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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How Judge Davidson gave Dickie Scruggs fair warning he wasn’t going to win

I noted in my last post about Judge Davidson’s rulings that Judge Davidson’s just released opinion essentially told Dickie Scruggs that he was going to get a hearing but he wasn’t going to win.  My heading here describes that as “fair warning.”

How, you might ask, is it fair if there hasn’t been a hearing yet?  I’ll explain.

First, as Judge Davidson notes, Scruggs has the burden to prove actual innocence to set aside his guilty plea (he can’t prove “cause” for not acting earlier because the Skilling result was predictable, as Judge Biggers had already ruled.  There are two arguments to set aside a plea based on Skilling, which is what Scruggs is attempting:  Either that there is a good reason he didn’t raise the legal issue in Skilling, which he can’t show because the argument recognized in Skilling was being raised before that decision, or that he is actually, factually innocent).

Second, Judge Davidson analyzes the evidence about whether Scruggs is innocent.  This analysis begins by noting that there need not be an explicit agreement for there to be a quid pro quo.  That has been the law for eons.  Next, Judge Davidson notes that the quid need not be cash– it can be anything of value (“”The term ‘anything of value’ … is broad in scope and contains no language restricting its application to transactions involving money, goods, or services.” The term “includes transactions involving intangible items.” “This broad interpretation is based upon a recognition that monetary worth is not the sole measure of value.” cites omitted).  Judge Davidson then turns to the actual facts:

Petitioner has admitted that he contacted his brother-in-law, then a United States Senator from Mississippi, to recommend DeLaughter for consideration for a vacant federal district judgeship. The Senator has testified that Petitioner asked him to call DeLaughter. DeLaughter received the Senator’s call and knew that Petitioner had recommended him for the federal judgeship. All of this occurred while the Wilson case against Petitioner was pending before DeLaughter and proceeding to a final resolution. Petitioner has admitted that the Wilson case was ultimately resolved in a way favorable to him. Petitioner argues that recommending DeLaughter to the Senator and having the Senator contact DeLaughter regarding consideration for a judgeship are not “things of value.” Petitioner contends that “[a]ny supposed benefit conferred by Petitioner, a private citizen endorsing a circuit court judge for consideration for a position on the federal bench, is so remote and theoretical as to prove illusory. Petitioner was just a well-connected private citizen, with no power or discretion to appoint Bobby DeLaughter.” Pet’r’s Mem. in Support of Mot. to Vacate [126] at 24. Petitioner’s argument for a narrow construction o f the term “anything o f value” finds no support in case law.

Judge Davidson then notes how broadly the notion of “anything of value” has been interpreted.

I’ll note here something I’ve said since the facts in this case emerged:  It is going to be really hard to convince a federal judge that consideration by a Senator for a position as a federal judge is not of value.  Judge Davidson continues:

Petitioner argues that “[a]t most, the Government only gestures towards the idea that there may have been an implicit quid pro quo in this case” and “provides no evidence in support of such an implicit agreement.” Id. at 3. Petitioner contends that “[t]he Government’s wishful idea of a quid pro quo is based on nothing more firm than its own speculation.” Id. The exhibits submitted by the Government in this case, and the Court’s own records, however, provide more than speculation and a “wishful idea of quid pro quo.” The Court has reviewed the exhibits submitted by the Government, consisting of the following: the October 23, 2008, grand jury testimony of Joseph C. Langston; the October 21,2008, grand jury testimony of Ed Peters and exhibits thereto; the October 2, 2008 deposition of Senator Trent Lott in In re: Inquiry Concerning a Judge, Case No. 2008-022, Mississippi Commission of Judicial Performance; the June 10, 2009, deposition of Timothy R. Balducci in Eaton Corporation, et at v. Jeffrey D. Frisby, et ai., Cause No. 251-04-642 CIV, Circuit Court of Hinds County, Mississippi, and exhibits thereto; the June 18, 2009, deposition of Steve Patterson in Eaton Corporation, et ai. v. Jeffrey D. Frisby, et ai., Cause No. 251-04-642 CIV, Circuit Court of Hinds County, Mississippi; and a letter dated March 30, 2006, from Judge Bobby DeLaughter to Senator Trent Lott. The Court has also reviewed the court file in Cause No.1 :08CR003, styled United States of America v. Joseph C. Langston, in the United States District Court for the Northern District of Mississippi, which the Court has ordered incorporated into the record of the case sub judice, pursuant to its authority under Rule 7(a) of the Rules Governing Section 2255 Proceedings. The numerous exhibits submitted by the Government and the court’s file in Cause No. 1:08CR003 create a genuine issue as to whether Petitioner aided and abetted in a bribery scheme.

That language:  “create a genuine issues as to whether Petitioner aided and abetted in a bribery scheme” is pretty much fatal given the standard quoted in the opening of the opinion:  The petitioner has to show that the Government did not have the facts to justify any reasonable juror to concluded Scruggs was guilty, and mere insufficiency of the evidence won’t establish that.*

Having said all that, and pretty well finished off the petition, Judge Davidson explains why he is granting an evidentiary hearing:

Rule 7 of the Rules Governing Section 2255 Proceedings states that the Court must give the party against whom additional materials are offered an opportunity to admit or deny their correctness. The Court finds that the best way to test the evidence and the credibility of the witnesses is through an evidentiary hearing.

As I read this, Judge Davidson is ruling:  I have ordered that the Langston plea be part of this proceeding, and the petitioner should get a chance to respond that.  We will have a hearing to allow that to occur.

Here’s Judge Davidson’s opinion.


*I’m going to note that, while this is the standard as expressed in the leading Supreme Court case, I am having trouble discerning the boundary between “a reasonable juror could find” and “insufficiency of the evidence,” mere or otherwise.  I don’t think this logical problem will provide any argument for the petitioner…

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