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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What Langston, Balducci, and Patterson said about whether there was a quid pro quo between Scruggs and DeLaughter

For a bribery conviction, there has to be a quid pro quo, an exchange of a thing for a thing (note that “things” can be intangible).  The “quo” part is really easy here, although Scruggs’s side is pretending otherwise:  Scruggs’s side got inside access to the judge, the ability to make arguments to the […]

Scruggs II trial: Balducci testimony

Tim Balducci was the Government’s only witness yesterday.  His testimony was pretty consistent to what he’s said before, although more than once he noted that he’s tried to put this behind him and not think about it, and that there are things he’s forgotten.

Balducci was a strong and believable witness.  The one part of his narrative (which has been there since the first time he testified) that has always sounded to pat to me is the story about the flaw in their response to the quantification motion.  He notes that they filed a response that had no backup documentation (affidavits or the like) and then got a ruling that accepted the facts that had no back-up.  He described this as a “fatal flaw” forcing them to go to settle the case to avoid an appeal.  That last bit seems overdramatized to me, although I could see Scruggs’s side worrying they might have overplayed their hand when they got such a sweeping ruling (zeroing out the Wilson claims) from DeLaughter.  Sometimes the effort to rehearse testimony to prepare for trial leads a witness to smooth over bumps in a way that makes it have too much narrative neatness– become too pat.  But other than that, he made a good witness for the Government.

Tim Balducci

Direct

Lives in Monroe County, Mississippi.

Describes his educational background: Graduated law school in 1991, practiced with Langston briefly.  Moved to Oxford and opened a firm with a partner.  Went through different entities until came back to work with Langston.

Remembers calling Bob Norman a few days after the confrontation by the FBI and asked to meet that morning, a Saturday.  He had been debriefed a couple of days before.  They had asked in passing if he was ever involved in anything like that before, and Balducci said no.  He decided he had to come clean and say that there was another case.   He told Norman about the DeLaughter case.  The federal authorities did not know about it.

The Luckey case was in federal court and the Wilson case in federal court in Hinds County.  In 2005, the Langston firm took over the lead in the Wilson case.  Balducci was doing the day to day work on the Wilson case thereafter.  Patterson and Balducci during this time were both employees of the Langston law firm.

Balducci flew to Jackson with Patterson and Langston to meet with Peters.  Balducci waited outside during the first meetings

Balducci says that a few days before, there was talk of paying Peters $50k.  “Joey asked me if I had it and I said that I did.”  Balducci saw Langston take the envelope with the cash to Jackson and Peters leave the meeting with the envelope.

Continue reading Scruggs II trial: Balducci testimony

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, […]

What Zach Scruggs’s big brief says about actual innocence

Putting aside the Government’s diversionary tactics, this Court has recognized that the real question in this case is whether Petitioner joined the Government’s bribery conspiracy.  …But when this Court attends carefully to the law, it will focus its attention on two key facts concerning when Petitioner allegedly knew about the payment of money to Judge Lackey (November 1, 2007 at the earliest), and what he did or said to join the conspiracy thereafter (absolutely nothing).

This quote, from pages 22-23 of Zach Scruggs’s giant brief, frames the issues as clearly as possible from Zach Scruggs’s perspective.  The brief argues that the strongest construction to be placed on the Government’s case was that Zach learned everything he knew about the bribery part of the bribery conspiracy in that November 1st meeting.

A second point is that Zach was not shown to have done anything direct to participate in or join the conspiracy before this meeting, when he made comments about the editing of the order, just before the two bribe-related remarks.  From this, Zach makes another point:

Fact #2: After that moment on November 1, Petitioner never said or did anything to join any scheme to pay Judge Lackey.

That’s at page 32.  The brief is not crystal-clear, but I think what is being said is this:  At the time Zach did the only thing he did (talk about editing an illegally or unethically obtained order), he did not know there was a bribery scheme afoot.  Therefore, at that moment, he could not be said to have taking an affirmative act to have “joined a conspiracy to commit bribery” by helping edit the bribe-induced order.  He just knew it was earwigging-induced, even if moments later he learned about the bribe.

This presents an interesting temporal issue.   In one conversation, Zach Scruggs first assists in editing the order and then is in the room when the bribe is mentioned, first obliquely and then directly.  Can he argue:  My affirmative act (editing) was before I knew it was a crime?  If it was a month before, he’d be right, but in the same conversation?  And can’t a jury reasonably infer from the casualness of all this that it wasn’t news to Zach (Zach counters that by arguing he doesn’t listen, an issue he had three witnesses talk about at the hearing)?  Next question:  OK, so he didn’t join the conspiracy.  But doesn’t this evidence save the misprision charge?  On that last point, I’ll observe that, while Judge Biggers had much to say about the misprision charge in his summary judgment motion, the Government said almost nothing about it in their motion to dismiss.

Continue reading What Zach Scruggs’s big brief says about actual innocence

Today at the Zach Scrugs petition hearing

Today, Zach Scruggs hearing to overturn his plea began with the testimony of Tim Balducci.  Judge Biggers did not want to begin with opening statements, saying that he already was familiar with the issues.

It took the full morning for the testimony on direct to get to September; Zach only made brief appearances in […]

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 […]

AP is reporting that Tim Balducci is at home under house arrest in New Albany

According to this Hohlbrook Mohr story in the Clarion Ledger.

Former attorney Timothy Balducci, 42, was transferred late Friday from the federal prison at Estill, S.C., where he had been serving a 2-year sentence, to his home at New Albany, said D. Brown, an officer at the prison.