The Government wins.
Higginbotham wrote the opinion. It has a long statement of facts, including twice stating that Backstrom lied under oath about conversations with Balducci (and, in doing so, accepting Balducci’s account). These statements are not couched in terms of the scope of review but more as factual observation– the court notes that the phone records show that the calls occurred, corroborating Balducci’s account. There’s one factual mistake, I think– the court notes that Langston was arrested December 10, 2007. I don’t think that is so (his office was search about then).
The opinion rejects the jurisdiction argument as not properly raised, but then goes on to reject it on the merits, noting that there is a difference between raising failure of the facts to show jurisdiction before and after judgment. The court looks to the indictment without going behind it (what I thought would be the result) and rejects the argument.
The court rejects the ineffectiveness argument by ruling that there is no showing Zach was harmed by any conflict, and the argument of prosecutorial misconduct by ruling that Zach did not show the comment from the prosecutor induced him to plea. Finally, because the other claims fail on merits, the court took the view that it did not have to reach the question of Zach’s actual innocence, although the facts they state suggest it would not have helped Zach had they decided they needed to answer that question.
The Fifth Circuit opinion is here. More about it later.
Are these cretins now out of legitimate appeals/challenges? Damn, Zach, just buy an island and fade away…
C-E-R-T! C-E-R-T!
… This is beautifully concise:
“Actual innocence” is not a free-standing ground for relief. Rather, it is a gateway to consideration of claims of constitutional error that otherwise would be barred from review.
What’s next in the dead horse beating after this? En banc?
No, Terminator.
Yep, Anderson, and yes, en banc it will be. Although they might take the no-stone-unturned approach of going for a panel rehearing. After all, there’s that mistake about Langston being arrested.
How does that help show the result was wrong? Why, the panel was wrong about something! Falsus in uno! There! That’s the ticket!
Is Dick Scruggs out of the appellate wrangling yet?
He’s just getting started.
What about the Rigsby Sisters and Mary Lobrano? What’s up with them? And what about Sid Backstrom? He always seemed to be cut from a little finer cloth than the rest of them. Did he decide to lay low for a few years, live it down, and come back, contritely, seeking to be readmitted to the Bar? If so, I’d vote to re-admit him on “rehabilitation done” grounds, but it would be hard to want to give a shingle back to those who “don’t get it” and remain hellbent on clinging to assertions of “actual innocence” with all that rank evidence to the contrary repeated, repeated, repeated in court orders high, low and in between. Why not call a press conference and say: “I’m sorry. I was so wrapped up in winning, winning, winning — even with millions in the bank, already — that I lost my moral compass”? That might turn around the PR imbroglio and appeal to the part of all of us, no matter how critcal we are of the crimes, that roots for the underdog, champions redemption, and remembers that part of the Sermon on the Mount about “casting the first stone.”
Backstrom can’t be readmitted. See R. Discipline Miss. Bar 12(c) (“An attorney who has been disbarred for conviction of a felony criminal offense which occurred after April 4, 2002, in a court of this state or any other state, or a court of the United States for any felony crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, the sale or distribution of a controlled substance, or an attempt, conspiracy or solicitation of another to commit such a crime, shall be ineligible for reinstatement to the practice of law.”).
John: Is that the “Walter Nixon Rule,” or do we have some other distinguished attorney to thank?
Good rule.
Well, I’m sorry, but actual innocence should be a freestanding ground for relief, period (yes, I know, Scalia and I disagree on this). Based on that one statement I hope Zach continues to pursue this appeal and eventually wins.
ColRebSez, that’s worth pursuing, because (ordinarily) I think actual innocence should provide relief.
Here we have a number of issues, each that should be addressed individually. I would suggest by number.
1.: A guilty plea.
How does that effect a claim of actual innocence? On the one hand, particularly given the pressures the Federal Sentencing Guidelines impose, I am hugely sympathetic to claims that a guilty plea was produced by unfair leverage. On the other hand, where the defendant is a lawyer, advised by extremely competent lawyers, and he pleas, isn’t that some sort of waiver? Can they always reopen by showing “innocence?” Surely not.
