By Patsy R. Brumfield / Daily Journal
OXFORD – Former state auditor Steve Patterson recalled from the stand efforts to recruit Ed Peters to influence then-Judge Bobby DeLaughter.
The hearing time went more quickly than originally planned, so key witness, former Booneville attorney Joey Langston was not yet available to take the stand at 2:45 p.m.
Proceedings resume Tuesday morning.
• • •
The hearing began this morning before Senior U.S. District Judge Glen H. Davidson
Scruggs’ attorney seek to convince the judge to set aside his 2009 conviction that he improperly influenced then-Hinds circuit judge Bobby DeLaughter to rule in his favor in a legal-fees lawsuit, Wilson v. Scruggs.
(Below is a running account of court action. Please excuse the typos and glitches likely as I type fast.)
MIKE RADER – We planned to call Ed Peters. But attorney said he can’t hear at all and can’t testify. Mr. Norman and I agreed we’d enter into evidence the 4 302’s, including one for motion to clarify and also grand jury testimony.
NORMAN – Correct, probably good time to ask for guidance from the court on other evidence. About order to show cause … we left to wonder if they are in evidence or if we need to be more specific. This is one of those documents. Includes Langston plea package, Patterson/Balducci depositions, Langston’s grand jury testimony.
JUDGE – They were attached as exhibits to pleadings. Need to look at them as exhibits at this hearing.
NORMAN – Want to offer Peters grand jury and 302s [PRB – those are FBI interviews]. Page 13 – reads list of documents. All those matters we offer at this time, along with Peters grand jury testimony.
ROBERTSON – We haven’t had opportunity to examine ….
NORMAN- We withdraw our agreement.
MOORE – Confronted this morning, his lawyer said he coudln’t testify because of deafness. Tried to work out agreement with govt., we were ast into position to get something in record. We want Mr. Peters to testify. It’s like the others. We’re case in a bad position.
NORMAN – My problem, is they say they object to cross-examination in depositions. No cross in grand jury.
ROBERTSON – We understand they’re going to bring Balducci in. Can cross him then. Patterson hasn’t shown up yet. Trying to make it as streamlined as possible. Grand Jury not cross-examined testimony.
JUDGE – Norman, witnesses you will call ….
NORMAN – All same under subpoena. Don’t know we will call them. Langsotn, Balducci, Patterson, Peters. My point is that we agree on grand jury testimony, then why not agree on others.
JUDGE – I’ve reviewed all exhibits. Will admit them all into evidence, in this proceeding, for the record.
ROBERTSON – Can we cross?
JUDGE – Any witness called is subject to cross-examination.
ROBERTSON – Thank you, your honor.
JUDGE – I wouldn’t do this in a jury trial. I’ve seen and read every one of them already. Make them part of the record in this hearing. Need to give these exhibits some numbers for the clerk. Now, admitting Peters documents.
RADER – Calls Steve Patterson
2:05 – Patterson takes stand. Lives in New Albany. Former state auditor 1992-96.
RADER – (After left office?) Started consulting firm. (Also move into Langston office) In Booneville, Balducci came later. Then went into partnership with Balducci in New Albany. (At this time?) Sharing offices in Booneville. (Ed Peters … how came to know him?) Had known him socially first. Was Hinds DA, also Yazoo. Known him hunting and fishing, social friends. After auditor, I did biz with him in a professional sense. (Note timeframe boards to him… relationship with Peters 2005-6?) Good relationship for 20 years. (In 2005-6? ) Good.
(Wilson v SCruggs?) Know about it. (At some point, Langston became DS’ lawyer?) One of them. (From onset, you were involved in process to get Peters connected?) That was my first involvement. (Why necessary?) Well, at time, we thought it was necessary because they hired Bill Kirksey on other side of case. Concern that his hire was meant to gain them some kind of advantage with DeL… they were former law partners. (About DeL… how Peters’ relationship?) Student-mentor relationship for DeL … Ed had been vital in his appointment to various judgeships, to his electoral success. His legal and personal mentor. (Peters like father to him?) I have described it that way. (Well known that Peters was a defacto DeL campaign mgr?) Yes. (Throughout process, did Peters ask people for money?) He certainly asked me, think he did from others. (To keep DeL on bench?) Yes.
(Let’s not beat around bush … no question, case involves… to get Peters in Wilson case was that he could get ex parte with Del?) Yes, we also feared theyw ere doing same with Mr. Kirksey. I think it evolved, no denial, Didn’t start out that way. (From beginning with Peters, what part did you play?) I intro’d him to Langston. Think they sort of knew each other, no friendship though. (After involved, go to meetings with Peters, Langston, Balducci?) Yes (To grand jyry, 4 meetings … some kind of groupings with them.) No, I never testified to grand jury, period. (In your depositions, these people met … at Jackson?) Yes. (During meetings, 4 meetings … during most of them, would they let Balducci in the room?) He sat out in lobby. In one meeting, it was just him and me with Ed. Most he did not come into the room.
(Approx how long after Peters contact by you, was first meeting?) I don’t recall. (Recall in general first meeting?) Yes, simply making intro to Joey. Joey explained to him what case was about, progress, case had been going on a long time. Briefing, to gauge his interest in being involved. (Money?) No. (Later, he was paid $50K?) Balducci’s, yes. WE agreed on cash, it was my idea. Ed was re-doing hunting camp and complaining about money for repairs. Nothing sinister, My idea. Tim shows up with cash. (After meetings, what involvement di you have in Wilson case with Peters?) Very little. I’m not lawyer, had no substantive involvement. From time to time, took calls from Peters. Like switchboard between two. I knew how to find them, how to talk to him in spite of his hearing deficiency.
(At any point, met with DS about Wilson?) Never spoke to DS about Wilson ase, ever, until months after made call. Only one time, jury selection, had set up HQ at Old Capital Inn. I came by, they asked me to look at potential jurors. I didn’ tknow any of them. Ed didn’t either. Don’t know they ever exchanged a word. Only instance I was involved in their presence.
