Dickie Scruggs has filed a motion for a judgment on the pleadings. Because it is so miscellaneous, this post will, also, be a bit that way. But it does begin to tie together unexpectedly diverse strands that have come up since I began blogging about the Scruggs cases.
Do folks remember Ashton O’Dwyer? He’s the former lawyer in New Orleans who had several run-ins with the federal courts and bar authorities, leading to his banishment from the District Court building in New Orleans (and ultimately his banishment from comments here). He was also, briefly, nationally famous when his decision to stay home after the ordered evacuation after Katrina lead to his arrest in the temporary prison at the bus depot that is also memorably described in the book Zeitoun.
The lawyers for Dickie Scruggs have filed a motion for a judgment on the pleadings on their effort to set aside his guilty plea in Scruggs II. And they cite O’Dwyer’s recent Fifth Circuit victory in the case where his prosecution for cussing out federal judges was dismissed:
Just a few weeks ago, on September 27, 2011, the Fifth Circuit affirmed a district court’s dismissal of an indictment, in which the Government sought to criminalize speech. U.S. v. O’Dwyer, Slip Op, 2011 WL 4448739 (5th, 2011). There, the Government at least used an unambiguous statute, 18 U.S.C. § 875(c), which criminalizes the interstate communication of certain threats. Dwyer sent an email to the chambers of a federal bankruptcy judge, trying to influence him to grant certain relief, including the following language: “suppose I become ‘homicidal’? Given the recent ‘security breach’ at 500 Poydras Street, a number of scoundrels might be at risk if I DO become homicidal.” Id., at *1. The trial court and the Fifth Circuit held that even this scary language designed to influence a judge was protected by the First Amendment, such that the Government’s indictment must be dismissed. O’Dwyer was granted a judgment on the pleadings.
Notice the creative twist there– “this scary language designed to influence a judge…” It’s not so obvious to me that a contingent threat–“if not for your grey hairs, I would tear your heart out” –is the same as an offer to help someone get a very desirable job.
I am reasonably certain that I learned that contingent threats weren’t actionable (in the context of the law of assault) in the first year of law school. That principle is the basis for the Fifth Circuit decision in O’Dwyer‘s case that Scruggs cites:
A communication rises to the level of an unprotected threat, within the meaning of 18 U.S.C. § 875(c), only if “in its context [it] would have a reasonable tendency to create apprehension that its originator will act according to its tenor.” Morales, 272 F.3d at 288 (internal quotation marks omitted).
We agree with the district court that O’Dwyer’s statement is not a true threat as a matter of law. His statement is hypothetical and conditional: “[S]uppose I become ‘homicidal’ . . . a number of scoundrels might be at risk if I DO become homicidal.” See Watts v. United States, 394 U.S. 705, 708 (1969) (statement not a true threat considering in part its “expressly conditional nature”). Moreover, as the district court correctly observed, O’Dwyer’s e-mail did not threaten bodily harm to any particular individual.
“Designed to influence a judge” is a pretty humorous gloss on this.
The motion also makes reference to the right to depict on video the crushing of small furry animals:
Arguably, the defendant in Stevens should have known that his behavior, involving videotaping the crushing of small animals, was wrongful, but the statute was struck down nonetheless.
(I’ll note here this isn’t exactly right– that the cited case involves dog fighting while the statute that was struck down apparently was designed to prevent video depictions of crushing small furry animals).
At this point, the argument refers to a newspaper article about Georgia case, and cites as an exhibit the indictment in that case (although the indictment is not provided with the motion). There is no opinion to cite, just a pending motion, response, and the newspaper story.
Here’s what occurred: A Georgia state judge named Blitch plead guilty to a scheme where he was being contacted, ex parte, by a political operative who was essentially getting him to fix cases and promising to drum up votes for the judge at election time. Judge Blitch has moved to set that guilty plea aside based on Skilling, and the United States Attorney has agreed he is entitled to set the plea aside.
The indictment contained other charges– that Blitch had a scheme with a local lawyer where the local lawyer would get to be a youth court judge, the local lawyer’s wife get business conducting required marital counseling that was part of divorce cases, and Blitch would get free legal service from the local lawyer, and other benefits. Blitch plead not guilty to those charges, and they were dismissed at the time of the guilty plea about the case fixing with the political operative.
On the theory there was no bribery on the count to which he plead, Blitch moved to set aside his conviction. The U.S. attorney has agreed to this relief in a short response.
If there were an opinion to cite, this would be getting closer but still not quite the same: The count to which Blitch entered a guilty plea did not involve the exchange (attorneys fees for jobs for the lawyer and wife) other than efforts to drum up votes. It is interesting that the U.S. Attorney did not make the argument the Government is making in Zach Scruggs case, that other illegal conduct will save the plea.
The thrust of the new Scruggs motion is about the First Amendment. Scruggs’s pleadings try to make an equivalence between supporting candidates in judicial races and what occurred here: back-channel ex parte contact, communicating to the judge an effort to get him placed on a list for the federal bench. I would expect that, just as First Amendment cases distinguish a contingent threat (“If you weren’t so old, I would punch you now”) and a direct one (“I am going to punch you NOW!”), a court will see the distinction between political activity and the scheme between Peters, DeLaughter, and Scruggs.
Here’s Scruggs motion for a judgment on the pleadings.
