I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

Missing Posts: If you have a link to a post that's not here or are looking for posts from Summer of 2010, check this page.


Judge Biggers to Sid Backstrom: Don’t ask for any favors if you haven’t been straight with me

This is apparently the week for the district judges in the Northern District of Mississippi to remind folks that the defendants in the Scruggs case haven’t exactly been honest with those courts.  First, Judge Davidson made clear he thought Joey Langston had lied in denying a bribe in the Scruggs II hearing.  Second, Judge […]

Scruggs to Judge Davidson: Decide my petition, because I could be getting out soon.

Dickie Scruggs has filed a motion in Scruggs II asking the court to go ahead and decide the case.  Writing with uncharacteristic brevity, his lawyers note that his release date on the five year sentence in Scruggs I would be in November of this year and that he’d be eligible for half-way house or […]

Judge Biggers’s memorandum opinion explains his ruling against Zach Scruggs

Judge Biggers’s memorandum opinion (like Gaul) is divided into three parts:  Skilling and actual innocence; ineffective assistance; and the claim of prosecutorial misconduct.

The actual innocence discussion represents the best factual summary of the events bribery scheme in Scruggs I that I’ve seen, with some additional information– that the phone calls Balducci said he’d made (and that Backstrom denied had occurred) are corroborated by phone records, that show Balducci did call the office at those times.   Obviously, there’s more to the known facts than Judge Biggers states, but he lays the ones he needs out pretty clearly.

For the ineffective assistance claim, he does a variation on the dog bite defense:  He rules Zach didn’t file it on time, there wasn’t a conflict (because any notion that Langston might be a hostile witness arose later), and there was no cause or prejudice from any asserted conflict.  Any one of those rulings causes his claim to fail.

The ruling on prosecutorial misconduct similarly rests on multiple foundations, with the central point that there was essentially no dispute that Zach Scruggs’s defense team had been informed of the actual fact– that Langston was not a witness against Zach Scruggs– before the plea.  He does make clear that he viewed what the prosecutor did as no more than negligence.

I’ll post some highlights in this and a couple of follow-ups.  Meanwhile, here’s the opinion.

Actual Innocence

The judge frames the actual innocence position of the parties.  Zach Scruggs argues he knew nothing of a bribe.  The Government responded by arguing that they could have used an alternative theory of wire fraud. The problem with that, Judge Biggers recognizes, is that the Government didn’t really spell out in its factual basis what crime Zach Scruggs was failing to disclose:

It is not evident from reviewing the factual basis and information supporting Petitioner’s plea that the Government intended to charge Petitioner for misprision of a conspiracy to commit wire fraud on a money/property theory. This issue would be simplified if the Government had set out in its factual basis or information what felony Petitioner had misprisioned, but the factual basis and information state only that Petitioner committed misprision of a felony without referencing the underlying felony.

Judge Biggers then declined to decide the Governments fraud claim:

The court, however, declines to reach the merits of  the Government’s money/property theory of the case, although it is arguably viable, finding that it is not necessary to determine this issue in order to resolve the case.

Why not? Because a jury could have concluded that Zach Scruggs knew about the bribery scheme.

Continue reading Judge Biggers’s memorandum opinion explains his ruling against Zach Scruggs

The Goverment replies on its Motion to Dismiss Zach Scruggs’s petition

Late Friday, the Government filed their reply brief on their motion to dismiss Zach Scruggs’s habeas petition.  The first half spends far too much time trying to argue that Zach’s effort to prove innocence failed because he did not disprove the existence of a conspiracy to defraud Johnny Jones, using it to argue that, […]

Judge Biggers rules Zach Scruggs will get to hear the witnesses in court, denies discovery motions

Here are the key parts of the order: Shortly before petitioner was to stand trial, he announced to the court through hisattorneys that he was satisfied with the discovery received from the government and was ready to defend against all charges in the Indictment.  The petitioner now contends that additional discovery is warranted in […]

Zach Scruggs responds on the depositions

There are three responses.   The most interesting on doesn’t relate to discovery (directly, anyhow); after several rounds in which the discussion is right-at-the-edge of being about the merits, Scruggs’s lawyer decides, “Ok, the Government is repeatedly making legal assumptions about this case to try to limit, and we are going to use this […]

Government responds to Zach Scruggs request for deposition (part 2)

In a prior post, I focused on issues in the Government response to the Zach Scruggs motion for depositions.  This post focuses on issues about Zach Scruggs’s complaints about asserted conflicts in his original trial counsel.

A lot of information is included in the Government response, all from either affidavits from Tony Farese’s response […]

Government responds to Zach Scruggs request for deposition (Part 1)

The gist of the Government response to Zach Scruggs’s motion for depositions is that he has to show a reason for taking a deposition by making a profer of the facts the witness may know, and that for different reasons Zach’s proffer isn’t enough.  The response makes a few points about the issue of whether Zach […]

Zach Scruggs’s lawyer: Those polygraph results weren’t supposed to be public. And some anonymous source says they were “inconclusive.”

The US Attorney’s latest brief describes polygraph results from Zach Scruggs and Sid Backstrom that are… not favorable to Zach Scruggs’s claims of innocence.   Patsy Brumfield has a reaction from Zach Scruggs’s lawyers

Zach’s attorney, Chip Robertson, said after the response was posted that he was disappointed the feds had told that, since everyone […]

Government asserts: Sid Backstrom & Zach Scruggs failed FBI Polygraphs

This is in the Government’s response to Zach Scruggs’s motion to set aside his plea:

Sid Backstrom attempted to corrobate the petitioner’s denials, but failed an FBI polygraph.  David Zachary Scruggs also failed an FBI polygraph showing deception when he said he knew nothing about money changing hands.

In a footnote the motion notes […]