By Patsy R. Brumfield/NEMS Daily Journal
OXFORD – Senior U.S. District Judge Neal Biggers today disqualified Assistant U.S. Attorney Robert Norman from the government’s legal team for a May 23 hearing about Zach Scruggs.
Late this afternoon, Biggers issued an order that will prevent Norman’s participation for the government as Scruggs, 36, of Oxford asks the court to throw out his 2008 conviction and sentence for pleading guilty to knowing about but not reporting a colleague’s illegal conversation with the judge presiding over a lawsuit against his law firm and others.
The ruling comes after a day-long hearing Monday about Norman’s possible disqualification.
(READ THE RULING ON PATSY BRUMFIELD’S BLOG, FROM THE FRONT ROW, ON NEMS360.COM, STAFF BLOGS)
“The court is persuaded,” Biggers wrote in his eight-page order,” that Mr. Norman made a material misrepresentation to htis court and to (Scruggs) and failed to take remedial measures to correct his misstatement in a timely manner, and allowed a document … with that misstatement o be filed after the government was advised of the error.”
Such an action, the judge said, is in violation of Rule 3.3(a) of the Mississippi Rules of Professional Conduct for lawyers.
The government said it needed Norman because he is the last original prosecutor on the judicial bribery case that sent to prison Scruggs’ famous father, Richard “Dickie” Scruggs, and three others in indictments claiming they tried to bribe the lawsuit judge.
Norman insisted the allegations against him were untrue.
Zach Scruggs says a 2010 U.S. Supreme Court case and new evidence prove he is innocent of all the charges.
He’ll attempt to prove that May 23 before Biggers in Oxford.
Among other statements written in Biggers order are:
• “Mr. Norman represented to this court … that Zach Scruggs was “fully aware” of what was going on in the Wilson v. Scruggs ase, implying that Zach Scruggs was aware that a million dollars had been paid by Richard Scruggs to Ed Peters to corrupt Hinds County Circuit Judge Bobby DeLaughter. In fact, the evidence available to the prosecution criminally inculpated Richard Scruggs but did not support the position that Zach Scruggs was actively involved in the Wilson/DeLaughter matter.”
(Wilson v. Scruggs was a Hinds lawsuit for legal-fees Roberts Wilson claims Richard Scruggs owed him for national asbestos litigation. DeLaughter presided over that case.)
• “Mr. Norman was advised by attorney Anthny Farese immediately after the Feb. 21, 2008 motions hearing that Mr. Norman’s representation to the court was incorrect. Mr. Norman admits that he initially “blew off” Mr. Farese’s attempt to advise him of his misstatement to the court.”
While Biggers writes that Norman and Farese may have thought the issue was resolved a few days later, “the matter remained unresolved with the court and (Zach Scruggs).”
In fact, the judge says, a month later, the government filed a brief saying “no substantial changes” had occurred in the case to require the court to re-evaluate its ruling to admit the misstated information against Zach Scruggs.
This document was signed by now retired Assistant U.S. Attorney Thomas Dawson, then-AUSA David Sanders (now a magistrate judge) and Norman.
“This document is puzzling, to say the least.
“There had been a significant change” in the (prior bad acts) evidence against Richard Scruggs to the evidence against Zach Scruggs, the order states.
Biggers refers to potential testimony by Joey Langston of Booneville, who once represented Richard Scruggs. Langston told the court Monday that he never said Zach Scruggs knew anything other than Peters had been hired to the lawsuit legal team, not to corruptly influence his old friend, DeLaughter.
The judge also writes about government persisted in its bad-acts evidence against Zach Scruggs more than two months later, when Zach Scruggs’ attorneys asked the court to exclude the evidence. The motion was denied.
Zach Scruggs chose not to pursue his motion, which was set for a hearing on March 19, 2008, and instead pleaded guilty two days later to a reduced charge.
Biggers reminds the order’s readers that the “standard for disqualification of an attorney is very low.”
Because of this low standard and “because no explanation was offered the court for the failure adequately to correct the record,” Biggers says he is “compelled to find that the neglect reaches the level of ‘impropriety,’ within the meaning of that term as contemplated by the Fifth Circuit.”
The judge says Zach Scruggs “has proven misrepresentation to the court” and that it was not remedied in a timely manner.
While Biggers says Scruggs was advised about about his situation with bad-acts evidence before he entered his guilty plea, “there is no evidence” he was advised “by the U.S. Attorney’s office or that the court was at all.”
The chain of talk from Norman to Farese to Scruggs’ attorney Mike Moore “was wholly insufficient.”
“The failure to do so cannot go without some consequence,” Biggers says.
The judge said that while the misrepresentation may have been an unintentional mistake, Bigger writes that “the court is nonetheless nonplused by the government’s failure to correct this mistake.
“The court is further baffled by the government’s inconsistent statement in its response to (Scruggs’) renewed motion to exclude” the bad-acts evidence.
Biggers said the court isn’t finding that Norman “had any malicious motive or intent behind his omission to correct” the misstatement of what evidence was available as to Zach Scruggs. He said Norman has always been known “to be a conscientious and capable attorney of high integrity.”
The judge deems the failure to correct the mistake as “a matter of neglect, which is “inexcusable under the law and the facts of this case.”