“The silence of the Information” and “ethically nefarious acts”: Notes on Dickie Scruggs’s Fifth Circuit appeal, Part 1

The eight paragraphs of the Information speak for themselves. So does the silence of the Information.

…

Concededly, the Superseding Information recites ethically nefarious acts.

-US v. Scruggs, Fifth Circuit reply brief of the Appellant

There’s no particular significance to the quoted first quoted passage, except that the strange poetics of the sentence, “So does the silence of the Information” brought me up short, as did the phrase “ethically nefarious acts.”

While quoting the reply brief, here’s some more from the Scruggs side that suggests a certain lack of perspective in working up arguments for a case where the defendant concedes grossly unethical ex parte contact to influence a judge:

This Court should resist the temptation to do the Government’s work for them, in order to conjure up its own arguments for disposing of this issue, denying itself of the value of the adversarial process and denying Appellant the chance to address and rebut such arguments. As the Supreme Court has said, the adversarial “system is premised on the well-tested principle that truth—as well as fairness—is ‘best discovered by powerful statements on both sides of the question.’” Penson v. Ohio, 488 U.S. 75, 84 (1988).

(emphasis supplied)

I’m absolutely sure that Roberts Wilson’s side of the case Wilson v. Scruggs would have agreed with the idea of hearing both sides as an alternative to “ethically nefarious” ex parte contacts with the judge.

Yes, i’s time for a Scruggs dump, from Dickie Scruggs’s Fifth Circuit appeal of his conviction for bribing Judge DeLaughter.  The oral argument was Monday in the West Courtroom at the Fifth Circuit in New Orleans.   You can hear the argument, about which I’ll write more below, through this link:

I’ll write more later; for now I’ll note that, at least in my experience, this was a pretty cold panel (that is, did not ask a lot of questions).  The panel was Chief Judge Carl Stewart and Judges Jerry Smith and Jacques Wiener, Jr.  All of the questions were during Edward Robinson’s opening argument for Scruggs, most from Judge Smith; there were no questions at all for the Government, and none during Robinson’s closing.

Here is Scruggs’s Brief of Appellant.  Here’s the Government’s Brief of Appellee.  Here’s Scruggs’s Reply Brief of Appellant.

Question for brief writers:  Does a Summary of the Argument that pushes past the five-page mark to describe three issues (that overlap) seem overlong?  I was raised to think two pages was a long summary.

To complete the document dump:  The parties have filed a whole lof of 28(j) letters(which are used to tell the court about cases decided after the briefs were filed that might have some relevance). I’m posting them here and leave anyone to make what they will of them

I’ll write more about the briefs and the oral argument in a couple of later posts.

This is the first of three posts about Dickie Scruggs’s Fifth Circuit appeal of the denial of relief from his guilty plea to bribery of Judge DeLaughter.  Part two is here.