The Government has filed a long post-hearing motion to dismiss, taking Zach Scruggs’s petition point-by-point to argue that he’s not proved his case.
This is the first time they’ve fully fleshed out some of their legal arguments. They close with a section noting there was no proof of ineffective assistance involving Tony Farese, causing me to think, “Wait a minute, did Zach’s lawyers even nod toward that claim in the hearing?” That claim seems to have just gone away. I’ve always thought it was virtually impossible to maintain because, first, it was never suggested what exactly might have been done that was ineffective in the month of December (the dual representation by itself doesn’t show Zach Scruggs was harmed by it…), and, regardless of what happened for the month of December, Zach Scruggs was represented by multiple lawyers of his own choosing for months afterwards, well prior to the pleas and even the motions hearings.
I’m still where I’d been, that the two most serious claims were the contention Zach Scruggs plead after being mislead about Joey Langston’s testimony and the “actual innocence” claim. The first fails on the uncontradicted proof from Magistrate Judge David Sanders that he had fully informed the defense team about what Joey Langston would actually say. I’m going to post this weekend (I hope) about the actual proof about the second claim (and about some other interesting tidbits from the trial). I think the innocence claim also fails, particularly given the standard: That Zach must show no reasonable juror could have convicted him
Here’s the Government motion.