(Aug. 2006?) Getting ready for trial.
(At some point, DeL issue of judgeship came up. Who?) Ed Peters. (Prior to his bringing it up, he was involved with helping DeL to county judge and as circuit judge?) I think so, yes. (Also had been trying to get Bobby to federal bench?) No secfret that DeL wanted to be federal judge. Everybody who knew him knew that. (In your memory, was Peters trying to get appointment well before Wilson ase?) Absolutely. (Talk to you before that about it?) Yes. (Even after Wilson over, kept it up?) Oh, yeh.
(After judgeship brought up … you testified… Langston too… did you tell Peters that judgeship had nothing to do with Wilson?) I was there and was said by Langston … (You told Peters and so did Langston that judgeship had nohting to do with case?) Ed knew it, no need for conversation, but it happened anyway. (Did he tell you, judge was going to follow the law?) From first meeting, Ed was adamant … nothing but kind about way in which DeL would act, that he would follow the law. Always warning the lawyers, better be on your game because DeL will read it and embarrass you, follow law no matter what.
(In Wilson, to follow law?) First conversation we had… Ed said shouldn’t worry about Kirksey because DeL was going to follow law no matter what.
(Masters in political science?) Yes. (Political involvement many years?) Yes. (Know what a quid pro quo is?) I do (Something of value for something of value?) You aware Lott called DeL? I am. (Ever considered that quid pro quo?) I didn’t. Thought it was pretty stupid thing to do. (You said it was inane?) Yes. (Why?) We were getting what we needed. Why buy the cow when you’re getting milk. (When stated that, why make this offer if Peters already getting it done before mention of judgeship?) That’s what I’m testifying to. (Call unnecessary?) Yes. I thought it would spook the judge. Not needed. Peters…. everybody knew DeL wanted to be a judge. Knew we’d try to help him become a judge. Just not needed.
(DeL, doing what he was doing because of Peters?) I think he was following the law, Ed’s relationship didn’t hurt. (But ex parte contacts and secret access so described, he was getting that beause of father-son relationship>) Yes. Not secret. Everybody knew special bond between Pete3rs and DeL. (Ex parte … occuring before judgeship mention?) I now understand that, yes.
(Balducci, at this time, was Joey’s associate?) Yes. *(Representing defense team with Langston?) Yes. (Balducci told govt. that it was evidence a clear plan previously agreed upon betwen Langston, Patterson and Scruggs for faborable ruling to get federal judgeship.) Never heard that. (Ever hear statements like that/) No. Remotely ever happen?) No…. well, remotely … sometime long after case resolved itself, remember conversation with DS months later, I told him I continued to try to help DeL. (Ever at meeting or aware of one where Peters said afraid DS wasn’t going to follow up with promise of fed judgeship?) First, I =don’t think DS can provide judgeship. Maybe was afraid he wouldn’t followo up…. is that what you mean? (No, Balducci said Peters said DeL was afraid of being double-crossed?) No (Balducci said DeL was passed over … also said group told that DeL was very upset and felt like he had exposed himself helping DS in Wilson case … and beginning to worry DS wouldn’t’ follow up? Did that happen?) No.
(Balducci also testified that after the meeting, you and he reported back to DS that DeL was nervous and wasn’t going to follow up with deal?) Total fantasy … Only conversation ever had with DS … was long, months after… that call from Lott. Perhaps as long as a year. (March 2006, call from Lott, change anything with Peters access?) To my knowledge, it did not.
(Mentioned earlier about Balducci … that DS said DeL was getting nervous, after that Lott asked to call?) It didn’t happen. What happened, only DS and I spoke and language using about reneging, that language never was mentioned. I did have a conversation with DS about a year later… Ed Still wants DeL to be a judge, what should we do to help him? (Balducci said in meetings with you …. way back here, couldn’ tknow about a call from Lott?) No. (Factually, couldn’ thappen?) No.
2:31 – DAVIDSON – Asks adjustment on charts. RAder readjusts them.
CLAY DABBS – Cross examines Patterson.
(Made comment… when heard Lott had called DeL, you said why buy the cow? Is DeL the cow?) That’s right. (DeL and Peters did not know DS?) No. (What they knew, communication with you?) I think they knew who he was. Know him personally? No. They knew his fame, success as trial lawyer, activist politically and otherwise. (But they didn’t have type relationship with DS as you or Langston?) Correct. (Other than just knowing from a distance, one way they got more info about DS would be to communicate with you?) Repeat, did I talk to them about him? Yes, I testified about that. (You testified at Zach Scruggs’ hearing?) Yes. (Isn’t true that in your cross … anybody that knows anything knows DS is somebody you want on your side if ambitious for federal judge?) Yes. (Said DS was a go-to guy for federal judgeship?) Yes. I would be too if bro-in-law was U.S> senator.
(In 2006, DeL was being corruptly influenced?) No dispute, that Peters was having ex parte communications. Only DeL can say he was being corruptly influenced. (But Joey, DS pleaded guilty to that?) Yes. (During that time, call comes from Lott?) Yes. (It was revers contingency agreement in this deal? You involved?) No, I know about it, not involved. (Describe it?) Wish I had. Well as I understand, DS and Langston figured how much the settlement might be. If bring it in under a certain amount, resolved under certain amounts, the X number of dollars in it for you. (Lower the settlement, the more everybody gets paid?) Yes, up to a limit.
(You testified … DeL was choosing between forensic accounts… affected contingency agreement.) yes. (That the quantification motion?) Yes. (Reverse deal – everybody motiviated to keep it as low as could?) Yes. (Before DeL entered quantification motion?) Yes. (Eventually paid Peters $1M?) Yes. (Then, reverse deal put into writing after fact?) Yes. (Agreement didn’t say anything about Wilson ase?) Correct. (No mention of Wilson?) Don’t know that was reason. Trying to create a business relationship.