2. The lack of any sort of claim suggesting a problem with the prosecution.
Here’s where the gating argument in the Fifth Circuit opinion comes into play. The Fifth Circuit is holding that, a counseled guilty plea won’t allow relief on a showing of actual innocence without a showing of some other defect in the plea.
y
I’m asking folks how the feel about that…
It now seems rather clear that the federal judiciary is simply not putting the Scruggs/Snopes clan back in business , pater aut filius.
This is welcome news for the forces for good in Mississippi.
NMC,
I know someone who “beat” the government on a charge. And they sat him down in a room and said, okay, you beat us, but we have your files, and we’re going to find something else to charge you with. And if that doesn’t stick, we’ll find something else. And we all know that eventually we’ll find something that will stick. So the guy pled guilty to a minor charge. That’s the kind of pressure they put on people, and I think it’s wrong, and to some extent it’s the kind of pressure that was put on Zach Scruggs.
I think if he can demonstrate his innocence, or for that matter even demonstrate that there is no evidence of guilt, then his verdict should be overturned.
I think CRS would have a point about the Feds if Zach was just a regular guy. But a Million dollar trial lawyer is hard to push around. Anyway Zach can always hope for a pardon-money is politics-politics is money and Zach still has a bunch of it.
How much does a pardon cost?
If a pardon were available – at any price – do you think Dickie would still be in jail?
okay, you beat us, but we have your files, and we’re going to find something else to charge you with. And if that doesn’t stick, we’ll find something else. And we all know that eventually we’ll find something that will stick.
The wicked flee where no man pursueth. If Zach had nothing to fear, he should’ve laughed at the feds and told them to put up or shut up. I would do that long before I accepted disbarment.
Not that it really matters, and this is totally off-topic, but casting the first stone isn’t from the sermon on the mount. It’s from the very questionable story about the woman caught in adultery.
“Questionable” — I think 2DB means that the textual evidence suggests the story is not in the earliest manuscripts we possess.
It may rely on some alternative tradition, and in any event has been endorsed by the major denominations for lo these many years.
“2. The lack of any sort of claim suggesting a problem with the prosecution.
Here’s where the gating argument in the Fifth Circuit opinion comes into play. The Fifth Circuit is holding that, a counseled guilty plea won’t allow relief on a showing of actual innocence without a showing of some other defect in the plea.
I’m asking folks how the feel about that…”
That’s an interesting dilemma under normal circumstances and it seems to me to be unfair even under “normal” circumstances.
Zach’s case is not a normal circumstance. He pled to knowing about the earwigging and even the Judge said he was not admitting anything to do with bribery. So in this case we have him pleading to a crime that isn’t even a crime anymore. Which seems even more unfair not to at least hear.
I’m thinking that if his last name were not Scruggs or if he were not wealthy, there would be howls of indignation from all corners.
I think that there has to be a constitutional right to know what the correct elements of the crime are before you plead. The Fifth should have gotten to actual innocence. But, the practical problem is that the habeas floodgates will open every time the Supremes change the law.
Floyd, I’m amazed how often Scruggs apologists use the term “earwigging” as if it were not accompanied, in this case, by a bribe — and a felonious one at that (those sweet potatoes were not akin to a turkey or Christmas ham, hence the need for tthe euphemism). The whole “mere earwigging” defense trotted out by the Scruggs PR firm was more offensive, almost, to honest lawyers who would never unethically and illegally attempt to unduly influence a Judge, as the quid pro quo that sent all these felons to prison. Sorry, but every time I see a Scruggs apologist use the term “earwigging,” I think this must have come from the Rendon Group. Remember. The Rendon Group?
