Patsy Brumfield, who has apparently seen a pleading not yet visible on Pacer, reports that Zach Scruggs is about to file to set aside his guilty plea, taking a potshot a his first laywer, Tony Farese, and arguing that legal developments– presumably the Minor case in the Fifth Circuit (which held that there had to be a nexus between federal funds and bribery for a federal court prosecution) and the Skilling case in the U.S. Supreme Court (which held that “honest servies” prosecutions that do not involve straight-up bribery don’t pass constitutional muster).
I’d heard for over a week something was up, and today Kingfish at Jackson Jambalaya told me that his lawyer sources had seen a notification off EFS that something had been filed.
For those who haven’t followed this closely or from the beginning: Zach Scruggs was indicted with his father, Sid Backstrom, Steve Patterson, and Tim Balducci for an effort to bribe Judge Henry Lackey in the case Jones v. Scruggs. Balducci, who did the heavy lifting in the bribe attempt, is nearing the end of a sentence on his guilty plea, as is Patterson, and Zach Scruggs and Backstrom are out.
Zach Scruggs was initially represented by Tony Farese, who shortly thereafter showed up representing Joey Langston (who had been Zach’s dad’s local counsel). The day before Langston entered a (closed court) guilty plea about yet another case involving Dickie Scruggs, Farese had Zach sign a waiver so Farese could continue to represent Langston.
Lots of eyebrows were raised about that waiver. But in any event, Zach got new counsel, and after a lot of fencing back and forth, entered a guilty plea to misprision of a felony– that he knew of a felony going on and did something that helped actively conceal it.
I can understand arguments that the Minor case may have an impact, because there is no clear nexus between what Judge Lackey was being asked to decide and federal funds. On the other hand, I can’t imagine how the issue about Tony Farese has any impact, because Zach Scruggs clearly had separate independent counsel long before entering the plea. And Skilling provides no comfort in a case involving a straight-up bribe.
But then there’s this: Judge Biggers will be deciding this issue. And apparently, Zach Scruggs’s counsel will be some of the same folks present at his guilty plea. I’m not sure I’d want to appear before that particular judge saying “My client is innocent!” after doing a guilty plea for that client. And one also wonders whether reopening this will work out– if the plea is set aside, I’d assume we’ll see a really scary superseading indictment. But I’m guessing we won’t be going there…
Here’s what Brumfield reported:
Zach Scruggs says new evidence and legal developments show he’s innocent of federal charges that sent him to prison in a judicial bribery scandal that rocked Mississippi’s legal world.
Scruggs, 36, of Oxford today filed a request the U.S. District Court to give him a hearing to prove his innocence and to throw out his 2008 conviction. He said a recent U.S. Supreme Court decision wipes away the crime to which he insists he had no choice but to plead guilty.
In March 2008, Scruggs pleaded guilty to not reporting that he knew about a crime, which was an illegal conversation with the judge in a legal-fees lawsuit over Hurricane Katrina insurance cases. The government said the chat led to a scheme to deprive the public of Circuit Judge Henry Lackey’s “honest services.”
Recently, the U.S. Supreme Court narrowed the honest services law to pertain only to bribery and kickbacks, which Scruggs and others say is not what he pleaded guilty to.
In the new court filing, which will be posted electronically Thursday, he also accuses:
- Tony Farese, prominent Ashland lawyer, of secretly negotiating a plea bargain with prosecutors for then-Booneville plaintiffs attorney Joey Langston’s cooperation against Zach and his father, Richard Scruggs, while Farese was Zach’s attorney in late 2007.
- The U.S. government and the FBI of creating the judicial bribery scheme, which led to indictments against him, his father, a law partner and two others Nov. 28, 2007. And prosecutors, who allegedly lied to the court that Zach Scruggs was part of another judicial bribery accusation involving Judge Bobby DeLaughter of Hinds County.