(Payments rewarding Peters?) Yes. (Nothing said in agreement/) Yes. (You said one conversation after fact with DS … about Wilson?) Not about Wilson… one conversation with DS about Del. (If Balducci and Langston had, you weren’t there?) Right. (Possible they did?) Yes.
2:39 – RADER re-direct
(Peters testified … said taht his presence in DeL court was influence was enough?) Peters presence with DeL was influence enough. Don’t disagree. (REverse fee, anythiing to do with quantification motion? Just with Peters to influence DeL?) That’s correct. (What fee was for was for Peters to have access to DeL? Well before mentioned judgeship?) Correct. (That’s not a crime?) You’re the lawyer.
2:41 – MOORE – davidson – LET’S TAKE 10 MINUTE RECESS.
• • •
OXFORD – Testimony continued after a noon break in Day 1 of Richard “Dickie” Scruggs’ push to have his 2009 judicial-bribery conviction set aside.
First witness was his brother-in-law, former U.S. Sen. Trent Lott, now a lobbyist in Washington, D.C. Lott testified that he spoke with then-Hinds Circuit Judge Bobby DeLaughter to answer questions he had, Scruggs told him, about the federal judicial nomination process.
Lott, though, said he did nothing to encourage DeLaughter’s interest and felt the judge should not have felt anything but discouragement about his quest, after their conversation.
(Below is a running account of the afternoon’s first session. Please excuse the typos and glitches likely as I type fast.)
• • •
1:16 – Davidson back.
NORMAN – Wants to clarify something. Dabbs tells me I mis-stated something. SAys that wasn’t correct (I’ll try to figure out waht Norman said, if it’s important… related to Peters, not DeLaughter, apparently.)
LEE MARTIN – (Hugh Gamble, former Lott staffer. Lives in Washington, D.C. Works as legislative director since Jan. 2010 for Sen. Saxby Chambliss, Georgia. 1998 grad, Millsaps. 2004 grad Ole MIss Law. March 2005-Dec. 2007 with Lott.)
Gamble says he was policy adviser for Lott. Handled things like judicial nominations for Lott. Russell Senate Office Bldg.
(Let’s go back to March 29, 2006 call from Lott to DeLaughter. Recall?) Present in room with Sen. Lott. (Why there?) Sen. Lott was not in his office before. Called assistant and told her to get DeL on phone and I was at my desk and buzzed that Lott wanted me in his office. I was waiting for him. (On speaker?) No, I only observed Lott’s side. (What recall?) Conversation didn’t seem very remarkable to me. By that point with Lott, we had several judicial vacancies at district level. Observed him having conversations with a few people about that. He had a standard set of talking points he used. Just extremely careful about them. With DeL, about process, criteria, how process moves forward. Very much a superficial conversation.
(Did he explain, about joint recs?) Always communicated that there were no selections made independently by either of the senators … with Cochran. Do it together. (Said will take Cochran’s assent?) Correct. (Did he talk about a Coast seat?) Yes, mention. He also was careful to discuss one criteria was geography, and where that vacancy existed … for example, with Coast judge, they would typically look for a resident of that coast community. He said one seat for a coast seat. (At time Bramlett took senior status?) Yes. (From Coast legal community?) Yes. (DeL lives?) Hinds County.
(Approx, how long call lasted?) About 4-5 minutes. (Recall Lott ever telling DeL that he’s going to recommend him?) No, quite the opposite. (Tell DeL to put name on list?) No, he did not. (Entire call?) Yes, I was. (Anything Lott said during call that should give DeL an impression he was under consideration?) Uh, no. (What at end?) As it wrapped up, Lott asked for DeL to send resume’ and then wrapped up with polite remark. Turned to me, said no further action necessary. Courtesy call. (Nothing else to do?) Correct.
(Mentioned several vacancies during this time? Lott talked to a few people?) Yes. (Other conversations with Lott… were those any different than with DeL?) No, they were not. Same each time. He was careful to deliver same message to each person. (Methods conveyed to DeL, same to all others who expressed interest in judgeship?) Yes.
(After call, any further action?) No further action.
(After March call, did Lott get a letter and resume/ from DeL?) Yes, we did. (Puts letter on screen … March 30 date … Is this is?) Yes, it was. (Did Lott offer to receive resume from anyone else?) Yes, John Corlew. A copy in the file, not sure when arrived. Fax cover sheet from Mr. Corlew. He’s an attorney, someone who Lott is friendly with.
1:28 – NO CROSS
MARTIN – CALLS BRAD DAVIS
DAVIS – Lives in Brandon. UM grad, undergrad. Law School, grad 2004. Employed at Thad Cochran’s Jackson office. Office director. With Cochran, held different jobs for him. Dealt with judicial nominations, 2005, 2007. Kept senator advised about changes, kept running list of possible candidates or supporters of someone else.
(Familiar with those who’s contacted him?) Yes. (DeLaughter?) At time, knew from his civil rights work, from movie and book. (Beckwith case?) Yes. (Circuit judge?) Yes. (Ever attention that DeL appointed federal judge, interested in it?) Yes, a letter he sent in 2006 to Cochran. (Shows letter … NO OBJECTION … Exhibits 10-12, NO OBJECTION) (MR. DAVIS, see it? March 10 letter?) Yes, it is. (From DeL to Cochran?) Yes. (Attached resume’?) It was. (Did you at any point talk to DeL?) Don’t recall having done so, but reviewing files, I believe I had a conversation with him. Call… he was expressing interest in southern MS judicial vacancy. (Also learn he had spoken to Cochran?) Yes, he said he had spoken to Cochran. (When?) Call was January 2007. (Who is Barney DeLaughter/) His father. (Talk to him?) I did. (What said?) Same, Barney called to talk to Cochran. I returned call and discussed with him about process to be considered for federal judgeship. (Before or after son?) Before.
