Rossmiller points this morning to an excellent post on the Fortune legal pad blog that crystallizes some of my thinking about the defense motion to dismiss for outrageous government misconduct. The post (found here) contains a very clear summary of the factual basis of the motion, which outlines what will probably be the Scruggs defense.
Most lawyers reading that pleading think it has echoes of an entrapment defense without coming out and saying it; I think this has come up in comments. I had not given too much thought to why they don’t come out and say it, other than it’s procedurally not going to quite work– entrapment is a defense (as in, put on after the government proves their case) and doesn’t stop the prosecution altogether the way their motion seeks to do. This morning, listening to a couple of law professors talking about the motion on Mississippi public radio (it was a good story, btw; watch for this morning’s Mississippi edition when it comes on line), I thought– is it even possible to make out an entrapment defense without the defendant testifying?
Which brings me to the article. Here’s the most interesting quote:
So what the defense is alleging sounds an awful lot like entrapment, but it never uses that word. Here’s why, I think. If a defendant mounts a formal entrapment defense, he must prove that, first, the government induced him to commit the crime and, second, that he had no predisposition to committing it.
There are lots of difficulties that come with invoking that defense, but chief among them is that the defendant opens the door to the government’s trying to prove other "similar " bad acts, even though the defendant hasn’t been charged with them in the indictment. (These become relevant to proving the defendant’s "predisposition " to commiting the crime)
The government already gave notice on January 28 that it will, in fact, try to introduce evidence of at least one such "similar act. " Prosecutors want to show that Scruggs was involved in a conspiracy to improperly influence a Hinds County state court judge, Bobby DeLaughter of Jackson, in early 2006. On January 7, Scruggs’s longtime friend (and erstwhile defense co-counsel in the federal bribery indictment), Joey Langston, in fact pled guilty to conspiring to corruptly influence DeLaughter at Scruggs behest. (Judge DeLaughter himself has not been charged with any wrongdoing, and has strenuously maintained his innocence.)
Can Scruggs prove he lacked predisposition without testifying himself? If he testifies, it opens up all kinds of problems, including those noted above (asking him about other crime evidence and the possibility that the government can use anything he gets excluded in his suppression motion by way of cross-examination.
The article goes on to suggest that Scruggs can’t really depend on a normal defense and must be planning on proving government misconduct and hoping for jury nullification. It’s my instinct about jurors in the division there in Oxford aren’t going to be much inclined toward that.
Excellent observations there NMC. Since my area of expertise is civil law, this is very educational to me and interesting.
This helps confirm my initial thoughts that Scruggs is posturing for the best plea deal he can get, and if necessary, in the event of trial, setting up as many potential arguments for appeal as his lawyers can muster with such pretrial motions and other legal tactics.
The deadline for the plea deals is approaching and will be most interesting.
And my lawyer sense is telling me that federal actions on “other matters” out there (many already discussed, some which may not be public yet) will be coming AFTER US v Scruggs is resolved — by plea or by trial. It has been really quiet with respect to several key players in the the Lackey bribery case and the other matters (eg PL Blake, Ed Peters, etc.). They are either cooperating and will testify against others at some point, or their day of prosecution is coming soon.
Is the Judicial Performance investigation on Judge Delaughter going to get in the way of the Feds. investigation of Ed Peters , Hopefully Ed is not just put out to pasture never to be herd from again. Judicial Performance is not funded enought to do very much digging, they have a very small staff and if I am reading correctly everything is done in secret until it is filed with the MSC. Could the Mississippi Legislature give more funds to this arm of our goverment , maybe taking it from the AG’s budget.
Under Federal law, the courts are always “in session;” we don’t have “terms of court.” The jury pool can be drawn from all of the counties in the Northern District of Mississippi, not just the “Western Division,” (erroneously called the “Oxford Division”) in previous pleadings filed by State Farm—there is no “Oxford Division.” It matters not whether the trial is held in Aberdeen, Oxford or Greenville. The jury pool will be drawn from the entire district. If necessary, the Chief Justice of the 5th Circuit can order that the jury pool in the Southern District of Mississippi be considered. (And from LA and TX–though I have never seen that done.) So, it is not like state court—where you go to one county and the venire is drawn from that county—the federal courts can have the trial in Oxford and draw jurors from the entire state, if necessary—-of course, the jurors are paid for travel, lodging and meal expenses. In addition, the judge can hold the trial in any courthouse he wants. We have Delta division cases tried in Greenville; Western division cases tried in Aberdeen—–the federal courts are not constricted, and the motion for change of venue will be denied.
friend, everything Rossmiller laid out may very well be right on target from a strictly legal point of view – based on an understanding of the “paper”.