My Granddaddy told me to never argue with a man who has the Plaintiff’s name in his online handle. I’ve always taken his advice and it has always served me well.
i’ve given a fair amount of thought to CRS’s comment, and have several reactions, some of which would also count as reactions to Floyd’s comment. As I understand it, CRS was suggesting that a naked claim of innocence, with no suggestion of newly discovered evidence or a defect in the process producing the judgment, should be a basis for postconviction relief.
First, my reaction to Zach’s hearing was the same as Judge Biggers, who found that Zach was not actually innocent of conspiracy to commit bribery. I thought the accounts of the November 1st meeting that were most credible established he knew about the money and enough of the circumstances (and participated in a small way in the editing) to be a coconspirator, and certainly to commit misprision. So, to answer Floyd Pink, I’m not howling in part because I think he was guilty.
Second, on much of what I write on this blog, I let myself fall prey to a major problem in lawyerly thinking– I am not quick question the underlying premises of what I know to be the law. I know it to be the law that innocence by itself wouldn’t get him there.
Third, I can fully understand why that is the rule. If a court was required to hear on habeas or postconviction a “naked” claim of innocence– that is, a demand to simply re-litigate the judgment, without a reason it couldn’t have been litigated before, the courts would be buried in pro se postconviction petitions that would be less easy to fend off.
Put this in the context of civil judgments. Should civil litigants be allowed to come back to court and say “I can prove the judgment was wrong”– the sense of the wrong result, not that there was something wrong with the process that produced the judgment that undermines it?
I assume … without going to the trouble of looking it up … that “conspiracy” is still a felony offense defined as “an agreement by two or more people to commit an illegal act, and an overt act in furtherance of the agreement.”
Moe, Larry, and Shemp agree … conspire … to murder a judge by obtaining a supply of Romanian Killer mushrooms, grinding them up, and, under cover of darkness, sprinkling the product all over the judge’s car, and they execute their agreement. In fact, Romanian Mushrooms are wholly inert, harmless spore-bearing fungi—a person might choke to death on one, but otherwise … well, one would have to be pretty stupid to get hurt by a mushroom.
Curley is privy to the conspirator’s plans, but he neither participates in the overt acts—obtaining, grinding, or sprinkling mushrooms—nor does anything to thwart, deter, or report the “offense.”
Moe, Larry, and Shemp plead guilty to conspiracy charges. Forget about them … they’re off the scope.
Curley pleads guilty to misprision of a felony: failing to report the criminal plans and activities. Later, the supreme court rules in an unrelated prosecution that it is not a crime to fail to report a conspiracy to commit murder by mushroom. (It should be a crime to use three infinitives in one sentence, but that’s not part of this post).
Curley’s response: Hey … me too.
Court’s reply: Him … yes. You … no.
There’s a fine line in there somewhere. I still don’t see it. Please develop the line for me.
Here’s the line:
Curley pleads to an information that asserts that he failed to report a felony. The information is concededly sufficient– it refers to the statute violated and not the elements for violation of that statute (e.g. whether the violation was a bribery violation or an honest services violation). However, the factual basis for the plea describes the violation in terms of honest services deprivation.
There’s a US Supreme Court case that says you look at the indictment; if its sufficient, that’s that. It confers jurisdiction. The Eleventh Circuit case that came up at argument says the same thing as I read it.
The Fifth Circuit says that you look at the indictment or information, and, if it states a crime, you don’t go beyond it and don’t have to analyze whether Zach is actually innocent of bribery. Judge Biggers (as any careful district judge would do) answered both questions: First, the information was sufficient, and, second, even if it weren’t, Zach was actually guilty of bribery.
The facts stated in the Fifth Circuit opinion strongly suggests a similar answer had they felt the need to reach that question.
I think this if a very interesting legal issue. But let me state for the record that I saw most of the Zach hearing and I do not think he proved Actual Innocence on the issue of whether he knew about the bribery. I thought Backstrom was weak and he had to be very strong if Zach wasn’t going to take the stand.
Having said that, had the law been what it is today, I don’t think they could have convicted him with what they had. He pled because he clearly knew the Judge was being contacted unethically. He never admitted to knowing about the bribery and from what I remember, even the Judge said that. So it’s unfair to me that they got to basically try him on knowing about the bribery which they never even alleged.
