|May 09, 2011||SCRUGGS HEARING: More than what's in DJ printed edition||1 comments|
|May 09, 2011||SCRUGGS HEARING: Part 3, read the other 2 first or be confused||no comments|
|May 09, 2011||SCRUGGS HEARING: Part 2, read the other first||no comments|
|April 22, 2011||SCRUGGS asks Biggers for direct decision, no hearing||no comments|
OXFORD – Strap on your seat-belt folks, 'cause by the time May 23 gets here, this is going to be the movie that begged to be made:
Monday, Zach Scruggs' attorneys and federal prosecutors locked horns in Round One of a real prize-fight. We'll have a good report in Tuesday's Daily Journal, but I can't include all this stuff, so thank goodness for the blog!
As the Scruggs-case followers know, Zach wants the federal court to throw out his 2008 conviction and sentence. He pleaded guilty to knowing about but not reporting that a colleague, Tim Balducci of New Albany, spoke illegally to then-Judge Henry Lackey to send to arbitration a legal-fees lawsuit against The Scruggs Law Firm and others involved in Katrina-related insurance cases.
Whew! That's burned into my mind!
May 23 will be the start of the big-ole hearing in Oxford federal court about whether Senior Judge Neal B. Biggers will throw out the conviction/sentence.
If it's anything like Monday's Little Ole Hearing, this may turn out to be the trial that never happened.
Monday, Scruggs' team wanted to convince Biggers to disqualify fed prosecutor Robert Norman from the government's team for the May 23 hearing. They insist Norman committed prosecutorial misconduct by lying to the court that Zach was "fully aware" of the side-scheme to influence then-Judge Bobby DeLaughter in another Scruggs legal-fees lawsuit (Wilson v. Scruggs) and by not clearing up false testimony from Balducci to the grand jury that indicted Zach, his famous father, law partner Sid Backstrom, Balducci and former state auditor Steve Patterson.
It was a bit of a verbal slug-fest, shall we say.
The U.S.A. wants to keep Norman because he's the last one who has actual institutional memory of all the Scruggs cases.
Zach's team is loaded for bear with former AG Mike Moore, former MO Supreme Court Judge Chip Robertson, Mike Rader and Chris Robertson, who was the man to turn the lights out at The Scruggs Law Firm back in the day.
These guys have got their gloves laced up, Rocky fans!
Monday, they gave us just a taste of what's likely May 23 - they got after former prosecutor Tom Dawson and picked a bit at a defensive Tony Farese, of famed Farese & Farese defense term.
Let me see if I can walk you through Monday without burning your brain up: (Much of this is paraphrase)
10:08 a.m. - Biggers enters courtroom.
Judge says we're here to talk about disqualification of Norman, that he might be a witness. But now, I find out the petitioner no longer is interested in that.
Chris Robertson says that depends on several things, but we're quite serious about putting Norman on the stand.
Biggers: I'm under the impression that's no longer an issue. (a bit peaved, may I say).
Robertson: We've seen several representations from Mr. orman. None is supported by testimony. A choice - remove them from the record or let him testify.
Norman: We anticipated these kinds of attacks. Taking these allegations, there are other people who were present who can testify - Dawson, Joey Langston, others. (About testifying) I think I need to do that, but I have the corporate knowledge to help my fellow government attorneys. There is no prohibition to my testifying. WE believe we should reserve the ability for me to act as counsel and to testify, if need be.
Robertson: On this point, the procedure is fluid. It partly explains the ambiguity you are sensing, we are too. Problematic for a prosecutor to testify. Can't be an objective witness. WE suggest there are plenty of attorneys to represent thegovernment. (He acknowledges that other witnesses can testify about issues before the court.) He drives home their concerns about Norman's misconduct with the court about alleged "other bad deeds" (404B) evidence he told Zach was "fully aware" of back in February 2008.
(They argued over whether court rules bar prosecutors from being witnesses, or it if just says "at trials" or "bench trials," "jury trials," and so on.)
Biggers: What about other prosecutorial misconduct issues?
Robertson: Says he's feeling discomfort at alleging misconduct by a fellow member of the Bar, but that's why the court has adopted rules to deal with that. He says one biggie is Norman's allowing Timothy Balducci's false testimony to stick with the grand jury, which indicted everybody in November 2007. This is how the whole process began, the huge public unveiling began. Mr. Norman got this indictment. Balducci said he went to Zach and said Lackey wanted another $10K to compel arbitration. "How did he respond?" Norman asked him. Balducci said, "It was not a problem." That is what sealed Zach Scruggs' fate with the grand jjry.
Biggers:Did they already know it was false?
Robertson: Several weeks prior, they had the tape, they had a transcript. He had knowledge. And what about this "sweet potatoes" issue?
Biggers:Who knew that Balducci testified falsely?