(Know Ed Peters?) I do, was DA in Hinds at one point. (Receive correspondence from Peters about DeL?) Yes, we did. (Shows him letter with Peters’ signature. Jan. 18, 2007. Purpose?) To recommend DeL for federal judgeship. (Contacted by others for DeL?) Yes, that is correct. (Another letter from Judge Breland Hilburn?) Yes, recommending DeL for federal judgeship. (Another letter?) James H. Herring to Cochran, recommending DeL for judgeship, He’s attorney in Canton. Active in GOP politics.
(Others who contacted Cochran about DeL?) Yes sir. (Recall others?) Jim Ingram, deceased, former state/fed law enforcement. Brought resume’ to Cochran office, to send to D.C. office Jan. 2007. Retired FBI. Also commissioner for Dept. of Public Safety. (Who else?) Hinds farmer named Ted Kendall. Approx Jan. 2007. (Anyone else?) One more, John Corlew, mAde contact Jan. 2007.
(William Roberts Wilson Jr.? Cochran supporter?) Yes, Yes. (Children worked for Cochran?) Yes, daughter, there in 2005-2007. Worked in personal offices. At some point, she transferred to Senate Appropriations Committee. In D.C.
1:39 – NO QUESTIONS
CALL CHIP REYNOLDS – Lives in Clinton. District Dir for Cong. Gregg Harper. Take care of offices in district, four, personnel, cover 24 counties in district. Worked for him since Jan. 2009. (Worked for Lott?) Yes, I have. 1994 did re-electIon campaign. On Senate staff out of jackson five years. 2000 – did re-election campaign. (Fair to say you’re well-known connections with Lott?) Yes sir … done campaigns for Phil Bryant for Lt. Gov. Amy Tuck for Lt. Gov., Chip Pickering to U.S. House. All on the R side.
(KNow Bobby DeL?) Small town MS. I’m from Clinton, known him for a while. (Close?) Not really. (Mississippi – know each other?) Yes. (Back to early March 2006 – recall meeting with DeL?) Yes, sir, it was more happenstance. Met with him, in Hinds Courthouse. We talked a few minutes in chambers. Federal judgeship was open and he asked me how to let Lott or Cochran know about his interest in it? I simply said, all you do it call Hardy Lott and get on his Call List. Also, letter showing interest. (Hardy Lott?) She’s the scheduler. (If DeL had interest, did you recommend him?) No, Just interested. (Said get Lott and Cochran?) Yes, through scheduler to talk or with letter/resume’.
(Did he say he’d been passed up for magistrate job?) I don’t recall. (After conversation with DeL, any further conversations with him about this?) Not that I know of.
1:44 – NO QUESTIONS FROM GOVT.
ROBERTSON – Could we take a short break? DAVIDSON – 10 minute recess.
(Scruggs attorneys want to talk about next work in hearing.)
• • •
(Below is a running account of courtroom action and testimony. Please excuse the typos and other glitches likely as I type fast.)
Prior to the hearing start, likely witnesses in the courtroom included former U.S. Sen. Trent Lott, Lott’s former legal aide Hugh Gamble and former Hinds D.A. Ed Peters.
(Peters and DeLaughter will not testify, I have learned.)
Among Scruggs lawyers are Edward “Chip” Robertson, David Martin, Michael Rader, Mary Winter and Michael Moore. Prosecutors are assistant U.S. attorneys Robert Norman, Chad Lamar and Clay Dabbs, also Criminal Division chief John Marshall Alexander. Norman says US Atty Felicia Adams won’t be here.
Also in the audience are Scruggs’ wife, Diane, her sister, Lott’s wife, Trisha, Zach and his wife, Amy, and locals including attorneys Larry Little, Cal Mayo, Al Povall and Tom Freeland, as well as Jackson attorney Bill Reed and Greenwood attorney Hiram Eastland Jr. By the start of the hearing, some 40 people were in the audience.
• • •
10: 11– Court reporter enters courtroom. This may be why it didn’t start as scheduled at 10 a.m.
10:15 – Davidson enters courtroom. Calls the case. Petition seeking relief $2255 US Code, purpose is evidentiary hearing relative to that petition. (Intros attorneys)
Make a couple of observations – U.S. v. Skilling about honest services statute. The court will be guided by US Supreme Court’s decisions on burden of proof, which is actual innocence. 20 mins opening statements.
ROBERTSON – Order we must show there was no bribe in this case. (Winter putting up numerous charts.) Bribe involves specific intent of something of value in exchange for a judicial decision. If quid pro quo misses quo, there is no bribe. Only two people involved – Ed Peters and Bobby DeLaughter. Both of them said no quid pro quo. Circumstantial evidence is all that’s left. We see first amendment implications. Caution court to move carefully. To remove that right, we must be careful before we can criminalize it.
At end of day, evidence will show no bribe. You know history of this case, Wilson v. Scruggs. Involves asbestos case. Whole thing turns on …. relationship between Peters and DeLaughter. In this case, he tried to help DeLaughter to become U.S. magistrate. So, why is Peters involved at all? Evidence, that he was asked to ensure level playing field – that Scruggs worried that Delaughter’s former partner Williams Kirksey had an advantage.
Quid – must be looked at, possibility that judgeship has value. Did DeLaughter see value? Suggest that timing … unlikely that DeLaughter thought it had value. It is the quid that must cause the quo. So, we know … Federal opening was Feb. 2006. Before there is no opening. So, that’s the first time there could have been any interest in it by DeLaughter. Know Joey Langston said idea to help him occurred late Feb., early March. Prior to, judge already applied for magistrate job.
