Let’s return for a moment to last week and the plea agreements of Dickie Scruggs and Sid Backstrom. We can surmise from the fact that Scruggs and Backstrom made plea agreements that Zach Scruggs also discussed a plea agreement.
My working hypothesis was that one strong motivation for Dickie Scruggs to make a deal was to help get Zach out of this mess. This was based not just on common sense but information I received about family pressures Scruggs was receiving. Since then, I have also gotten quite a lot of information about what might have happened that led to no deal for Zach, and not all of this information is entirely consistent, or more accurately, it is consistent to a point but it is missing unanimity on the one key thing — exactly why the deal fell apart.
I believe that something close to what the Clarion-Ledger reported last Friday and then yanked from its website was being discussed — Zach would walk but surrender his law license. (It would be helpful if the CL would explain why the information was yanked — because the source or sources turned out not to be credible, because the deal was only conceptual on one party’s part and was not actually a serious possibility, or because the deal was set up and then fell apart because of some reason we don’t know for sure).
It is also plausible, considering Zach’s apparently lesser involvement as alleged by prosecutors, to assume that in any deal, even if he did not escape prison entirely, his time would have been minimal, say one year at the most. Now, as I’ve mentioned, one sticking point could have been whether he would also walk on possible charges stemming from the Wilson case. Another could have been whether he would have to cooperate with prosecutors in the Lackey bribery case and in Wilson, the latter of which could set him at odds with his father’s interests.
Let us suppose, just to examine these assumptions, that it is true that Dickie Scruggs was interested in making a deal that would also benefit his son. Seeing as the deal fell apart, what other motives did Scruggs have to make the plea bargain he eventually did? In other words, why did he not do what many predicted he would, walk into court with Kenny Rogers’ "The Gambler" blasting from his earphones? We know, from a motion the government filed at that time, that the defense saw the "taint team" evidence — the data pulled from the Scruggs Law Firm computer system — the day before the plea bargains.
Merely because one thing follows another does not mean the first caused the second. However, we also know, from review of court filings, that even without this taint team evidence, the government’s case was strong — the recordings showed Scruggs reviewing and editing Lackey’s draft order, Balducci would testify against him and the government would introduce evidence of his involvement in an alleged conspiracy to bribe Judge DeLaughter in the Wilson case. If the taint team evidence tended to solidify the government’s case — e-mails and the like that showed Scruggs’ knowledge and participation — he likely would have received advice from his attorneys that he stood a high likelihood of being convicted on most or all the six counts against him and spending the rest of his life in prison.
With the deal he received, however, he will be free in five years (in theory only, because we don’t know what will happen with the Wilson case). In any event, a 100 percent chance of five years is better than an 80 percent chance of 75 years. So he had motives of his own to settle, and he is not obligated under the agreement to cooperate with prosecutors.
A small item in the Wall Street Journal today by Ashby Jones says that even though Scruggs has pleaded guilty and could be called as a witness without Fifth Amendment problems, the government is unlikely to do so because of the risk of antagonizing the jury by having a father testify against his son. (Hat tip, Jane Genova). Not to mention, if you read the transcript of Dickie’s plea, you can see that he’s not going to give it up easy.
About whether the passing of the March 17 plea deadline is real, or if Zach can still get a plea agreement, readers, in comments and in e-mails, said that after the plea deadline any plea is an "open" plea, essentially one in which the judge makes no assurances of willingness to accept terms worked out with prosecutors. I looked up some federal case law and what I saw was in line with these statements — a judge has the authority to set such a deadline to assist with trial management and is not bound to accept any agreement after that, except for good cause. Normally, the mere fact that the deadline was missed is not good cause. A judge can make exceptions, of course, but generally it appears they do not.
In state courts, the law varies from state to state — I found this interesting case from Illinois explaining the two different views of courts on how set-in-stone the plea agreement deadline is. You might be interested.
Lastly, readers pointed out something I didn’t remember — two new members of Zach’s defense team, Chip Robertson and Mary Winter, are old hands with the Scruggs Circus. Their firm represents the Rigsby sisters in the False Claim Act "whistleblower" case against State Farm, and as one enterprising reader found out in doing research on my blog, Robertston and Winter are mentioned in one of the Kerri Rigsby depositions I’ve posted. See beginning on page 17. Also, here is the post in which I discussed other aspects of the deposition.
Kerri Rigsby met them, according to her testimony, back in early 2006 in a trailer along with Dickie Scruggs (the trailer may have been the one set up on former Sen. Lott’s property after Katrina in Pascagoula, but this is not clear from the transcript). Apparently, Cori Rigsby brought her laptop and accessed the State Farm claims documents with her laptop and State Farm password. These claims documents, the value of which appears to be some mixture of hype and hope, were used by Scruggs in a variety of sensationalism ways to drum up publicity and to use as leverage — the Rigsby sisters’ 20/20 interview, numerous uncritical press stories featuring Scruggs’ exaggerations, the False Claims Act case, several Katrina cases including McIntosh v. State Farm, grand jury investigations in conjunction with state and federal prosecutors, and of course, as a negotiating ploy in the settlement of the 640 Katrina cases against State Farm. This last item, of course, led indirectly to two prosecutions of Scruggs — the first stemming from his game of keepaway with the help of AG Jim Hood with the documents in defiance of Judge Acker’s order, the second as a result of the conspiracy to bribe Judge Lackey in the Jones v. Scruggs fee dispute that arose out of the settlement.
When you see it written down that way, you can see how one thing led to another and brought us to where we are now. So it’s only fitting that Robertson and Winter, who were there at or near the beginning, should be there at the end.
I’ve mentioned it before, and I’ll mention it again. This long list of events culminating in Scruggs’ plunge makes me think of Gray’s Elegy Written in a Country Church-Yard.
The boast of heraldry, the pomp of power,
And all that beauty, all that wealth e’er gave,
Awaits alike th’ inevitable hour:-
The paths of glory lead but to the grave.