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Somewhere in comments I noticed someone remark that I’d not posted the May 29th transcript (I think what I did was link something else in the discussion of that, but anyhow…) Well, here is that Elusive May 29th Transcript.

You folks owe me a drink or something, right?

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Keker’s team has something to celebrate today– the appointed judge in the contempt case has just granted Keker’s motion to dismiss it! Odd, as I was sitting here trying to think through and understand the case a bit today. Anyhow, a regular reader of this site sent me the order, which Rossmiller had already posted. Here is the Order dismissing the contempt case. More about it later.

UPDATE:

The dismissal is for two reasons: Scruggs was not subject to the injunction and not within the court’s jurisdiction. The court noted that “there is a cloud of impropriety surrounding what Scruggs did and the nature of his eleventh hour arrangement with Hood. It is certainly understandable that Judge Acker would attempt to hold him accountable. Perhaps there are ethical issues that should be examined. But, the question is not whether Scruggs acted ethically; the question is whether he can be criminally responsible in a contempt proceeding.”

Courts only have the power to enjoin parties who are actually before the court. Scruggs was neither party nor attorney in the case in which the judge entered the injunction. If one cannot be bound by an injunction, “it naturally follows that he cannot be held in contempt for violating that injunction.” He noted that the injunction expressly included the Rigsby sisters’ agents and those acting in concert with them. However, the opinion states, the court explicitly found that the Rigsbys had not acted improperly– they had given the documents up 5 months prior to the injunction. The law requires a guilty principal (the Rigsbys) before an aider and abetter (Scruggs) can be punished.

Alternatively, the court held that Scruggs did not violate the injunction because the law enforcement exception allowed him to turn the documents over to Hood if Hood requested them. The court noted that “there is a cloud of suspicion surrounding the agreement between Scruggs and Hood.” The court expressed doubt about Scruggs’s explanation that the documents would be given to State Farm, and that Scruggs did not take his concerns to Acker. The timing of the ultimate surrender of the documents is also suspicious, as is Hood’s letter to U.S. Attorney Martin. Nevertheless, Scruggs sufficiently fell within the “law enforcement” exception that what he did was not criminal contempt.

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A reader has sent this excerpt from the Mississippi Bar’s Rules of Professional Conduct, along with a couple of questions:

RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
[Amended June 23, 1994.]
Comment
Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct. The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship.
[Amended June 23, 1994.]

Okay, now for the reader’s questions:

1. Could Jim Hood be brought up on this one in that he didn’t report Balducci and Patterson’s “inappropriate comments”?

2. Does this Rule mean that now every lawyer with a Mississippi Bar license has the duty to file a complaint against Hood?

Discuss.

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Hat-tip to Alan Lange for this story from Columbus’s Commercial-Dispatch:

House OKs harsher penalty for judge bribes

JACKSON – The Mississippi House on Tuesday adopted a proposal by Rep. Gary Chism of Columbus to impose stiffer penalties for bribing judges.

The House of Representatives took up the bill to make bribing a judge a violation of the state’s obstruction-of-justice law.

Chism got the House to adopt an amendment increasing the bill’s original penalty. It goes up to five-to-20 years in prison and a fine of at least $25,000 or three times the amount of the bribe.

The bill had said the punishment should be not more than five years in jail and a $5,000 fine. …

"I think somebody who bribes a judge,” Republican Chism allows, “should get something more severe than that, " while House Judiciary "A " Committee Chairman Ed Blackmon, D-Canton, noting that the bill was inspired by Mississippi’s current judicial scandals, puts in, "This certainly sends the message: if you want to bribe a judge, you’re in big trouble if you get caught. "

With the measure headed to Senate consideration, any predictions on how it fares there (or when either house might get serious about fining Sunshine-law-breakers more than $100 a pop)?

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You don’t have to be from Loose-iana to recognize the name Charles Foti. All you have to do is remember watching and reading about the aftermath of Katrina.

Foti was the state attorney general not only much in view in the battles of families to get their loved ones’ remains identified and released for burial by overwhelmed government coroners, he also prosecuted the owners of that nursing home south of New Orleans where the 30-odd old people drowned in their beds, and he investigated a doctor and two nurses in nine patient-deaths at NOLA’s ghastly post-Katrina Charity Hospital Memorial Medical Center. Well, Foti couldn’t win conviction one in either of those cases but did recently manage to get himself re-elected Lawyer.

