This is PART 2 of Monday, May 9 hearing before Judge Neal Biggers. Zach Scruggs asked the court to disqualify prosecutor Robert Norman from the team which will represent the government May 23 at a hearing aimed at convincing Biggers to throw out Zach's 2008 conviction and sentence.
Here, we'll pick up the 5-hour hearing, with most of this paraphrased:
Biggers: (to Norman) What did you expect from their testimony?
Norman: Langston would testify about the Wilson case. (Norman refers to an e-mail between Zach and attorney John Jones assuring Jones they can prevail in Wilson v Scruggs. This is the notorious e-mail that basically says "we can write the order on a napkin and get it OK'd.") Langston said, well, he had ot know about it (the DeLaughter scheme). Now, I understand Langston meant that Zach knew about Peters being hired, but it was not much of a stretch that he was "fully aware," althoug not necessarily feloniously aware of the scheme. That was enough for 404B, it goes to his state of mind. WE never said Zach was criminally involved with Wilson v. Scruggs. Our 404B doesn't hae to rise to that level. (Norman said the govt. likely would not have used this against Zach at trial, because "the landscape changed" when Dickie Scruggs pleaded guilty.
Norman: Farese's letter says Langston's situation didn't affect Zach. Tony called Mike Moore, and said Joey will not testify that Zach knew anything about Wilson. (Norman said he doesn't remember how the wrong impression was corrected with the court about Langston's testimony, but it was corrected.)
Biggers: Mr. Robertson?
Robertson: I'm sorry Mr. Norman says he's likely to get fired if these allegations are true. H says he corrected the record with the grand jury. Judge, you were right to ask about that. This "not a problem" and "sweet potatoes: stuff. These are key points about Zach joining a conspiracy and it never was corrected. Norman told you Langston would implicated Zach, that he knew friendly local counsel was hired (to influence DeLaughter ). That is not a felony. Both sides hired friendly counsel. We just must prove that you were misrepresented on material facts. Norman says the landscape changed, at the time the government said "no changes had occurred" in the case.
Robertson: He suggests we should have called Langston or tried ot. The premise is that we couldn't trust Mr. Norman's representation - the whole point is in making representations to curt, we are suppose to be able to rely on them. That's why we're here. Ultiamtely, we never received information that Langston would exculpate Zach.
Biggers: The court has heard arguments about who said what and when, differences of opions. Instead of relying on arguments, I want to hear the witness ay ait and when he said it. We will call Joey Langston at 1 p.m.
* * *
Retired prosecutor Tom Dawson enters the courtroom.
Biggers returns. Norman calls Dawson to the stand.
Dawson: lead counsel in Scruggs I, the Lackey case. Went to the grand jury with Norman. Under Norman's questioning, they walk through Balducci's testimony to the grand jury about meeting Nov. 1, 2007, with Sid and Zach at the Scruggs Law Firm. Says Balducci tells them Lackey wants another $10K. "It was not a problem," Balducci said. Dawson says he realized that the actual tape refers to a "load of sweet potatoes," which Dawson said is "code " for the money.
Norman: Do you believe it was an intentional misrepresentation to the grand jury?
Dawson: No. He also said he felt the problem was corrected. Also testified about FBI agent Bill Delaney's testimony to the grand jury, whichs supported recordings of conversations by Balducci, who was wearing a wire.
Norman: Did they say "we're paying for it?"
Norman: When BAlducci said the $10K was "no problem," was that a direct quote from Zach and Sid?
Dawson: He didn't say either one said that, just no response from either one.
Norman: Did Say say, don't talk about this in front of Zach?
Dawson: No Also said he recalled Norman's telling the court that Zach and Sid had no involvement with Wilson.
Norman: Did Joey say he would say Zach knew about Wilson v. Scruggs?
Norman: Were they indicted for Wilson?