- Judge Henry Lackey of Calhoun City of allowing himself to be used by the government for months to set up the attempted bribery, rather than deciding whether the lawsuit against Scruggs and others should go to arbitration or let another judge decide.
Zach Scruggs “committed no federal crime,” the motion states. “Indeed, as will be explained, he is actually innocent of all charges.”
Senior U.S. District Judge Neal B. Biggers Jr., who presided over the case called Scruggs 1, will decide the merits of the new request.
Farese strongly denied the allegations against him and expressed concerns that they are public while the focus of a confidential complaint to the Mississippi Bar Association.
“I deny the allegations made against me by Zach Scuggs in the bar complaint,” Farese wrote in a statement to the Daily Journal. “Zach Scruggs is a young man who had everything, but is now a convicted felon who cannot accept responsibility for his own criminal conduct. He has nothing but time and money to try to blame others for his unethical and illegal acts.”
Farese also insists he acted ethically “at all times” as attorney for Zach Scruggs and Langston.
How could any of this merit setting aside Zach’s plea?
Here’s what I’d argue if I were Zach:
1) For my crime to be misprision, I have to have not reported a felony. So if the crime in Scruggs I wasn’t a felony, I didn’t commit the crime.
2) The felony, apparently, was 18 USC 666 bribery, because that’s what the related guilty pleas were about.
3) 18 USC 666 bribery has a jurisdictional element (so says the Fifth Circuit in the Minor case) that there be a nexus– a connection– between the decision on which the judge was allegedly bribed and the use of federal funds.
4) There’s no nexus between decisions about federal funds and the decision Judge Lackey had to make about sending Jones to arbitration. Therefore, no federal jurisdiction. No federal crime.
I called the allegations about Tony Farese a potshot not because there aren’t questions in my mind about all that but because I don’t see how they provide a basis to set aside the plea.
So what’s the other side? I’m assuming that the Government will say there are other crimes involved in a judicial bribe (e.g. wire fraud. These guys were on the phone like crazy, and sent a fax or two). Neither the Minor case nor Skilling help with that. And then I’d have to wonder if the Government can seriously threat to broaden the threat to Zach (e.g. remember that email about a brief on a napkin in the Wilson case?) if he gets the plea set aside.
Enough is Enough I’ve listened to this for too long and now Zach is going to start rehashing the whole sordid and “dishonest” mess all over again.
Next thing you know, the whole rotten bunch of them will try to say that they were innocent, that nothing happened.
So is the general rule that if I plead guilty to a crime, and later it’s proved that no crime occurred — I say I stole something and plead on that basis, but it turns out it was free or a gift or whatever — that’s a basis to set aside my guilty plea?
That may be the law, but I don’t buy it. Even if it reminds me of a Nietzsche line (from memory):
“In the witch-trials, everyone believed in the guilt of the accused — even, in many cases, the accused themselves. And yet, there were no witches! — That is how it is with all guilt.”
You cannot set aside a guilty plea on the basis that the statute is later found to be unconstitutional. Brady v. U.S., 397 US 742 (1970).
Simple way to shut up Zach. Stick Daddy in a rougher prison, you know, like Sirica did to Liddy.
Stick Dick where he can get dicked a few times and Zachie might see the error of his ways.
If I were running for State AG agains Hood I’d make state prosecution of the whole crew a cornerstone of my campaign and expect to win.
The more noise they make and the longer this case stays in the public consciousness the more likely it is that someone will decide to do so.
To steal a phrase I think Zach is being “criminally ill advised;” of course good judgment has not been a hallmark of Scruggs’ litigation strategy for the last few years. I propose we start using the word “Scruggsian” to refer to
strategies likely to result in victories not just Pyrrhic with regard to oneself, but one’s friends and family as well.
Before I’m taken to task by the better educated for the ignoramus that I am I just googled pyhrric. It already refers to destruction of friends and family and impending catastrophe in the event of victory. So, let’s just use Scruggsian as a synonym in the context of litigation.