IAT raised the “people” side of the “paper” – so to speak – in an earlier comment under “Rodeo” I believe.I was about to respond when this post came on my screen.
Context – meaning derived when context is considered is what tells the real story.
When context is considered, there is ample evidence to support what became a “crime” when Judge Lackey added “money” to the conversation might have otherwise been Balducci attempting to “trade on friendship”.
The same may hold true for some of these related cases – compensation provided when someone “trading on friendship” is successful.
If that’s a crime, then we live in a culture where virtually everyone is guilty.
Our “need” to know “who your people are” when we first meet someone is a well-known cultural trait. It’s the old “it’s not what you know, it’s who you know” that can and does work “magic” for many here every day.
Ethical behavior, as IAT considered, may be more of an issue than criminal behavior. Consequently, I see a far less difficult job of proving entrapment than Rossmiller’s analysis suggests.
Remember, I don’t think like a lawyer, my perspective is more like that of a jury – and it’s hard for me to believe a jury wouldn’t have “reasonable doubt” when behavior, correspondence, and conversation are viewed in context.
PS nothing I’ve said is “wrong” – simply a different opinion. : )
When I said “division here in Oxford,” I meant the Western Division, which I’ve mentioned in other posts. Having both selected juries and been a potential juror here, I thought I knew they are not selected district wide– you do not see jurors from Greenville or Columbus, say, on a jury at the Oxford federal court house in my experience. I’ll have to inquire what the rule is. I have tried a delta division case in Oxford several times, but the juries were from this area, not the delta division.
The change of venue motion– which I also think will be denied–asks for the case to be sent entirely out of state.
http://newsfromrussia.com/news/world/12-02-2008/104008-Richard_Scruggs-0
More “comments” found
[nowdoucit - "Consequently, I see a far less difficult job of proving entrapment than Rossmiller's analysis suggests.
Remember, I don't think like a lawyer, my perspective is more like that of a jury - and it's hard for me to believe a jury wouldn't have "reasonable doubt " when behavior, correspondence, and conversation are viewed in context."]
Well, legally, to plead entrapment, you have to first admit you committed the crime you are charged with (kind of hard to say you were entrapped into committing a crime you didn’t commit). Generally, that doesn’t go over well with juries, so people try to ride the fence like Keker is trying to do here. Do you think either of the Scruggs or Backstrom is capable of making this admission? I have my doubts.
Again, it appears that Balducci understood this to be illegal, much more so than many of the others who are watching. If people like Balducci can be taught the difference between right and wrong, and people like Patterson and Langston can be ashamed of their conduct, even that conduct that some people don’t deem as wrong or illegal, then anything is possible in our quest to clean up our judicial system.
Corruption never goes away quietly or without a fight, and it won’t this time, either.
Pravda has a story about Scruggs’s change of venue motion?!?
To make entrapment work, Scruggs would have to prove Balducci was entrapped, logically, would he not? And do that in spite of the fact that Balducci will be at the trial testifying “I had a plot with Dickie Scruggs as Dickie Scruggs’s agent to bribe the judge.”
How can anyone expect a jury to buy the line that Balducci was entrapped? The transcripts don’t support it, either.
What the transcripts do support, in a somewhat weak way, is the notion that Scruggs was not involved. The support is weak because the “not involved” comments always basically modified by the word “directly.” His indirect involvement is made pretty clear. But I think the only real appeal Scruggs can make to a juror looking at the facts with an open mind will be “I was not involved in this bribery scheme. Paterson and Balducci were doing it on their own.” Can he make that fly? I’ve my serious doubts, but that’s the best he’s got that I can see.
Nowdoucit, after Patterson and Balducci’s plea, can you seriously say “there was no bribery scheme, Lackey is the villain in this piece.” That’s what I hear you to say. Their plea concludes that, and does very serious damage to any entrapment argument. I agree that this leaves available an argument “Scruggs wasn’t involved,” which is an argument I don’t think the available evidence supports very well.
And another thing that you need to consider: The average juror in my experience in this district has a very, very strong impulse to accept the law enforcement version. They want to believe in it. There are places this isn’t true, but they are less common. I think with all of these transcripts and the witnesses who have flipped, you’re going to be far less likely to be the “average juror” than the folks who accept what they are told by FBI agents, a judge, and the prosecutors in the case.
First, I’m not saying Lackey is the “villain”. In fact, the context I see everything resting on is how highly you and others regard Judge Lackey – you particularly but perhaps because your posts are more prominent than the comments of others.
The visual image that creates as I read posts and comments here is of a man accorded god-like status by a legal community that would show deference to his integrity in any dealings with him, including social conversation.
Since Balducci was a member of that legal community, it is both expected and apparent that he did likewise.