Now his successor, new Louisiana Attorney General James “Buddy” Caldwell, invoking the state dawg* to an AP reporter, says, “There has been documented curious official behavior on the part of the previous AG’s office that has not gone unnoticed. It’s not going to take a Catahoula Cur to find the trail.”

Seems that Foti tried his own hand at some Jim Hood-like moves on his way out of office, teaming up with law firms who were his campaign donors to file a pair of multimillion-dollar antitrust suits, and arguably-illegally contracting with some of the same lawyer-donors to represent the state in a suit involving Louisiana’s “The Road Home” rebuilding program.

Anyhow, Caldwell says he’s reviewing the suits and contracts filed in Foti’s last few days in office this January and hasn’t decided how many of them he’ll keep; nor will he name the specific cases of interest at this point. But . . .

On Jan. 14 – his last day in the attorney general’s office – Foti joined several private lawyers in suing the world’s largest biotechnology company [Amgen] over an alleged pricing scheme.

Foti also collaborated with the same attorneys in November to sue several insurance companies for allegedly fixing prices and defrauding policyholders after Hurricane Katrina.

Four firms working on one or both of those cases donated a combined $13,500 to Foti’s failed re-election campaign last year, according to campaign finance records.

Foti, who joined a New Orleans law firm [class-action specialists Kahn Gauthier Swick] after leaving office, didn’t return several calls for comment. Caldwell declined to elaborate on the statement issued through spokeswoman Tammi Herring.

Herring said private lawyers are working on the two antitrust cases under “no-fee” arrangements and will not be billing Caldwell’s office. She said she can’t comment on how the lawyers could be compensated for their work.

It’s not unusual for private lawyers to represent the state without billing hourly rates or reaching an agreement on contingency fees, said Dane Ciolino, a law professor at Loyola University in New Orleans.

“It’s essentially the attorney general giving them a fishing license and they don’t know what size fish they’re going to catch,” said Ciolino, who teaches a course in legal ethics.

Herring said Caldwell’s office is crafting its own policies on the use of private lawyers.

(more…)

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See for yourselves.

Twelve Thursdays ago the Mississippi Bar recommended J. Keith Shelton’s immediate reinstatement. But your Supreme Court just can’t seem to get its mind around that.

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Aha, South Mississippi heard from: the Picayune Item yesterday ran a most interesting AP story that I haven’t seen elsewhere, in which Eaton Corporation’s attorney in Eaton v. Frisby declares that though the company agrees that all orders filed in the case since Ed Peters got involved should be reviewed, Eaton hasn’t done anything wrong.

"Eaton is not responsible for what Ed Peters did, and unless you can show intent, you can’t sit here and say Eaton did this and Eaton did that, " Wallace told the judge. "There’s no evidence that ties Eaton to misconduct. "

The story relates Hinds County Circuit Judge Swan Yerger’s decision that either he or a special master will review everything that’s gone down in Eaton v. Frisby, now that Ed Peters’ possible influence on its originally-assigned judge, Bobby DeLaughter, has become an issue. “Yerger said he will decide whether Peters is allowed to stay a part of the case.”

Frisby attorney Alan Perry, arguing that nothing new should happen in the lawsuit until the Peters issues are settled, is quoted saying, "Things started going [Eaton's] way after Ed Peters got involved. " To illustrate the point, the AP recounts a couple of interrelated stories you’ll recall:

On Oct. 29, 2007, DeLaughter removed Oxford lawyer Jack Dunbar as special master to hear evidence and make a recommendation to DeLaughter in the lawsuit. Four days earlier, Peters contacted Larry Latham about serving as a special master in the case.

"Ed Peters could have only known (Dunbar was going to be removed) if improper conduct occurred, " Perry said.

Latham has removed himself from the case, citing the contact from Peters. Latham said in court papers that the conversation with Peters was brief.

"The important part of the conversation is this: Mr. Peters informed me that I was being considered for appointment as a special master in this case, (and) would I be interested if I were selected, " Latham said.

Latham said he asked Peters if he was going to be in the case. "I have not yet entered my appearance, " he said Peters replied.

"If I’m chosen and have no conflict, I look forward to working with you, " Latham said he told Peters.

Latham said he had no further contact with Peters until Nov. 8, when Peters left a message with Latham’s assistant: "Don’t bring up my name. "

Latham said in court papers that he was unaware Dunbar was serving as special master when he was being considered.

Well, I hate ever to speak of foregone conclusions in the Mississippi justice court system, but if Ed Peters can’t reasonably be bounced from Eaton v. Frisby by now . . .