What is the value Dick Scruggs could offer? DeLaughter was Democrat, Trent Lott was Republican. Bro-in-law relationship … assume DeL believes that relationship will overcome politics. March 29 phone call to Trent Lott is first indication that DeL knows Scruggs is going to help him. (2006) Evidence that Lott … on date, he gave DeL no comfort. He said, first that BArbour’s seat to be filled by Dan Jourdan. Bramlett’s seat is a Coast seat.. he said. DeL doesn’t live there.
Judge Lee takes senior status after the call. Jourdan nominated to take Lee’s seat. Trent will say White House got the Barbour and Lee seats mixed up. Left Barbour seat open. Lott will say Barbour’s seat had been filled. No hope it would come to DeL. So, does that have value? Should have ended idea that Scruggs could help DeL. If quid had value at all, it ended on June 6, when Southwick appointed to Barbour seat. He was withdrawn and ultimately went to 5th Circuit. But he was nominated after case settled.
Reason that ends it, Lott phone call. (Davidson – Southwick to 5th?) Yes, originally, nominated to fill Lee seat, then pulled him to 5th. Yes, Dick could have told Trent to do… but Trent said it will be only a courtesy, about the process. But he says Barbour seat is full and Coast seat, DeL doesn’t qualify.
What about quo? What is DeL giving in return for phone call? Supposedly, “secret access.” That Peters can get in to see DeL any time he want. That, we cannot dispute – that Peters got in. EVerybody knows that. Second? Rulings that will favor Scruggs. Only two things he could have given in return for call. And, if Lott’s call meant something … then, DeL must know that there’s nothing he can give for this “consideration.”
Let’s move to pro? If quid has no value, quo is secret access. What links? First, this secret access. But government indictment says access begins back here in August 2005, and it continues they say through the case for a full year. Now, if there was secret access to give, result of March call, this secret access existed all the way back here? DeL and Peters met often before judgeship open. That can’t be it. Nothing Scruggs gave for secret access. WE know DeL and Peters relationship is such is for secret access is Peters. WE know that from Eaton v. Frisby. We will show judge’s order in that case, happened without any judgeship. They talk all the time, nothing else needed. Now, Peters made a lot of money off of that access, but we know DeL never got any of it.
What about favorable rulings? Critical ruling is Aug. 23, 2002. DeL comes to bench in Hinds County, June 2002. Judge there retires. He has order in the case that says “existing means existing.” If not in contract by then, the 40% isn’t due Wilson.
So, DeL adopts that interpretation. And then, after Peters gets involved, special master recommends that fidiciary duty claim isn’t viable – important because it puts Scruggs out of harms way for punitive damages. Dec. 2005, DeL rejects that – exposes Scruggs to punitive damages, not favorable. Then, special master report Jan. 9, 2006 – changes the interpretation of the same paragraph. Continuance then, that DeL says report is radical departure from order he signed. He says that at hearing.
Langston/Balducci enter. Scheduling order entered. Govt says it’s proof that quid pro quo is in effect. No talk about any kind of judgeships at that point. That’s proof that Peters gets in without federal judgeship. Govt.’s own indictment defeats quid pro quo.
What else? June 6, Southwick nominated. Bramlett seat still open. Lott says you can’t have that to DeL.
Series of rulings favorable to Scruggs, some not. … DeL on motions to strike Wilson’s experts. Why? DeL says it’s inconsistent with earlier decision… all the way back here. His guidance order refers to motion to strike the experts. Says it’s inconsistent all the way back here (walking through charts). If read it, it adds up to nearly $7M. All along, sCruggs team believes this is the rule and that they have been making payments consistent with it. Order says you owe $7M. All of these flow from this (goes way back on charts). Is this a result from a phone call that happened 3 1/2 years later? It can’t be.
Even if you believe Scruggs believed call… it’s gone by then. Secret access all before that. These rulings supposedly shaped for Scruggs’ favor because of phone call could have done nothing but discourage him, all consistent with this ruling back here.
Doesn’t matter if they were legally correct, just that they were consistent. But Govt. thinks about all this overruling stuff after Peters is involved… but it’s a function of these orders.
No “pro” – no deal here, nothing that causes these, as a result of what Scruggs does.
NORMAN – 10:38 – I would submit that the scheme began summer 2005, with loss of case…. Scruggs outraged at $17M judgment. He called Langston to meet him in New Albany to discuss how they would make sure that would not happen again. Langston’s testimony … would be that when they met, Scruggs was furious. Wanted to fire Jones, Dunbar… couldn’t believe judgment. Langston asked that he not fire them, to continue, but that Langston and firm would take lead. First thing they did, at Scruggs’ request, that he suggested some lawyer said to tell him need Ed Peters on your side.
Langston took that and went back to firm, with Balducci and Steve Patterson. Patterson said he’d talk with his friend Ed Peters. He did. Said Peters said he’d be happy to assist, pay $50K with cash money. First clue. Flew to Jackson, met at airport, paid Peters $50K in cash. Langston told him off 1099. Peters said I’ll not be able to get him to rule contrary to law. but they said wanted his help anyway. Not paying him for legal work. He wasn’t going to enter appearance in Wilson case. He went to work, results fairly immediately. Report of special master was quickly set aside by DeL, scheduled order that favors Scruggs team.
Case proceeded toward trial, Aug. 2005. Scheme was two-pronged – first, to pay PETERS $1M not for legal, but to influence DeL. Shows correct nature. Shows willing to pay $1M for secret access. To Hedge bet, played on second vulnerability – DeL’s quest to become federal judge. He had two weaknesses – friendship with Peters, ambition to be federal judge. Should know that won’t happen unless the gatekeeper, Scruggs, approves.
