Scruggs Nation, Day 31 (Part II)

There are lots of developments that need updating, so I am putting up this second post today to accommodate them all. 

— Mississippi State Auditor Phil Bryant, on December 20, filed a lawsuit in Hinds County against the Langston Law Firm, Joey Langston and Tim Balducci seeking a return of some $18 million in funds recovered from the MCI tax litigation.  A copy of the complaint can be seen by clicking here.

In the complaint, Bryant alleged that $118 million was recovered in a settlement of that litigation, but that $4 million was illegally donated to an organization called the Children’s Justice Center of Mississippi, and $14 million was illegally paid to Langston and Balducci as attorney fees. 

— In a development I did not note until I saw it mentioned in this Anita Lee story in the Sun Herald, Magistrate Judge S. Allan Alexander earlier this month quashed a subpoena by E.A. Renfroe issued in the Renfroe v. Rigsby case in Alabama for the depositions of Dickie Scruggs and others from the Scruggs Law Firm.  Judge Alexander is a magistrate in the Northern District of Mississippi, where Dickie Scruggs and his son, Zach, are facing federal charges relating to an alleged attempt to bribe Judge Henry Lackey.  

Here is a copy of the Scruggs motion to quash and the memorandum in support. 

Here is a copy of Judge Alexander’s order.

Here is a copy of Renfroe’s motion for de novo review of her order.

If you look at the case number on the top of these documents and the caption, you can see this decision is in the Northern District of Mississippi, not in the Northern District of Alabama, where the Renfroe case is filed..  The reason is apparently that Renfroe moved to compel the depositions in the Northern District of Mississippi.  A special case number was assigned just for the Scruggs motion to quash — this is explained in the text of the motion — and I have not seen these documents posted on the Renfroe docket in Alabama.  Ironically, the Scruggs motion to quash was filed on the same day Dickie and Zach Scruggs were indicted.

Also ironically, the Scruggs motion in the Renfroe case is very similar to one made just a few days ago in McIntosh v. State Farm, in the Southern District of Mississippi, to try to overturn Magistrate Judge Robert Walker’s order requiring Dickie and Zach Scruggs to sit for depositions by State Farm and Renfroe. Judge Alexander handed down her order quashing the Renfroe subpoenas on December 3, before Judge Walker ordered that the depositions of the Scruggses take place, and whether Walker was aware of Judge Alexander’s order I do not know, but it is not mentioned in the Walker order. 

Renfroe is seeking review of Judge Alexander’s order, saying her ruling is based only on the Scruggs supporting memorandum, with no opposition brief filed, and that she did not have all the facts.  Among these facts, Renfroe claims, are that Judge Alexander found Renfroe could just as easily obtain the desired information from the Rigsby sisters themselves, but Renfroe has already deposed them and says they gave evasive answers, had an inability to remember and asserted privilege to avoid questions.

— I have had requests to follow up on something in State Farm’s recent motion to disqualify the Katrina Litigation Group (formerly known as the Scruggs Katrina Group) from Katrina cases.  I wrote about the motion in this post, which contains copies of some of the relevant pleadings. The requests for more information relate to something in the supporting legal memorandum — references to supposedly abusive exercise of the subpoena power by the SKG and one of its attorneys, leading to admonishment by courts for these practices.  The memorandum in support of the motion to disqualify did not go into great detail, but referred back to another pleading, a memorandum in opposition to an amended complaint in the Shows v. State Farm case, and exhibits attached to the memo.  Below is that opposition brief and the exhibits, so you can read and judge for yourself.

Memorandum in opposition to amended complaint.

Exhibit 1.

Ex. 2.

Ex. 3.

Ex. 4.

Ex. 5.

Ex. 6.

 — Lastly, the defendants in the bribery case have filed a motion to compel the government to produce additional evidence.  Click here to read it.  The motion reveals that the government  produced additional discovery on the day after Christmas, including 13 cassette tapes containing recorded conversations between Balducci and Judge Lackey, two FBI interview reports, telephone records, a compact disc with a pen register and trap and trace data, and 13 CDs containing photographic evidence and audio and video recordings of meetings between Balducci and Judge Lackey. 

The motion says the government has not produced transcripts of the recordings yet, and many of the recordings are hard to understand.  Whether this is wishful thinking, spin or fact remains to be seen. The government also has not yet produced, according to the motion, the affidavit of a special agent in support of a September 25, 2007 application for a wiretap on Balducci’s phone, nor any of the materials seized during the November 27 raid of the Scruggs Law Firm offices or the December 10 raid of Joey Langston’s offices.  I haven’t heard what, if any, discovery the defense has produced to the government.

11 Comments

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11 Responses to Scruggs Nation, Day 31 (Part II)

  1. iwannaknow

    while renfroe’s objection to magistrate alexander’s order raises some points that may well deserve consideration, how wise is it to refer to a federal magistate’s order as “inherently suspect” (objection at par. 2) or refering to Magistrate Alexander’s order as “his ruling” (objection at par. 6) when it should in fact say “her ruling”. i suspect these lawyers have not practiced before judge alexander in the past, and dont plan on doing so in the future.
    and the objection asks for a de novo review when the standard under fed r civ p 72 for review of non-dispositive orders is “clearly erroneous or is contrary to law” (http://www.law.cornell.edu/rules/frcp/Rule72.htm)
    if judge alexander failed to consider the prior motion to compel, it seems the smarter course would have been to bring this to the attention of judge alexander. apparently the motion to compel as the prior docket number is still technically unresolved, though effectively moot.
    easy to be a saturday night quarterback.
    on another note, it would be interesting to see the deposition exhibits referenced in the objection (but not attached in the document linked)

  2. iwannaknow

    its definitely worth reading the motion of the defendants in the criminal case to compel discovery. a lot of information on what the government has and has not produced – its too much to rehash and comment on.
    but its hard to imagine this case is going to trial in february with the amount of information the defendants are still seeking.