Here’s the US v Blitch indictment
Here’s the Blitch motion to set aside the plea.
Here’s the Blitch government response.
So by the reply memo, we should be up to how the First Amendment makes bribery, blackmail, libel, and bank robbery all constitutionally protected. When I hand the teller a note saying “GIVE ME $10,000.00,” I’m just exercising my freedom of speech.
(Cue Woody Allen bank-robbery-note scene. Maybe Woody will return to the screen to play Dickie Scruggs.)
“I have a gub.”
The “Scruggs Saga” is becoming like something from an E.L. Doctorow novel ….
Not on Theme:
http://travel.nytimes.com/2011/10/16/travel/faulkner-and-football-in-oxford-miss.html?scp=1&sq=Oxford,%20MS&st=cse
Removal will not disturbe me.
Why in God’s name would Willie Morris call a coed a “cyprinid”?
For the same reason he thought it was fancy to use the word “beauteous.”
I was at the VA recently trying to get something done when I described the situation to someone over the phone as a “clusterfuck”. A guard threatened to give me a ticket. I asked whether he had ever heard of the First Amendment. He replied, “this is private property”.
I was like, what the fuck, 1) the First Amendment does not apply on federal property? and 2) don’t people at the VA hear the word “clusterfuck” a billion times per day?
“Beauteous” I can spot him. Comparing young women to “stomachless fish” however …
… Presumably he had goldfish in mind, but if he’d called them “goldfish,” then his condescension would’ve been obvious.
… Jane, let’s print up some copies of Cohen v. California, visit various public buildings, and exchange casual obscenities until we’re accosted by The Law, upon which we can hand them a copy of Cohen and wish them a happy fucking day.
(Can a security guard at the VA plead qualified immunity if you’ve just handed him the relevant Supreme Court precedent? I’m getting pretty excited about this, I must say.)
Sure, I’ll play.
I just can’t understand adults getting so worked up over a curse word or two. I wasn’t even talking to the guy. My Mom and I went to the see the new George Clooney movie yesterday and, seriously, it was so comforting to listen to conversations with adults freely using the word “fuck.” It’s lonely being an atheist who curses in this state.
Jane’s new blog title: The Cursing Atheist.
Not to be confused with the New Yorker’s “Cursing Mommy,” which I am sophomoric enough to find hilarious.
That’s pretty funny. Did you ever read this one?
http://www.newyorker.com/humor/2009/01/26/090126sh_shouts_baumbach
I don’t think alcohol *extends* life so much as just makes the given lifespan more enjoyable.
Alcohol makes me feel bad but I might indulge more if I had a talking mouse for a drinking companion.
Well, I learn something all the time from this blog.
For instance, I knew that carp and goldfish were closely related, but had no idea they lacked stomachs.
Jane, that’s the problem, the mice don’t start talking until you’ve on the fifth or sixth glass.
… Wikipedia, NMC. It’s an education. There was a book 20+ years ago about a girl who, instead of college, educated herself via the Durants’ Story of Civilization, following up pointers to other texts. Some autodidact will get a memoir out of deciding to self-educate on Wikipedia.
Jane,
This may not ease your loneliness, but maybe it will make you feel better. I am not an atheist, but hearing you throw around fuck excites me.
Anderson, try the blog rantsfrommommyland.com It’s Whuck-tastic!
I have the entire “Story of Civilization) (well, almost) but can’t say I’ve read it all. I made my Mom join the Literary Guild and get me the set for Xmas one year at a really cheap price. But some Christian borrowed the volume containing the beginning of Christianity and, of course, never returned it.
Got an “under construction” page on that, DLM. But the name reminds me of a favorite blog my wife reads, Stark Raving Mad Mommy.
… Your Christian friend cannot have been very happy with the Caesar and Christ volume, Jane. Maybe she was protecting you from it.
@Anderson, RFML works for me, maybe you didn’t copy paste whole address? I read SRMM too as well as her friend Donkeys To College, both of their sites should have an RFML link. These are the women help keep me sane, since play dates with other Mama-Lawyers are rare indeed.
While my VA experiences have been mostly positive, I’m a little mystified that anyone labors under the illusion that it’s private property. If it were, one would likely encounter fewer clusterfucks.
“CIVILIZATION begins with distillation,” William Faulkner wrote, As stated in link above
In the end, Scruggs will be vindicated, Lackey will be convicted, and Delaughter will be appointed to replace him. At that point the system will have returned to equilibrium and all will be right with the world. I guess Eaton would be cheering loudly for team Scruggs in this fiasco.
Posit this…if Scruggs is correct, then would a threat to harm the president be protected free speech also?
Re: civilization begins w/ distillation. In all seriousness there is the theory that when the Sumerians first settled in the valley between the Tigris and the Euphrates and began growing crops (which is supposedly the beginning of said civilization), the grain they grew was for brewing beer and they invented bread not as food but as a vehicle for storing said grain for brewing. Those known to espouse this theory are known as Beer Firsters.
A fine hefeweizen for breakfast should go great w/ this mornings history lesson.
I argued a criminal affidavit did not state a crime of “profanity in public” for saying “I’m gonnna whip your ass”, as “ass” was not profanity. The prosecutor of course opposed. During the course of the argument I told the Judge “I hope I whip his ass in the case” now arrest me. (prosecutor was a friend so he knew I was kidding + he was bigger than me). I won my Motion!!