Spring 2006, as Wilson case hurldles toward conclusion, Scruggs team quickened pace. He called bro-in-law Trent, asked him to call. Senator did. Know from his deposition, he called and discussed with him process by which one becomes a judge. Senator will say he didn’t promise him judgeship, said his preference was for someone on Coast, a young man, minority or a female. But during conversation, DeL got the impression that this was his one final best chance to be a federal judge. Know? From his letter the next day. He doesn’t thank Sen. for courtesy call, he thanks him for his consideration for a judgeship… (reads from letter… as I said I am very interested, honored by your consideration.) Fix was in, hook was in. DeL sold his soul. In end Scruggs defrauded him, too.
As Langston said to grand jury, it was important that DeL believe we were helping him to become a federal judge. It worked.
They needed to know whether to object to qualification order. This is where extra incentives kicked in. This is when Peters realized he could make big money if he influenced judge to hold opinion. When Scruggs told them $3M could go to them, if they won.
Let me go back, they needed to know whether to object to order. Peters obtained from DeL final page, showing $0 money due. Emailed to them. They know not to object. The fix was in and they had won. When order was entered, it was verbatim what they had seen. Case is about scheme to defraud. Question is whether judgeship is worth anything – obvious, it is a thing of value. What DeL wanted more than anything else, sold his soul for just a chance … his last best hope to become Article 3 Judge.
MIKE MOORE – Calls former Sen. Trent Lott.
(Lott sworn in) State your name… Background) Lott tells about time in Congress. Past 4 years with Breaux.(From Aug 2003 – 2006 senators/) Yes. (Know Dick SCruggs/) From same home town, married to my wife’s sister. (Relationship?) Good, like all brother-in-law a few disagreements. Remain friends, wives close. We are together socially over the years. (Ask this, allegation made in court… Norman just said that Dickie Scruggs is the gatekeeper in federal judgeships as far as you’re concerned.) Absolutely untrue, very clear relationship with Sen. Cochran. we did our choices between the two of us. Assure you my bro-in-law … we disagree vigorously… nobody gatekeeper from MS except Thad, me and President of U.S.
(Dickie any influence on any of your selections for judgehships ever?) No, our relationship was such, came from different perspective. I was looking for different types on judiciary. Sometimes he thought my choice was good, He was not somebody I consulted. He’d be first to say that his weighing in might have reverse effect. (What?) I’d probably be very careful about recs he would make – based on philosophy, what I was looking for. In terms of people we selected to recommend. (In your role as senator, you have responsibility to people of U.S. and MS to help in selection process? Talk about that?) I was very careful. Thought it was one of most imp. thing a senator could do, especially for GOP president. If had two senators, worked it out in a lot of diff ways… but Cochran and I started in 1989. Knew each other long time. WE talked informally and almost without exception for consensus. Fifth Circuit – would rec three to president. Look at their education, demeanor, experience, did have good judicial temperment. Looking for younger who would stay on bench for experience. Paid attention to geography, to make sure all parts represented. Sometimes that weighed heavily in decision we made. But it was … very careful about that. Proof was in the pudding – look at caliber of MS judiciary – outstanding.
(How did names come to you?) A lot of different ways. I knew a lot of those considered. In some instances, I might initiate a call, asked about willing to serve. Can be financial sacrifice. Sometimes said no thanks. I would get calls from lots of diff people. Some would call and ask for consideration. Some friends, political reporters. Some GOPers I knew. Variety of ways. When vacancies, get a few more calls. But because way Cochran and I worked, we’d get together … and talk about what wanted to do. Would do it pretty quickly – didn’t want to wait. Get it moving. Don’t want vacancy to languish. Hear from a lot of people, but go on our own knowledge and make a quick decision. Yeh, calls from variety of diff people.
(Fair to say your process in later years focused on one individual?) Yeh, I started looking down road, watching young men and women. Successful in that. One on bench, knew him when he was in college, worked for me. I’d been thinking for a long time that he was kind of young man who would make outstanding judge. On Coast, had been watching him since 1970s, knew his father… very impressed, followed his careers, practice… been thinking for years he’d make great judge. Often, I’d call Cochran or he’d call me and tell me who he was thinking about. It was a very easy relationship. Also very helpful. We knew a number of judges were getting up in seniority, to think in advance.
(Timing, when considered someone, tell me how that worked? How long took?) Thinking about one in particular… watching young attorney for a long time. (IN this case?) Watching Dan Jourdan for a long time. Cong. Pickering a close friend. Talked to him in 2005, said I thought Cochran and I would be prepared to nominate him when time came. but when vacancy occurs, usually take a month or so. Cochran usually wrote the letter to president. Then month or two for background check… they must talk to people who recommend, lawyers etc. Pretty thorough check. Takes minimum 6 weeks or so.
(Mentioned Judge Jourdan… we have chart… third one… (Moore picks up chart) Shows Judge Lee takes senior status… Lott says he can see it…. shows Dan Jourdan…) ACTUALLY, WHEN Cochran rec Jourdan, we thought it would be Barbour seat. Sent first part of March. For some reason, they said they’d put him in Judge Lee’s slot. (Point trying to make, you said focused on Jourdan in ’05?) Yes. (Works out … process took?) Whole process usually take anywhere from… hardly ever … usually takes 6 month or longer. In one case confirmation took a years (Bramlett seat?) Yes. (When picked out man for the seat?) Been thinkng about him for a couple of years. Rec him to Cochran. Sent him his resume. Cy Fanaca recommended fro his law firm. Think .. I was impressed with him. Bramlett was from Natchez, I always felt it was a Coast seat … Cochran was committed to that. Felt like Coast was under-served by a federal judge. Thought we needed one from that area. He had a lot of support. That process had been under way for months, maybe two years. (Fair to say both judgeships … you were thinking about candidates in 2005?) Sure.