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I was just reading Alyssa Shnugg’s roundup of all Team Scruggs’s setbacks in the motions rulings, and this graf brought up an old question:

The defense argued that the affidavits submitted by the government to gain the wiretaps and search warrants "omit several specific facts known to the government which show that no such conspiracy existed and that, in fact, it was the government that created the alleged crime. " Also omitted, the defense says, were recorded audio comments they say defeat the government’s claim of conspiracy.

Here’s my question: Where do seasoned practitioners draw the line between the “zealous advocacy” that every attorney is honor-bound to provide and the “misrepresentation to the court” that no lawyer should ever risk? How do you know when you’re getting too close to that line for comfort?

This issue has fascinated me for years, and I’d be happy to have your thoughts on it, whether as to general principles or as they specifically apply to this argument of Keker’s . . .

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Jackson Jambalaya blogger Kingfish blogs asking for folks who support open public records to call their state senator and Phil Bryant in support of a bill that has passed the house and is now before the Senate. I’ll let him tell the story because he’s better informed:

Ok folks, time to get off your gluteus maximi and contact the offices of Phil Bryant and some state senators. House bill #474 passed the House and its companion Senate bill #2728 is on the Senate calendar today. The main problem is that this is the last day for the Senate to vote on this bill as it is the last day to vote on bills in the houe of origination from what I understand and it rank s 71st on the list.

These bills will open the initial police incident reports to the public. The bill got through the House after a compromise was reached between law enforcement and media representatives. It will allow you to have better access to information about crime in your area. It will allow people who are the victims of false rumors to clear their names. It will also help victims and their families who too often are given a cold shoulder by the police when they try to get information on how a crime is investigated.

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Update below

The FBI memo with Balducci’s story of taking a message to Hood has sure flushed Jim Hood out of cover. This morning, Mississippi public radio ran a story about the meeting. The story began by describing the FBI Memo. It then played tape of an interview with Jim Hood: "Nobody was going to influence me in this case. My enemies and my friends agree that I am as hard headed as it gets. " He admited having dinner with them. Says he does not recall any threat, and "remember[s] them saying he [that would be Scruggs], presumably was upset. " Hood said he was not going to let them be part of the negotiation. He implied that he "ran them out of his office " but then mentions having dinner with them. Does that mean there were two meetings?

Update:

At 8:35 on Mississippi edition (which will be online later), five minutes of interview with Hood was played. Asked about Scruggs, Hood said, "I know him from cases we have worked on together. I think he did a great service to the state in his " suit in the tobacco cases. "He helped a lot of people on the coast in the insurance litigation. These crimes of which he is accused were certainly a surprise to me. " He said he was going to describe difference between what Scruggs was doing in the indivudal cases and says "State Farm was trying to get me to " stop the criminal case to get a settlement on the civil case. Hood was determined to put the case before the grand jury. Hood was emailed by the prosecutors on Friday night after three days of testimony before the grand jury and they said they had a problem with proof. That’s when the decision was made not to indict State Farm.

If Mike Moore could not talk him into signing on for the civil settlement, no one else could, "especially someone who was a public defender I tried cases against. " (I’m tyring to remember if there really was a time Hood was DA and Balducci public defender; I can’t remember whether Hood was DA more than one term, 1996-2000. Balducci was public defender to about 1996 I think). Hood noted Judge Lackey was in his district.

Hood turned to the FBI memo, and said that if you look at the statement the FBI writes down, what is unsaid is more important than what was said. There is no statement that money was offered to Hood, which you know would have been in the statement if it had been. Repeated the public defender remark: "Tim Balducci was a public defender up there, knew I was a hard-nosed prosecutor, knew if they’d offered me money they would have been indicted. "

He was asked if he was threatened with opposition supported by Scruggs if he didn’t help. "I did not know Patterson and Balducci were working for Mr. Scruggs. They were kind of sending messages back and forth. I would not let them come into meetings. " He said he would not meet with State Farm’s people in Jackson, that their chief lawyer from State Farm met with Hood in Memphis. "There was a period of 2-3 weeks or a month " he did not meet let the Scruggs people in meetings. Asked again if there was a threat, Hood said, "I don’t recall any kind of threat. I remember them conveying Scruggs was upset. I did not take it as a threat. "

Asked about money in politics, he said he "did not ask Scruggs to give any money to any associations or steer any money. He did that of his own volition.”

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