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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David Sanders and the 404(b) proof

There were two primary witnesses this morning, one, Magistrate Judge David Sanders, who was focused on the 404(b) proof, and the other, a former Scruggs Law Firm partner, David Shelton, who was the one partner not indicted in the Lackey case.

Judge Sanders was an Assistant US Attorney for six years in the Northern District, and was with Bob Norman and Tom Dawson prosecuting Scruggs I. He was asked about Bob Norman’s statement about Joey Langston and began by making clear that Langston had not been interviewed about Zach before that day– which meant the only conversation the prosecutors had was when Norman asked Langston “Did Zach know” and Langston said “Yes,” just before the February hearing.  Sanders testified positively that, when they got the facts, he personally corrected what the testimony would be by telling Zach’s lawyers.

He was asked about a Government response on the 404(b) proof that was filed just before Zach’s plea, in which Government said nothing changed about that evidence.  David Sanders signed that document.  He testified:

I have obviously thought a lot about this.  I read the transcript.  The only explanation I can give you for that, when Bob said what he said at the hearing, in February I believe it was, at the time I had not talked to Joey about Zach, I would not have thought anything about it because Bob had been talking to Joey.  After that, at some point, I don’t remember whether to you or to Nathan Garratt or both of you, I don’t recall negotiating with Todd Graves, and I remember distinctly you guys asking what we had from Joey on Scruggs II, and I remember telling you that Joey is not going to testify that Zach Scruggs knew about dangling the federal judgeship.  I remember correcting it with you.  The reality was that I knew this issue was not uppermost, I knew that that issue had been cleared up.  After we came up with the misprision deal, after that we signed the document.  The only explanation I can give, I was focused on the plea deal.  I read the document. All I can say is that in my mind, that issue with Bob Norman any longer.  I understand the court’s ruling and understand it is still out there.

This testimony has to do great damage to the argument that, when Zach Scruggs entered his plea, he did so under a misleading understanding about Joey Langston’s testimony.

More in a bit.

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