’s Oxford Enterprise and the reports about whether or not he was a whistleblower.  Paul has talked to a lot of different camps– defense lawyers from the Scruggs case, folks inside the US attorneys office, etc., and has lots of interesting (if inconclusive) datapoints.

The story is on the Oxford Enterprise website (no permalinks, so it will be gone on Sunday next), which on my browser (Firefox on a Mac) comes up looking very strange. Looks ok in Safari.  Anyhow, here’s the story:

The case surrounding FBI agent Phillip Halbert “Hal” Neilson is shaping up to be a politically charged one, as allegations fly about a troubled relationship between Neilson and recently retired U.S. Attorney Jim Greenlee that had gone on for years in the Northern District of Mississippi.

Neilson pleaded not guilty Monday to a five-count indictment alleging that he concealed his ownership in the FBI building that he supervised and lied on financial disclosure documents he was required to fill out yearly. There wasn’t an empty seat in the small courtroom on the second floor of the U.S. District Courthouse.

Magistrate Judge S. Allan Alexander set a $5,000 bond and required Neilson to turn over his passport. She also set a trial date for March 8 with a plea agreement deadline on Feb. 22.

Neilson left the courthouse swiftly Monday without making any statement to the media. His lawyer, Ken Coghlan, didn’t have a comment.

Assistant U.S. Attorneys from the Baton Rouge office told the judge at the hearing that they had discovery ready to turn over to Neilson’s defense, but they would not comment to the press after the hearing.

Days before the arraignment, a story in the Northeast Mississippi Daily Journal described e-mails Neilson sent to members of the Mississippi congressional delegation, saying he felt Greenlee was out to get him.

The Oxford Enterprise could not obtain the e-mails. U.S. District 1 Rep. Travis Childers’ press spokeswoman said, “Sorry, I can’t discuss the content of constituent mail.”

The Daily Journal article said the e-mails were not supplied by Neilson. The e-mails were reportedly sent to congressional members only months ago, after Neilson learned he was under investigation for his alleged secret ownership in the FBI building.

Neilson claims, according to The Daily Journal, that he came under attack after seeking whistle-blower protection from Greenlee. Neilson said he believed that Greenlee illegally targeted people with Muslim sounding names in the so-called Convenience Store Initiative, which began as an investigation into possible terrorist activities but became a major drug case instead.

Knowledgeable sources have told The Oxford Enterprise that there were some disagreements between Neilson and the U.S. Attorney’s office, but, when Neilson sought whistle-blower protection, they were “shocked” by his complaints. One veteran prosecutor said there was no merit to Neilson’s claims.

In Neilson’s e-mail to the delegation, he claims it was after he sought whistle-blower protection that he started to be excluded from cases — including the judicial bribery scandal surrounding Dickie Scruggs.

However, multiple people who worked on the Scruggs investigation told The Oxford Enterprise that they were worried Nielson was a leak to the media. They feared Scruggs would catch wind of the investigation before they had all the evidence they needed to get convictions.

At least one lawyer who worked for a Scruggs defendant claimed Neilson leaked information to The Clarion-Ledger about his client after the indictments against Scruggs were unsealed. This lawyer said he doesn’t buy Neilson’s argument that Greenlee is out to get him and that he is simply blowing smoke.

But another attorney who worked for a defendant in a case Neilson raised issues over said he thought there was a political aspect to his client’s prosecution and that Neilson may have been on to something.

All the people who spoke to The Oxford Enterprise asked to remain anonymous.
Sources also say that Neilson’s part ownership of the FBI building was discovered after a local contractor tipped off the U.S. Attorney’s office. U.S. Attorneys thought there was a possible ethical violation and reported the information to the U.S. Inspector General’s Office, which determined it was a criminal matter and assigned the case to the Baton Rouge prosecutors.

Greenlee’s office was recused from the case because Neilson still had to work with federal attorneys here even while he was being investigated.

A call to Greenlee’s home for comments was not returned. But Greenlee, in an interview published two weeks ago in The Enterprise, said his office did nothing wrong in the Convenience Store Initiative. “This office has always done what it’s supposed to do for the right reasons,” he said.

Neilson also reportedly e-mailed the congressional delegation that he was removed from the Mississippi Beef Processors Plant investigation after one year. According to the Daily Journal, Greenlee thought the case was at a standstill when Neilson was in charge. In his e-mail, Neilson said any hold-up was because Greenlee was trying to steer the case.

Last week, the deadline arrived for rehearing petitions in the Paul Minor case.  There had been two extensions of the deadline, one agreed by all parties that bumped it past the first of the year, and a second because of the blizzard in Washington– the Solicitor General had to pass on any en banc petitions, and the holidays and the blizzard interfered.  As it turns out, the Justice Department decided to do nothing and leave the ruling about federal program bribery stand (the panel opinion had held that there had to be a connection between the decision about the bribe and the federal funds for prosecutions under 18 USC §666, the federal program bribery statute.  Barring a successful cert petition by the Government, that’s now the law in the Fifth Circuit).  The two judges (Teel and Whitfield) did not file rehearing petitions, either.

Minor did file one, focusing mostly on one issue:  His contention that the jury was not instructed that a quid pro quo (or exchange– basically an agreement of some sort that if Minor gave the judge the cash, the judge would do something inappropriate for Minor) was required for bribery.  The rehearing petition essentially argues that the panel opinion more-or-less got the legal requirement right but really didn’t recognize that the instructions didn’t meet those legal requirements.   A secondary issue argues that the trial court’s $1.5M restitution order based on the USF&G case was in error.

There’s a footnote nodding to those “honest services” cases before the Supreme Court.  Recall that I’d posted about that issue as a “dog that didn’t bark” in Minor’s briefing and the panel opinion.  Here’s the footnote:

The Supreme Court is now considering three cases dealing with the “honest services fraud” statute, 18 U.S.C. § 1346. See United States v. Black, No. 08-876 (argued 12/8/09); United States v. Weyhrauch, No. 08-1196 (argued 12/8/09); Skilling v. United States, No. 08-1394 (argument set for 3/1/10). The Supreme Court may very well decide that the statute is unconstitutional or otherwise limit the statute in ways that impact this case. Consequently, this Court may wish to hold this petition in abeyance until the Supreme Court rules in those cases.

Here’s my original post about the panel opinion, and a post about “is it wrong vs. is it a crime.”

Finally, here’s the Minor Rehearing Petition (without the attached panel opinion).