Do I think that he knew about the bribery? I don’t know but if I had to guess, knowing what I know about working in an office and from reading and listening, then I would guess yes. But that’s not what he was charged with knowing about.
I do appreciate your analysis, NMC. I think it’s a fascinating issue.
Floyd wrote:
>>
He never admitted to knowing about the bribery and from what I remember, even the Judge said that
<<
That's what I remember, too.
More about this later.
Tom, Pink, others: thank you for your discussions. I understand how CA5 affirmed Zach’s conviction, and I’ve got my strong feelings about why, … but … but … like Gertrude Stein on Oakland, “there’s no there there.” Not much, anyhow ….
I agree with Ben. This discussion really helped me better understand the legal questions and nuances involved.
What kind of appellate ladder timeline is Dick Scruggs on? What are his grounds? I’ve forgotten how Zach got ahead of him. Is Sid Backstrom appealing his conviction? Where is Joey Langston? Does Ed Peters ever give observations or quotes on any of this to bloggers or the press? What about DeLaughter? Where is he? And Trent Lott? Do bloggers or reporters get quotes from him on things like this? And what’s become of the Rigsby Sisters — don’t they still have a civil case hanging fire? Did they ever get that business with the “sticky note” resolved? Is there some kind of movie being made about them?
Dickie Scruggs filed his pleading after his son. His appeal is in briefing now. Sid Backstrom (surely you know this?) is in Texas and just would prefer to forget about all this, I suspect, a reaction that seems far more intelligent than that demonstrated by his former co-conspirators.
And continuing with your questions I think you know the answers to: Joey Langston is back in Booneville. If you have the kind of… issue..;. he finds interesting, you could probably reach him at the old law office digs. Peters isn’t talking, but word has it isn’t quite as badly off as was implied at the hearing. DeLaughter has moved on, and is living in New Orleans.
I would expect Trent Lott isn’t talking to anyone about all of this.
The Rigsby sisters qui tam case against State Farm lives on, last I checked. They survived another summary judgment attack. I’ve not had the time to go through that docket, which is suffering from sever hypothyroidism.
Thanks for the update, NMC.
Maybe Ace is working on a Scruggs novel–He had Spenser & Hawk’s dialog down quite well, I thought–
I don’t think there’s enough low life stuff in the Scruggs yarn for Ace’s taste.
“CRS was suggesting that a naked claim of innocence, with no suggestion of newly discovered evidence or a defect in the process producing the judgment, should be a basis for postconviction relief.”
This comment and your response NMC illustrate the two fields of thought with regard to habeas – whether it be (1) simply a safeguard on the judicial process or (2) a safeguard for the process and the truly innocent. I am no too sure wher eI fall. The question of habeas’ funciton becomes much more complex for me when considering how the constitutional process-baed safeguards that habeas is supposed to protect have been FUBARed. For example Strickland; a Strickland claim, specifically in our esteemed Circuit, isn’t going anywhere. The depths to which a lawyer’s dishonesty, incompetence, or dumb-assedness has to reach in order for a court (state or federal)to ruly consider an ineffectiveness claim on appeal is appalling. habeas takes it to an even lower level. With the way things stand, an understanding of habeas as a process-oriented backstop premised on the fact that Strickland renders adequate protection from ineffectiveness throughout the state and appellate process is just flat wrong. Some innocent folks are going to slip through. You can extend that thinking to Batson, confrontation clause issues, and on and on. So while I do not think habeas should be another bite at the appellate apple in theory, the innocence safety valve is, in my experience, a necessary tool for heabeas courts in light of the realties of the true constituional porotections – the standards not the rights – the system affords criminal defendants.
disclaimer: I’m not able to edit my post, so please forgive the errors, it’s early and I’m on an iphone. But I hope my point is clear despite the spelling/grammar issues.
What, exactly, was Zach’s evidence of “actual innocence”?