(What about other judgeship?) In that case, we knew again that Southwick … he indicated he would be considered. Think Cochran very high on him. He was in the mix but not to the extent like Jourdan or other. Surprised when Bramlett took senior status, he were classmates at Ole Miss. Guess I hadn’t thought about that. We had a rash of vacancies, then had 5th Circuit open later in year. (Did anyone ever contact your office in ref to Hinds judge named DeL?) At the time, I’m not sure I was aware of, how much I was aware. Letters etc. to my chief of staff, put in file. In retrospect, received letter from Judge DeL, filed in my office. I was not aware of it when I talked to him. Subsequent letter. In addition, John Corlew sent a fax … with resume .. he never called or inquired or pursued it in any way. That’s all I know. Not even letter to support. just faxed resume.
(Is Corlew someone you inquire with?) Yes, longtime friend. One of smartest lawyers I know. Type of person I’d call and ask for ideas about recommendations. Didn’t get many recs from him. Also one who I tried to take a federal judgeship – district and 5th. Said he didn’t want a divorce… his wife wasn’t excited about prospect. Can’t think of one or two others … I’d talk to Wicker or Pickering. Can’t think of many others, about who to consider?
(You had 2-3 people that you’d depend on? Did you depend on Dick Scruggs for recommendations?) No, I didn’t. But he knew all of them. Not one I’d call on.
(Exhibits – some letters like to show witness. March 10 letter, March 30 letter. Hand you these letters>) Don’t recall ever seeing March 10 letter, may have gone to Jackson office. (Question – who does that letter purport to be from?) Bobby DeLaughter. (March 30?) From Bobby DeLaughter. (Told us about process, Southern judgeship… did you get phone call March … before 29th before Dick Scruggs?) I thought it was same day. Came one afternoon in March. Seems to me came from Dickie Scruggs. (Where were you?) I think I’d been on floor of Senate. Coming down hall. Think call was holding. Took in office. (IN room with you?) Usually, have office counsel, Hugh Gamble, bring in file. Listen to conversation, about followup. (Anybody else in room?) No, Gamble only other one. Chief of staff was around corner, may have heard bits and pieces. Gamble there.
(Slow down a little… what did you say to Scruggs?) He said DeL was inerested in discussing process of how people selected for federal judgeship. Asked if I’d call him. I said I would. (Did you discuss DeL? Who he was?) I said I “know of him.” Don’t remember meeting him in person. Knew he was assistant DA, knew he was a circuit judge in Hinds area. Didn’t really know him. (Did DS … said asked you to explain the process?) Nothing more aggressive than that. Obvious that judge interested in process. Brief conversation. I told him I’ll place a call. (Did DS ask you to call DeL and tell him he’d get favorable consideration?) Absolutely not. He knows I wouldn’t do that. He knows me. While bro-in-law, this is kind of thing I’m very careful about.
(Did you call DeL?) I did, relatively short order, I don’t know. Later in afternoon, 5:30 Washington time. Don’t know what day of week. (DeL on phone?) AS I said, I told him how Cochran and I made these selections… probably said people thought we divided it up North and South… but told him we did it by consensus, no committee or anything. What we looked for, usual things. Also got into age, which I meant for him to think he was a little beyond it. Probably told him we have someone we’ve already recommended. Remember telling him that Bramlett vacancy would go to someone on Coast. Probably told him we’d keep resume in our file. No list, except with 5th Circuit where White House wanted more than one.
(Did you ever tell DeL he’d be considered?) Absolutely not, No offer made, no request was made.(Tell him his name would go on list?) I did not. No list. (Create any impression of favorable consideration?) I did not because I knew he would not, didn’t fit what wanted.
(Govt. alleges some kind of deal… that Scruggs asked you to … if that were true, you would have called him back?) First of all, it would never be true. (Did you call him back?) No, never had any further contact from DeL. No one else called me about him. No further contact from Dickie Scruggs.
11:20 – (On our timeline… we have red line, here … significance that Southwick nominated for Barbour seat June 6, 2006. We know from this, that all three seats were filled?) They had been nominated. (No open judgeships at that point?) Believe that’s correct. (DAVIDSON – Southwick withdrew and then bot 5th Circuit?) Yes. (DAVIDSON – Barbour seat stayed open?)
(Moore – confirmation process never occurred?) Yes, judicial appointments after about June in election year, it gets very hard to move judicials through process. (But in 2007, when Southwick nominated to 5th Circuit… ?) Yes, (Then seat open again?) Yes. (Man in Meridian nominated?) Yes. (Had presidential election and his nomination didn’t go forward?) Yes… some resistance… (DAVIDSON – REEVES?) (Moore – April 2011)
(Know Hardy Lott?) Yes… Hardy was my appointment sec for 20 years. I grew up in different era where expected to return phone calls. But Hardy, if there was somebody who knew me and schedule, they wanted a call, I’d try to return it before day was over. Call list….(If anybody got on list, like lawyer or judge candidate, would you have called them?) Yes, could have been car dealer, construction worked, good ole boy I met in Leakesville… could have been anybody… if got on call list. Always extend the courtesy I’d make a call if someone asked me to. (Nothing out of ordinary to call judge?) No. (Did DS every say, I have a case pending before DeL?) He did not. (Knowledge of this case?) I was aware there were disputes with Wilson case, maybe Luckey case. Aftermath of Katring lawsuits… didn’t know status of them or where they were… when I was trying to keep up with doing my job in Senate.
11:26 – NORMAN (Tell you that despite what Moore just said, this prosecution has never verbally or in writing every said anything that would put you in an illegal quid pro quo in any knowing capacity…. want to talk with you about… is perception that might have been created for Judge DeL… may differ from what you intent was. As powerful as a U.S. Senator is, you weren’t just that, you were majority leader of Senate) At time, I was not majority leader… served until 2001. Then minority. In 2006, I was not majority leader. (My point, you wielded tremendous power, had tremendous respect.) I served a long time.