  3. Curly

    Looks like Scruggs is unable to slow down this locomotive like he has been able to do in the past. It’s rolling and building speed….

  4. m.williams

    I read the Defendant’s motion four times, and can’t imagine how a trial would be handled under the demands within the present time limit.
    With the essence of the discovery spread to cover every hole which could possibly be filled, it’s apparent to me that anything that is placed in or around the government is discoverable.
    In the case of mute particles of matter, I can only imagine the amount of time that is required to haul in the least sort of discoverable matter or catch the prosecution in failure when and if this finally gets a trail date.
    As the motion is what it is, and not vague at all, just about anything the prosecution could “discover” is inside the frame of the Denfendant lawyer’s right to know.
    I think this is extraordinary, but that is what the Defense expects – and as stated above, it’s hard to believe this trail will be in Febrary. Further, might it not also be more than a year or more?
    I guess that’s what makes expensive trial lawyers begin to fuel the obfusgation – but legally vigorous Defense. It is very interesting.
    Scruggs, now as Defendant, has a long history as a businessman and a visionary, which, come to think of it, is what goes on now. And if the Defense doesn’t get it’s way, there’s more of the same.
    It’s going to be a long time. Besides, the longer this goes, the more publicity, the more issues, the search for dramatics, questions in doubt for the jury pool, – is there no end? Promo’s for potential juries?
    That’s why microwave dried leather gloves shrink, and jurisdictions change, sideshows keep stepping into the Defendant’s strategy.
    It’s not just hard to imagine a triall in February. It’s imposssible to imagine.

  5. m.williams

    The motion to compel the government to produce information is especially interesting at page 11. Under the Rules of Edivence, Defendant calls for production of “any information regarding any prior or similar act…” Nice bite.
    And that promotes a wide scope of interesting matters, including one or two possibilities in Missippi Ex Rel vs Tobacco. If that’s not the most interesting Defense invitation, I don’t know what is.
    There is obviously a reason that Defendant wants to know if Scruggs has any quid pro quo’s that the prosecution has knowledge of, and if they do, there are a few examples that go back to 1994.
    If, in the question of discoverabe”prior similar acts,” the prosecution is being baited, (for their are mountains of potential evidence), is there something in the past that needs re-examining? Or is it worth the trouble of diversion? Is the investigation going to KISS/out off here, or just hope that Balducci can sail by, credibility in tow, on his light air wind-surfer? And hope for the best.
    I think this addition on page 11 is the most intriguing one, and it will be interesting to see how prosecution manages it. Remember that Scruggs wore the AG Star once. Moore’s management team was not just an entre’act to a Cirque de Soleil. It was the grande old big top.

  6. iwannaknow

    the request for prior similar acts, while undoubtedly potentially relevant to this case, also serves another purpose – to advise defendants (and, my bet, others currently under investigation) what the government has uncovered in its ongoing grand jury investigations of other possible uncharged crimes. wouldnt that be valuable knowledge for defendants and other uncharged parties to know?

  7. Injustice4all

    The reason you cant imagine a trial in february is that you are a Civil Litigator. (like me)Discovery is almost non- existant in crimnal cases in Mississippi. A good friend of mine tried almost a dozen capital murder cases a few years ago and didn’t have a three inch file in his office. No depos, no real discovery just douments and witness list. It is a different world.

  8. Tim

    Request for prior bad acts is a standard request so no surprise by that request although with the reference to “bodies being buried” its even more important in this case, both as a credibility attack on Balducci if there are no bodies buried and to know if the Gov’t is going to contend they did it before if the Defense says Balducci acting on his own and entrapped them.

  9. wes

    Tim:
    I believe Keker will use entrapment as a
    defense even though a “person” can’t
    entrap……but an extension of the gov’t
    can and that person is……..Balduccci.

  10. Tim

    Entrapment will be a possible defense, plus Balducci acted totally on his own, then when he got caught he’s trying to get others to prevent long prison term. If entrapment a defense then predisposition comes into play and the other “bodies” become important. Of course, the other “bodies” could be lies by Balducci to impress Judge which could aid defense.

  11. observer

    A lot of that motion for discovery is boilerplate, and setting up appeal issues, rather than requests the defense really expects to have honored.
    They are no doubt fishing on the prior acts because any good attorney would be exploring the possibility of an entrapment defense. But, it’s going to be hard to make work if the government has other acts of bribery they haven’t charged yet, that they can throw out on cross-examination and rebuttal (and that motion sure makes you think Keker is worried there may be some out there).
    The problem is that in a case like this, every defendant is going to have to be on board with it, and 100 per cent committed. And, that includes every defendant taking the stand and admitting he committed bribery and conspiracy before he can say he was entrapped (you don’t get to say you didn’t do what they charged you with, but if you did, you were entrapped). Entrapment is one of those defenses that sounds good to a layperson, but rarely works well in real life. And, in this case, wiretaps on Balducci and Patterson (?), prior to Balducci cooperating, are going to make things a little tougher. You can’t be entrapped by a co-conspirator before he is a cooperating government witness or informant (after he starts cooperating, that could be an issue).
    But, Keker will be earning his money if he can pull off a four defendant unified entrapment defense. Having to admit the facts charged in the crime is not an easy thing for one defendant to do, much less four defendants, and if one of them starts to back up on the stand, he can expect a gutting from the prosecutor.
    That’s the whole problem with a unified defense and four defendants- keeping everybody unified, no matter what happens at trial. Especially, if the other attorneys start seeing malpractice in their future when the various defendantss interests start to veer apart.