Robertson: Undisputed at this point. No question it was false. It's clear Zach never said anything about $10K or "not a problem." It's on Norman to give the grand jury good information. Why didn't he take a transcript or the tape? He relied on a captive witness, literally scared for his own future. And he didn't remediate that false statement. And there's the misrepresentation about Lagnston: On the morning of 2/21/08, Norman was standing right here. You heard no evidence about the Wilson case. You were relying on Norman. He was talking the "other bad acts" evidence per DeLaughter, but he was talking about Richard Scruggs. He included Zach kind of as an afterthought.
Robertson: Norman said Dickie Scruggs wanted to shave the law. To get Balducci and Langston involved. Pay $1 millon to Peters. He's talking about Richard Scruggs. Norman realizes he's left out Zach, so he brings the whole thing down on Zach. Says Langston's testimony would be brief but that it woudl implicated Zach, that he's fully aware of the Wilson affair. But Balducci told us Zach was not involved with Wilson. He was a prime player but we never heard tht from the government until after Zach served his time.
Biggers: How did you find out?
Robertson: From the Bar complaint against Farese. Langston's affidavit, also Judge Sanders, Tony Farese. Langston says he exonerates Zach, every time Norman asked him.
* * *
Biggers: That's a very important don't, when they knew it, don't you agree? I'll be interested in hearing that.
Robertson: Norman says it's a misunderstanding, a misinterpretation. An interesting theory, except for the Langston and Sanders statements. That's quite a misunderstanding - how exculpate becomes implicate. Norman says that Zach knew Peters was hired, therefore Zach knew about a felony scheme. His misrepresentatio was to you - you relied on it. When Norman filed the 404B brief (previous bad acts), the Langston testiony did not exist. This threat of 75 years in priso made Zach plead to earwigging.
Biggers:I set a hearing on the motion to reconsider the 404b information from Langston. I never got to hear it. I assumed Langsotn would testify. I wasn't going to take Mr Norman's word.
Robertson: The evidentiary record had not changed. We don't know what pressure was on Langston at the time.
Biggers: Did you ever think for the motion to reconsider, that you had the right to call Mr. Langston?
Robertson: Your honor, we were under the impresison that you were done hearing evidence. Somebody said the train's leaving the station. We were under severe pressure to resolve everything at this point. We had no indicate to put Langsotn on the stand. WE believed the government's representatio to what he would testify - like you did. This is sort of an unfortunate chain of events. Now there ar real doubts about whether a man's liberty was deprived. That's why this disqualifaciotn rule is in effect. The chain of events compels disqualifaciton.
(10 minute recess)
Norman: By my saying I appreciate the seriouness of the allegations, if this court decides I intentionally mis represented to this court in order to send an innocent man to prison, I could be sanctioned, disbarred. We've been told to expect these kind of attacks. I accept that. As for Balducci's grand jury testimony, at oe point, Balducci misspoke. He said Backstrom and Zach were told Lackey needed another $10K and they said "no problem. Dawson and I realized that this was not directed at Zach or Bachstrom but at Dickie Scruggs. So, I said to Balducci, what about "sweet potatoes," anto correct the record in my view. Dawson is available to testify about that.
(This is one place where things got interesting. "Sweet Potatoes" were referred to by Balducci when he talked with Zach and Backstrom on 11/1/07. It's not clear they even knew what he was talking about. The term also is used by Judge Lackey as a code word for the arbitration motion. It's contested that the grand jury did not understand what "sweet potatoes" meant.)
Biggers; But the issue is that he said these things about Zach and Backstrom.
Norman: It's referred to earlier in the tapes. Talking about the new order, BAlducci says "everything's going to be OK." He said the judge felt exposed but it would be OK. He said he discussed money with them, about sweetpotatoes. Then Zach was present, looking him in the eye and knew what he was talking about. But the exact language referred to Dickie Scruggs, not Backsrom or Zach.
Norman: On the second matter, on Feb. 20-21, 2008, the cour heard a number of motions. Langston was ready to testify that Dickie Scruggs involved himself in another judicial bribery proceeding, DeLaughter. WE felt the 404B was on point and admissable to show the state of mind of Dickie Scruggs hen he went to trial. To show the scheme was no mistake. It was powerful evidence. But the remanining question was what culd the court say to the jury about Zach and Sid, to caution the jury? We hae witnesses - Langston, Dawson, Farese on the way.
Biggers: Give me a proffer, what do you expect them to say?
(MORE ON BLOG #2, THIS IS GETTING LONG)... PATSY
OXFORD - 2:20 p.m.
Norman: Mr. Langston's attorney, Tony Farese, may be a witness. But Mr. Langston asks that he be allowed to remain in the courtroom.
Biggers: That's fine.
Prosecutor Clay Dabbs: You're been questioned many times. What were you asked to do?