KF: Simple way to shut up Zach. Stick Daddy in a rougher prison, you know, like Sirica did to Liddy.
Stick Dick where he can get dicked a few times and Zachie might see the error of his ways.
Are you just blowing off steam, or do you seriously suggest such action?
Either way, Lady Justice winces.
It already refers to destruction of friends and family
Not really. The origin is Pyrrhus’s battles against the early Roman republic; at the second, I believe, he won a hard fight, and commented after, “another such victory as this, and we are undone,” except in Greek, y’know.
So a Pyrrhic victory is simply one that amounts to a defeat on some level. Tet 1968 comes to mind.
Ben:
Daddy has a right to a country club prison? You mean Liddy shouldn’t have been stuck in the DC jail?
Maybe they should stick Dickie alongside Charles Evans.
Not to violate Godwin’s Law, but Kingfish’s comment is Gestapo-esque and reflects a KGB way of thinking. It’s revolting. Sad thing is, it has happened in US justice systems, it is probably happening now in US justice systems, and it will happen in the future in US justice systems. It makes me want to puke.
Balducci danced with Judge Lackey for six months (between March to late September 2007) before ANYBODY mentioned money – and when money was finally mentioned, it was Judge Lackey specifically asking Balducci (who thought he was a close friend of Judge Lackey) for cash at the instruction of the FBI. Had the FBI not baited the hook in this way, Balducci never would have made the pay off. Yeah, Balducci took the bait, but IMO the whole thing still stinks.
As I read NMC’s comments, and the “facts” reported by Brumfield, Zach’s motion is well-played and has merit. Balducci can blow Zach out of the water by rolling in and testifying that Zach had direct knowledge of the pay off, but if Balducci can’t or won’t say that, what evidence is there that Zach was guilty of misprison of a felony? And if Zach was NEVER implicated in Scruggs II, what else is there to indict and charge him with?
BTW, who the hell thinks Matt Hall has any credentials other than a law degree to be an authority on “honest services” fraud cases?
Note to Bobby DeLaughter: if you had told the FBI “thanks but no thanks” to the interview request, you probably wouldn’t be in jail right now.
I agree with Observer that Kingfish’s comment is revolting (although I’m not fully clear on comparing it to the KGB and the Gestapo. I was thinking more in terms of yahoo-esque).
I’m thinking the legal argument Zach is raising will play out interestingly. I think the “prosecutor mislead the court” and ineffectiveness arguments don’t have a snow-balls chance. Finally, when I say “interestingly” I mean that it may not be dismissed out of hand.
But that’s a different question from asking whether this filing was a wise thing to do….
Yah, nobody should ever think they’re smart enough to chat with the FBI. Because they’re not there to chat.
… Adopt Observer’s comments on KF’s endorsement of prison rape.
Question: if you’re disbarred due to conviction of a felony, and then you’re pardoned, can you reapply to the Bar? (With any chance of success, of course.)
Yeah. See Shelton case.
As for my comments, sorry, I hope George Bell gets raped repeatedly while in prison. From what I’ve heard, that has already happened at least once.
All I’m saying is if the Scruggs’s are going to start engaging in these tactics, then why should the government let the old man sit in a country club when there are real prisons available. Like the one Charles Evans is in up around Gluckstadt right now.
If the Court vacates the misprision conviction, shouldn’t the Court, in the interest of justice, also toll the relevant statutes that would allow the USA to prosecute the felony charges that were dropped in return for Zach’s plea?
Keep in mind the state or a D.A. can still go after him too.
Why didn’t (doesn’t?) Hood prosecute Zach for bribery? Or, why doesn’t the local DA prosecute Zach for bribery?
I understand that Lackey went to the feds. But, it seems that local officials have more than enough evidence that a crime has occurred, and should pursue a criminal prosecution of all of the accused.
Why didn’t (doesn’t?) Hood prosecute Zach for bribery?