If you apply that context, the fact that Judge Lackey introduced money to the conversation could be considered “entrapment” and a case can be made that it would be unreasonable to expect any member of the legal community to make such a claim – particular one in Balducci’s situation.
Hope that helps – I’ve run out of time to write more now.
At post no. 4 nowdoucit said:
When context is considered, there is ample evidence to support what became a "crime " when Judge Lackey added "money " to the conversation might have otherwise been Balducci attempting to "trade on friendship ".
Assuming without conceding that you are correct in your analysis that there is “ample evidence” that Judge Lackey is the scoundrel in this tale, I would submit that at least 4 people, three of whom are attorneys, and two of whom had much at stake, considered this very question. Unless you are saying that Balducci and Patterson have, with the advice of presumably competent counsel, entered pleas of guilty to acts which were not in fact criminal.
Apparently Balducci who was after all in perhaps the absolute best position to evaluate the context of the behavior, correspondence, and conversation did not find it to be as innocuous as you apparently do.
But then that was only his opinion. I suppose that he could be wrong.
stupid question: must there be a unanimous vote to convict in these cases?
Yes duckweed. All members of the jury must agree to any verdict. But not stupid at all.
thank you tiredlwyr. given that is the case and speaking from a juror pov, i don’t see no slam dunks so far.
I agree with AFOTL in that much will depend on the Blake and Peters situation.
Speaking of Blake has anyone found a picture of this guy??????????
In re Duckweedpond…We still have to wonder why DeLaughter has not yet been indicted as well as Blake and Peters. Have they perhaps worked out a pending deal? I expect to see all three at trial.
I don’t accord “God-like status” to Judge Lackey. I think this: He’s an honest guy. He’s a smart guy. He’s a very nice guy. Those are not rare traits, and that’s what I accord him. He is on a short list of people who I respect who I know well enough that I would be very dubious about an allegation of impropriety. The proof would have to be pretty solid.
So there: I’ve explained my possible prejudices in this. I think my views here are fact-driven and not driven by those possible prejudices. Where does your view of this case come from?
Question: Could Scruggs claim entrapment arising out of the efforts of Balducci after he flipped?
Good point, Weed. As was alluded to earlier, all Scruggs needs is just one friendly juror to hang this thing up.
NMC: What are your thoughts on the possibility of the court ordering an “anonymous jury” like the one in the case of Gov. Edwin Edwards in Louisiana?
When the feds picked up Balducci that day, would theynot have a warrent spelling out why they were arresting him…He being a lawyer knew exactly what had to be in that warrent..What would have happened if he stated I won’t a lawyer , take me to jail and let me study what I have been charged with. In legal circles he is being refered to as squirley…Could this be talking when one should keep ones mouth shut..
duck
If I have learned anything it is that there are NEVER any slam dunks in a courtroom. I have seen some jury results that defy belief. Anytime that you have a system that requires a group of people, with all their imperfections, to make a decision then there will never be a slam dunk. Unless of course you are rigging the deck, say with a bribery scheme .
And please don’t think that I am trashing the jury system. Until I see something more just, then count me as a fan. The jury system, like all human endeavors is gloriously imperfect.
Dragoman 20
Very true, just as did Beckwith years ago. There is a story that is attributed to former Gov. Barnett who supposedly said that a hung jury was just as good as an acquittal, it just didn’t last as long.
I don’t know that the FBI needed a warrant, Magnolia, but then I’m not in law enforcement, so what do I know? They had no doubt witnessed enough to take him in for questioning.
My guess is that when Mr. Balducci found himself in the fearsome clutches of the FBI, he lost his head, panicked down the trench, and started blubbering and babbling.
I think the point is being lost that Lackey raised the issue of money only after consulting the FBI. The FBI wanted evidence of something concrete (money, which they have on video) as opposed to something too easily explained away (a job offer at a future date). This concrete evidence obviously convinced Balducci this was a fight he couldn’t win.
I agree it is amazing what juries sometimes come up with, but it is difficult for me to believe anyone would think Balducci was entrapped. His comment about knowing where the bodies are buried would have been enough for me even without video.
Scruggs’ only hope is claim he was unaware of what was going on. We have not seen all the transcripts. If there is stuff tying the attempted bribe to Dickie, the real difficulty for the defense is how to defend the case without putting Dickie on the stand. If he testifies it opens a lot of doors.
Isn’t it interesting that Balducci and Patterson are the same pair of people brought up in State Farm v. Hood when Hood was asked by State Farm’s lawyer – paraphrasing — Didn’t Scruggs send Balducci and Patterson to have dinner with you at Crechales?