(*You would have no way of knowing what was said to DeL about this?) No. (No way to know what Peters told him. what Patterson told him, Langston or Scruggs told him?) NO. (Need for record.) Answer is no. (Imagine with me for a moment, the excitement in DeL’s office … widely recognized as his ambition, his thirst for a federal judgeship. That testimony in record in case shows that Langston has said … that while DS always said he couldn’t ensure favorable consideration for judgeship, that it was important to his legal team to make DeL believe he was being helped with quest. Balducci and Patterson said they intended to target that ambition as a weakness. Given those insights, can you imagine the excitement in DEL’s office that he had a call from Sen. Lott, one of most powerful men in US Senate?) Well, first, most judges and a lot of lawyers, would like to be considered. I don’t know what was said to him before or after this… know that I was always careful in these calls, and can’t believe there would be any excitement after the call. Told counsel afterward, said NO FURTHER ACTION ON THIS… that was strictly was a courtesy call. He had to have felt that. For vacancies, we had other things in mind.
(We don’t question your intent. But when look at DeL’s letter to you next day, he says thanks for call … that he said very interested, honored by your consideration. I guess it speaks for itself. My point, DeL may not have interpreted as you mean it?) I can’t speak for his state of mind. One other person in room who heard me. (No doubt from your side. Patterson… can we agree … that because he’s not in your party but agree that Patterson was a signficant political figure during this time?) I don’t think that had been the case. Problems in his background, affected how he was perceived. I would not be one of those who thought that. (Patterson political figure for extensive time. Understood MS politics?) We could debate that. He was involved in politics.
(Patterson said that it was widely believed… true or not.. .that if you wanted to be a federal judge, you needed Dickie Scruggs’ tacit approval. I never said he had the authority to dictate anything to anybody. But Patterson has said perception was that DS was one of few people who would pick up phone and talk to Lott. If you wanted to be fed judge, needed him.) Well, anybody from MS would get same courtesy. I… in terms of DS with influence of my decisions.. if look at record, would show he was not involved. BTW, nothing was done about consensus with my colleague, Cochran. (I understand. I’m pointing diff in perception and reality>) I think it was contributed by Patterson and others involved with this. We had relationship with my bro-in-law, still be friends. Very idea that he was a gatekeeper or influence my decision, that absolutely wasn’t true. Cochran and I recommended others … who were plaintiffs’ attorneys including my roommate Pepper. Also some Dems, including women sitting on fed judiciary.
(But it signaled that he had no chance?) I suspect he thought he wouldn’t be seriously considered. (Didn’t you tell him your sorry bro-in-law recommended him?) That’s a long joke between us. (That was say you spoke to him?) Probably. (In end, say it takes at least 6 months… now takes a year… when process begins until sit on bench. Know from your deposition, that Ozerden took bench in 2007, which means process for him would have been a year prior to April 2007.) In that case, we had been talking about him since 2005, probably before that. Think we actually, he was nominated in Sept. 5, when nominated you’ve been in process for months. Investigation at least two months before nomination.
(You also said, none published until late in the game?) But one you made that call that he or she would be recommended to prez, it was out like wildfire. (My point being, in your conversation with DeL, you didn’t say it would be Ozerden?) No, I doubt I mentioned anybody. But probably mentioned I was looking for someone on Coast to take Bramlett’s place. (Several judgeships open then?) I don’t really follow magistrates thing too much. Recent years, they were nominated by federal judges, they set up committees. I think at least one open during that period.
(You have testified… I believe you.. that you did not know about any illegal quid pro quo in this case… that if any indication of that, you would not have made the call. Accept fact that you knew nothing about an agreement?) Absolutely not. (Between Paterson, Langston, Balducci,…) No indication from anyone that anything like that going on. Impossible to believe, if someone had told me.
11:43 – MOORE – (Two questions…. we talked about this perception. You said when you made these calls, you didn’t want to leave false hope. DeL?) Absolutely. On more than one occasion, I’d make a courtesy call … knew … I was very careful in these… In case of DeL, because of my absolute knowledge he wouldn’t be considered, can’t conceive of any reason he would think he would be considered, in any reasonable way. Why would I encourage him? I didn’t need that at that point in my career. (Imagine, Norman said, … OBJECT … statement you made, I can’t believe any excitement in DeL’s office/) After that conservation, can’t imagine there would be.
(March 30 letter … show you … remember our time frame, talk about Southern judgeship… look at first sentence?) He says, interested in position that MAY come available. Like he acknowledges there wasn’t one available. I never talked …. never saw his resume until a year ago.
11:45 – DAVIDSON – Sen. You’re excused. Be in recess until 1:15
• • •
OXFORD – Testimony begins today in the push by Richard F. “Dickie” Scruggs to set-aside a 2009 conviction in a second judicial bribery scandal.
Scruggs, 65, pleaded guilty to improperly influencing then-Hinds circuit judge Bobby B. DeLaughter, who presided over a legal-fees lawsuit against Scruggs and others.
Since then, the former Oxford attorney insists a 2010 U.S. Supreme Court ruling, Skilling v. USA, put his case in a new light – that the crime to which he pleaded guilty does not exist any more.
Senior U.S. District Judge Glen H. Davidson presides over the hearing, which is expected to last at least two days.
In 2008, Scruggs pleaded guilty to another judicial bribery case aimed at Circuit Judge Henry Lackey of Calhoun City presiding over another legal-fees lawsuit against Scruggs. He and three others went to prison in the case, and his son, Zach, went to prison after pleading guilty to a lesser charge.
This week, Scruggs’ all-star legal team, which includes noted constitutional law scholar Samuel Issacharoff, will seek to convince Davidson their client’s conviction should be vacated.
The effect would be to delete prison time from his record and bring him closer to release.
Courthouse observers say that either way Davidson decides, the case likely heads on appeal to the Fifth Circuit.
The hearing is scheduled for 10 a.m. in federal court in Oxford before U.S. District Judge Glen H. Davidson.