Cuz dey is like him FAMILY, cher!
Anderson, good luck with with Zach’s reinstatement to the Bar. My understanding that the Mississippi Bar and the Mississippi Supreme Court will look at the same “bad acts” that got him indicted in the first place when considering whether or not, and if so under what circumstances, he might be reinstated. Based on what has been published, my SWAG is that that won’t happen. But, these are strange times we live in.
With regard to Observer’s post if memory served Balducci started out offering to make Judge Lackey of counsel in his firm. Assuming such a position had value at the time wouldn’t that have also been a bribe?
Anderson and I agree on something. Duly noted. August 19, 2010 @ 1:09 pm.
So, I am not a lawyer but, if I, under oath, enter a plea and then later claim that was not true did I lie under oath and then am I guilty of perjury?
I don’t get this.
Had to happen sometime, WTBAL.
… Bayrat, I think you’re right, and I don’t care to see Zach reinstated.
My point I guess goes to the automatic disbarment, which I think is a mistake. Because there’s no exercise of judgment, it then becomes necessary to exercise same in the event of a pardon or, as here, a withdrawn guilty plea (and subsequent acquittal).
The net result is that you’re kept disbarred on different grounds than led to your disbarment in the 1st place. I find that a tad dicey.
But Zach presumably has so much $$$, he doesn’t need to work another day in his life. I don’t see the point, frankly.
A Lurker, I think what he’s going to try to argue is that what he admitted to doing is not a federal crime. I don’t think any of his arguments will amount to anything except that legal argument, which is not frivolous (which is not to say I think it’s a winner…)
I don’t mean to sound like a bleeding heart, but to those of you who think our barbaric prison system and prison rape is funny, well I fell sorry for you. If a prostitute is raped, the police work overtime to find the rapist, but if a prisoner, who society has a duty to protect is raped, and society does nothing. Why do we tolerate this and even encourage it? It’s sick and the sign of a sick society.
Sorry, just my view.
I share Rebelyell’s view.
See this from Radley Balko, who apparently has video:
An undercover New York City cop threatens a man taking cell phone video with arrest for being disrespectful. He then explains that an arrest means a weekend in jail, where he’ll probably be raped.
Abu Ghraib becomes less difficult to understand when we remember that sexual torture is a feature, not a bug, of American law enforcement.
When it comes to certain inmates who beat a victim to death with a flashlight and then raped the victim anally with a flashlight, I will respectfully disagree with you.
Well, KF, I wouldn’t want to be that victim, but that would be the less bad sequence.
KF: I lived in Washington DC during the fiasco that was the Nixon presidency, and I remember Liddy’s being confined in the DC jail … which was just another big city jail, no better, no worse–plenty good enough for a penny-ante nut job wannabe “operator” such as Liddy. But just to refresh my recollections of Nixon and the stupid toadies who surrounded him, I googled for G. Gordon Liddy and read several articles and interviews. They all confirmed my thoughts and beliefs held now for nearly 40 years. One interview in particular does a good job of stating the sum and substance of Liddy and his ilk, of which it appears you are one. I commend it for your erudition:
http://www.johannhari.com/2005/11/22/g-gordon-liddy-an-interview
There was a time when I thought you had something to say. That time is over and done. Don’t let the door hitcha where the Lord splitcha ….
I can see that more of you are coming around to my view that kingfish is a butthole, even if my use of the word “butthole” makes me immature.
plexix, your use of the word “butthole” is appropriate because kingfish is immature. You’d think he was still sucking on his mama’s tit, but in reality he is sucking off of his daddy’s reputation and money and cannot and will not ever do anything worthwhile but be a bully in the playground.
For a second there I thought that when NMC lost all the old posts, all the old bonhomie I came to love was gone, too. Glad to see that’s not the case. Cheers!
Those who cannot open links to the past are condemned to repeat it.
Here you go:
Link to the Past
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