Langston: To gibe truthful testimony. (Says his interviews focused mainly on Wilson v Scruggs and Ed Peters)
Dabbs: On Feb. 21, 2008, you were in this courtroom, do you remember?
Langston: Yes, I do. I did not testify.
Dabbs: Before the hearing, do you remember a conversation with Norman about Zach Scruggs?
Langston: I did. It was brief. I was in the witness room by myself. Norman came in a hurry and asked me, Did Zach know?" I said Yes. (Thought he meant did Zach know if we hired Ed Peters.) In egvery other statement, I took great pains to exonerate him, that he knew nothing about any criminality.
Dabbs: Were you aware of Norman's comments to the court later that day? That Zach was fully aware of Wilson?
Langston: I hae been made aware of them. "Fully aware" is not what i intended to communicate to him.
Dabbs: It was a miscomunication with Norman?
Mike Moore: A miscommunication, you say? You were the government;'s chief witness in the Wilson case.
Langsotn: They had two others. I don't think I was the chief witness.
Moore: You were interviewed by the FBI. Did they create 302 forms from those interviews? How many ties?
Langston: Several. (Said he didn't see them) with FBI AGent John Quaka.
Moore: Your honor, again we renew our requests for those 302s. Mr. Langston, did youe ver tell the FBI that Zach was criminally involved with Wilson?
Langston: Quite the oppositel. I tole him he was not aware of any improper conduct. I always said that.
Moore: The 302 exculpate him?
Langston: Yes. Mr. Farese was adamant to be specific because of conflict issues. (He says he spoke with numerous people about Zach's lack of involvement.)
Moore: Why would Norman miscommunicate abut Zach?
Langston: I don't know what was in Mr Norman's mind. From myu end, I thought he was asking about hiring Peters. (Langston said he wrote about this in an affidavit to the Bar. He also said Farese never spoke to him about any information gained from his brief representation of Zach.)
Moore: Even after you read Zach's e-mail to Jones?
Langston: I still don't believe Zach was involved. I was lead counsel in Wilson. I was in a position to know who was involved. (Never told FBI, others that Zach knew Peter was paid $50K, or later rest of $1 million.) Never. (Or that a federal judgeship was dangled over DeLaughter's head?) I never told him that.
Moore: Are you aware that on 2/21 your attorney or anyone else tried to straighten out the untruthfulness about Zach?
Langsotn: I know Tony approached someone during the break that the statement was incorrect.
Moore: But a month later, what did the goernment say in response to the motion to reconsider the 404B evidence?
Langston: No substantial change to require the court's re-evaluation fo evidence against Zach Scruggs.
2:42 - Norman calls Tony Farese.
Farese: Says he told Norman "fully aware" by Zach was incorrect.
Norman: And I kind of blew you off, said we'll get to it later? Were you satisfied from the pleadings that they had accurate information about what the government would say?
Farese: Yes. I talked to Mr. Moore twice, and he asked it I stood with what I said on 1/7/08 about Zach not being a trget or a suspect in Wilson. Joey still said Zach was unaware of Wilson.
Norman: Did it need any more clarification?
Farese: No, I did not.
Norman gets Farese to say that 404B evidence is powerful and doesn't require a criminal ct to be used.
CRobertson: (Asked about call to Moore)(
Farese: I have never been an agent of the government and wasn't when I was speking with Mr. Moore. He called me.
2:52 - no more witnesses, Dabbs says.
Biggers: The court will consdier this matter, as well as the motion for summary judgement. I will give you my ruling in writing within 48 hours.
(Biggers then talked about petitioner's request to have Dickie Scruggs brought to Oxford to testify March 23. Judge said he will need a statement from Dickie Scruggs that he is willing to testify and will not take the 5th, when he gets here. The marshals say it willtake 30 days to get him here, unless they want to pay for marshals to escort him here by car.)
CRobertson: Says will get judge information as soon possible. Want to discuss with Dickie Scruggs.
They consider whether a deposition is preferable. CRobertson says will know in 24 hours.
Chris Robertson: We renew our request for more exculpatory material.
Biggers: Wherea re the 302s?
Norman: DAbbs has them. WE will provide.
(Biggers also sounds like after the 2010 Supreme Court's ruling on Skilling, and other decisions, the original charges against Zach SCruggs would not be "viable" on Counts 2-3-4, and part of Count 1.)
Norman did not accept the judge's ideas and said the "oly issue is whether the defendant can demonstrate factual innocence" for the May 23 hearing.
(The lawyers quibbled back and forth.)
3:06 - Biggers says hearing is adjourned.
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.
(MORE IN A MINUTE)
Today (Friday), Zach Scruggs' attorneys asked U.S. District Judge Neal Biggers to decide directly, without a hearing, to vacate Scruggs' 2008 conviction and sentence.
Read details in Saturday's Daily Journal.
If you want to read the motion - which has a lot more than what I wrote about - check the attached document here.