UPDATED BELOW
I think we can expect David Rossmiller to post again shortly, since I hear that an order in U.S. v. Scruggs authorizing the release of affidavits related to wiretaps has just hit PACER. I don’t have access to that system, but Rossmiller does and is usually prompt to share what it provides.
As soon as he does, I’ll let you know.
lotus
UPDATE: Good ol’ David! Here’s the order (2-page pdf), signed by Judge Biggers yesterday, allowing the defense teams to discover affidavits used to get warrants to intercept wire communications and to receive CDs of the intercepted communications themselves. This seems to refer only to wires across lines (phone calls, emails, faxes), rather than anything picked up by body mikes — which apparently weren’t used in this case.
Except for release to the defense attorneys, the records “shall remain sealed until further order of the Court,” Judge Biggers wrote . . . leaving me to echo Rossmiller’s “Those who know more about criminal procedure than I do may be able to tell me further about the significance of the order.”
O/T but of interest to you Mississippians, especially, this item from WSJ’s Law Blog:
R.I.P.
the order recites that there were search warrants (which we knew) and “orders authorizing the interception of wire communications and a disc containing intercepted communications”.
You fast, NMC — thank you!
What the order means is that there were wiretaps, which is the big news. It also appears to say there was more than one wiretap by the plural. I do think it very much muddies the water as to when Balducci flipped– his phone conversations were probably being monitored beforehand. Accepting the facts as alleged in the indictment, I’ve been guessing that he flipped just before he went back to Scruggs for that extra $10,000
The order raises some other questions in my mind. Did they get a wiretap on Balducci as soon as they had him making the bribe offer on tape (when they’d clearly have probable cause) or from the git-go (probable cause based on Lackey as reliable informant)? And then when Balducci flipped and somehow proved himself a reliable informant did they then move on to wiretap Scruggs et al? All speculation.
Okay, let’s haul out ye olde indictment (pdf) and check our memories again:
Uh-huh, Overt Act 22 reflects a November 1, 2007, Balducci “discussion” with Dickie (no word whether face-to-face or on the phone) in which the latter agrees to “take care of” another $10,000 payment to Judge Lackey, and “said he would ‘hire’ Balducci to prepare jury instructions in an unrelated case to cover the $10,000 extra to be paid to the judge.”
Now here’s something I hadn’t caught until just now: Overt Act 21 (Balducci’s “We paid for this order …” statement to Zach and Backstrom) is introduced with the customary “On or about [date]” (in this instance, also November 1).
But between OA 22 and OA 24, the “or about” phrase goes away, leaving the definite “On [such-and-so date].” Then OA 25 again says, “On or about November 13, 2007, [Backstrom and Balducci talk on the phone about] the bribery scheme … .”
Whether this adverbial phenomenon suggests anything other than a spot of careless drafting, I’ll leave to others’ speculation; I just find it interesting enough to mention.
NMC, on your basis-of-probable-cause thought: isn’t “Judge Henry Lackey” about as reliable an informant as the FBI could ever dream of?
I mean, though it still bothers me that he blabbed to the WSJ at first opportunity, he seems to have recovered his composure (and probity) since then. And I’d take the sworn word of ‘most any judge over the sworn word of ‘most any bishop every day of the week.
But that’s just me.
I think Judge Lackey just wanted to make sure that people without any knowledge in criminal procedure, didn’t mistakenly think he was an unindicted co-conspirator in the case. I have heard enough people speculating he might have been, even with his statemets to WSJ, to imagine it would have been even worse without him getting up and saying something to set the record straight.
Hi and welcome, observer.
Wouldn’t surprise me if your theory didn’t make it into the WSJ’s pitch to him to give them the interview. And though I’m sure the judge is deeply astute in Mississippi law, I doubt that he is/was in matters of handling sudden national publicity. (Even though he knew what was coming, he still may not have been ready for some of it.)