Scruggs of Oxford, who is serving time in an Alabama federal prison, filed legal papers Thursday, insisting to the U.S. District Court of Northern Mississippi that he was prosecuted wrongly in 2009 "for ethical infractions," not crimes, when he hired former Hinds District Attorney Ed Peters to influence Peters' friend, then-Circuit Judge Bobby DeLaughter, presiding over a legal-fees lawsuit against Scruggs.
Now, Scruggs says that this action was an "exercise of political influence," which is constitutionally protected speech and not a crime.
"Although this behavior was unethical," his motion states about the attempt to influence, it is not a bribe because the illegal Peters-DeLaughter conversations based on a long friendship lacked a "quid pro quo," which is one favor for another.
Scruggs, 65, pleaded guilty twice about attempts to improperly influence judges presiding over lawsuits against him and others.
The new motion to vacate deals only with the DeLaughter case, not the one directed at then-Circuit Judge Henry Lackey of Calhoun City. It also shows Scruggs is in a Montgomery, Ala., facility after initially serving time in Ashland, Ky.
The appeal comes just under the wire for a one-year deadline from the June 24, 2010, U.S. Supreme Court decision Scruggs bases his appeal on.
Scruggs-watchers should have expected some development after Wednesday's legal team additions - former state Attorney Gen. Mike Moore, his Flowood partner David Martin and Michael Rader, all members of Zach Scruggs' appeal team.
In 2007, Peters told DeLaughter that Scruggs would ask his brother-in-law, then-U.S. Sen. Trent Lott, to suggest DeLaughter for a federal judgeship, if the circuit judge looked favorably on some rulings Scruggs wanted.
"No case holds that an agreement to recommend someone for a political appointment constitutes a bribe," the motion notes.
Scruggs was one of the country's most famous plaintiffs' lawyers in 2007 when he and four others were indicted on federal charges that they attempted to bribe Lackey to order arbitration in another legal-fees lawsuit. Eventually, everybody pleaded guilty and went to prison.
The Lackey and DeLaughter cases shocked the public and shook the Mississippi legal community when arrests began in late November 2007.
Scruggs' son, Zach, awaits a ruling by Senior U.S. District Judge Neal Biggers on his own motion to vacate his conviction and guilty plea to knowing about but not reporting a colleague's illegal conversation with Lackey.
Senior Judge Glenn H. Davidson presided over the DeLaughter case and now this motion.
In both cases, the law demands they prove "actual innocence" on the original indictment charges.
Scruggs' 2009 guilty plea in the DeLaughter case added some two years to his 60 months sentence in the Lackey case.
But he says now that 2010 appeals-court decisions in two other cases put his situation in a completely new light, requiring his DeLaughter conviction to be thrown out.
He is not challenging the outcome of the Lackey case.
DeLaughter could not use similar legal arguments because he pleaded guilty to lying to the FBI about his conversations with Peters, not bribery. Last April, federal authorities released him from an 18-month prison term. He insists he never accepted a bribe.
Scruggs' new motion insists that neither hiring Peters to persuade the judge nor the Lott recommendation constitutes bribery and was not an "honest services violation," in light of the new decisions.
The federal "honest services" statute says it is illegal to deprive the public of the honest services of an official, like a judge. Prosecutors often used it when they wanted to bolster related charges, but in 2010 the U.S. Supreme Court significantly narrowed "honest services" only to bribery and kickbacks in the case Skilling v. U.S.
Denies 'value' to judge
Although Scruggs admits he agreed to pay Peters up to $2.5 million for his help, "no money was intended for Judge DeLaughter, and none was given or offered to him."
His petition also repeatedly states the he did not know Peters personally and "never personally dealt" with Peters or DeLaughter.
About Lott's contact, termed a "courtesy call," to DeLaughter about the judgeship, the document says Lott "advised the judge that his 'no-good brother-in-law' had 'recommended' him for 'consideration," in that way telling the judge Scruggs endorsed him.
Ultimately, other people secured the two federal bench openings in the region.
"Here, Bobby DeLaughter received nothing of value," Scruggs insists.
Scruggs' new motion strongly references two decisions - Skilling and Whitfield v. U.S. by the Fifth Circuit Court of Appeals.
In Whitfield, the court held that state judges acting in their judicial capacities are not "agents" of the federal government, which is a key element in federal bribery prosecutions.
A few weeks ago, Biggers agreed that Lackey was not a federal agent and dismissed multiple counts in Zach Scruggs's original indictment.
If Dickie' Scruggs conviction and sentence were set aside, he continues the 60-month Lackey sentence and would be due for release by fall 2013.
His current release date is Feb. 20, 2015.
A similar argument isn't likely for his Lackey sentence, court observers say, because co-defendant Timothy Balducci actually gave the judge, acting undercover, payments totaling $40,000, which Scruggs reimbursed him for through other legal work.
Last August, Zach Scruggs also asked the federal court to throw out the conviction and sentence for his guilty plea to not reporting that he knew Balducci planned an illegal conversation with Lackey about the lawsuit Jones v. Scruggs.
In addition to the Lackey defendants, former Booneville attorney Joey Langston is the only other person to serve prison time in the DeLaughter case. He is serving out his sentence on house arrest, thanks to his extensive cooperation with prosecutors in both cases.
Peters was granted immunity from prosecution for his cooperation.
Contact Patsy R. Brumfield at (662) 678-1596 or firstname.lastname@example.org.