Dawson: No, no criminal evidence against them. We had knowledge that Langston said Zach knew about hiring Peters, because of his close relationship with DeLughter. Our inferene was this was corrupt infuence. I also knew about the e-mail about the brief on a napkin, and that ramped up the quality of 404B evidence. Joey wasn't aware of the e-mail but before the hearings he became aware of them. If asked, I believed he would say Zach had to have known about the Wilson case. The e-mail string was quite illuminating. If Zach had no involvement in Wilson, why is he writing an e-mail to John Jones, the Wilson lead counsel? It's clear, he believed the Fix was in!
Norman: Did we explain to the court about Langston's saying Zach was fully aware of Wilson?
Dawson: no. The hearing to consider those motions was abandoned. Langston could have clarified Norman's statement to the court, if he had been called at that hearing. Doors could have been opened. Then the landscape changed, and it left oy Zach. Joey would not have been a witness for the government agsint him. Different from Dickie.
Chip Robertson: Mr. Dawson, you're a book author. When did you talk to Alan Lange (about working on the book together)?
Dawson: February or March after I retired.
CRobertson: Did you ry to make sure the grand jury got accurate information:
Dawson: Yes, Balducci was not inaccurate. I think the grand jury knew code words were being used.
CRobertson: Is there a need to clarify, unless something's unclear or muddy?
Dawson: We want to be as accurate as possible.
CRobertson: wouldn't it be more accurate with a tape or to read a transcript?
Dawson" Not necessarily.
CRobertson: (Goes through $10K testimony and "not a problem" by Balducci) Isn't that an absolute false statement? It would have been brought out in the transcript.Nothing about $10K in there? About the judge feeling exposed?
Dawson: no, that comes later.
CRobertson: (Asks about transcript, where it says there's a pause during Balducci recording with Backstrom and Zach) How long is that pause? It's 8 seconds. Balducci says to get it how you want it.
Dawson: He's just talking about paying a judge for an order.
CRobertson: Where is the talk about $10K? I'n asking you, where is the $10K that Balducci asked about?
Dawson: He says a "load of sweet potatoes" code word for more money.
CRobertson: I can show you where Lackey uses "sweet potatoes" about another order. Does Balducci use "swwet potatoes" before Nov. 1? There's nothing in here about $10K?
Dawson: It's no on the page.
Biggers: What is the issue?
CRobertson: Whether it says $10K or not.
Dawson:No, it doesn't. He made a misstatement about $10K but a few minutes later, he used the word "sweet potatoes" to say the same thing.
(They get into a disagrement about whether the term was used before with the grand jury, to understand if the grand jury knew what they were talking about. CRobertson says the term doesn't appear before this, but Dawson says the grand jury understood.)
CRobertson: Why didn't you play the tapes?
Dawson: I don't hae a specific reason why. Transcripts were available, possibly tapes. CAn't be certain. The grand jury is a proaby cause hearing.
CRobertson: And so, proalby cause doesn't require prosecutors to give the grand jury the best information available?
Dawson: I didn't say that.
CRobertson: And so, the grand jury believes that Zach agreed to pay Lackey another $10K? Is ti a crime to hire a laywer friendly with a judge, to hire local counsel?
Dawson: It's a crime, the last p[art about trying to seek influence.
CRobertson: When I was a Missouri supreme court judge, I had 26 law clerks. If someone hired one of them, would that be a crime?
Dawson: No. But a person can be fully aware of the situation without knowing all the details.
CRobertsn: Let's move on, Didn't you say about the e-mail about the napkin that it would be read tow different ways?
Dawson: If I said that, I was mistaken. Only one way to read that e-mail. What is Zach doing e-mailing if he's not involved in Wilson case.He talks about Langston and Patterson. I take that to mean "the Fix was in."
Biggers: Says if you want to know what Sanders thinks about the e-mail, call him to the stand.
CRobertson: We'll bring that up in two weeks. Did Farese say you misstated the evidence?
Norman: He said that to me.
* * *
2:05 p.m. Prosecutor Clay Dabbs called Joey Lanston to the stand.
Biggers - calls 10 minute recess.
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