Balducci and Patterson was running out of money..$40,000 was lots of mulla to them..There is to much on record about the funding of Judge Lackeys bribe for entrapment if these calls are not thrown out…Pattersons wife had been talking to P L BLAKE, and Scruggs tells them he has talked to PL. Remenber what was at stake..Scrugg’s $26 MILLION …
NMC -[To make entrapment work, Scruggs would have to prove Balducci was entrapped, logically, would he not? And do that in spite of the fact that Balducci will be at the trial testifying "I had a plot with Dickie Scruggs as Dickie Scruggs's agent to bribe the judge. " ]
Number one. You can’t be entrapped by a non-government agent into the act, only the government, or an agent of the government. So saying he was entrapped, in the conversations he had with Balducci, before Balducci was flipped and became an informant, is a loser (even if it would have been a legitimate defense for Balducci). Then to claim that he was entrapped by Balducci, after he was flipped, he must admit that he did agree to bribe Judge Lackey for $40,000, but that he would’t have done it but for the government (through Balducci), unjustly enticing him, or in some other improper way, to do it. And, of course, if he does claim this, the government can bring in 404(b) material to show that in fact, Scruggs was predisposed to bribe judges because he had tried to do it before, such as with Joey Langston and the DeLaughter bribe, a door Scruggs and Keker probably would rather not open.
This is going to be a great law school case to brief in years to come.
magnolia, I thought Scruggs was going to give it to them to split if they won. Is that right?
One practical difficulty that hasn’t been raised that I have seen is the inherent difficulty for any attorney representing another lawyer. A lawyer has the potential, which in my limited experience they have completely fulfilled their potential, to be the worst clients in the world. Keker has my sympathy for that, if for no other reason.
And observer, your analysis is dead on. But a quick question. I haven’t had the occasion to look at it in some time but as I recall the Fifth Circuit had something of a lower threshold for the relevancy test for 404(b) evidence in conspiracy cases. If my memory is correct in that, has it changed?
belle, Patterson had been to this dance before, It was he, Joey and Ed that had split $3 Million from Scruggs on an another deal, OVER FEE MONEY..This is what Balducci is talking about buried bodies. Did he not say six? And it appears the buried bodies benifited whom?
Was Balducci a lawyer of record in this case before Judge Lackey?
NMC, instead of law, I studied “behavior” – and have a related master’s degree, some post-grad work that’s more developmental, and some fairly recent training in communications with a focus on what I’d call “messaging” for lack of a better word.
My view of this case, in large part, comes from that background. It’s assisted by the fact that I’m a visual reader – meaning that when I read a book, I “see” the movie.
I suppose the last piece of the puzzle that is “me” is that I genuinely like people and am fascinated by how we think and what makes us think the way we do – and all of this adds up to someone who pays a lot of attention to information in the context of who we are and how we live.
That said, I don’t think your view of Judge Lackey is “prejudical” – it seems to be the prevailing view. I don’t believe I’ve seen anything contrary on any blog – other than 1 comment early on that I posted here recently – much less in any article or news story.
Think back to the days immediately following the indictment. The reaction time and again was “how could anyone be so stupid to even try and bribe a judge of known integrity” – usually coupled with some remark about the small sum.
So- that’s the context or what one could call the background for the big picture. IMHO
now do you see it? : )
Observer– doesn’t what you are saying translate logically to “Scruggs can’t raise an entrapment defense”? If Balducci (entrapped) turns to Scruggs and says “we’ve got this deal where the Judge is saying you get your order for $40,000,” and Scruggs says “fine by me”, can Scruggs be said to be entrapped? Or can his only defense be “I never was involved, never said ‘fine by me.’”
How can someone at one remove from the government agents argue entrapment?
magnolia, Balducci was not in any public way a lawyer for Scruggs in the Jones, Funderburg case before Lackey.
Nowducit, It appears you might be over some of our heads..You know what you are saying and whats it means to you, but one has to read and reread you post to understand what you are trying to get across. What you are saying has made me look at Balducci’s actions more than what Judge Lackey has done..Judge Lackey’s interegy couldnot be compromised, and this was what Scruggs had those around him (BUFER) whose intergerty could be compromised doing.
I’m wanting to think through my last comment about the idea that someone could not argue entrapment without direct contact with the government agents. Someone is entraped if the government agents talk them into doing something they “are not predisposed to do.” The classic cases all involve prohibition and narcotis. The government agents beg or nag someone till they go get them some illicit substance.
Balducci is the one the government agent talked to here. I think he would have real trouble arguing lack of predisposition based on the content of the tapes, and because Balducci initiated an improper contact and started talking about getting the order improperly. Hardly shows a lack of disposition to crime. But suppose he did have an argument he was not predisposed.
Now: What does that do for Scruggs? If Balducci (lacking predisposition) talks Scruggs into participating in a crime, does that provide a defense for Scruggs? What does he have to do to show he was entrapped?
I still think it bottoms out that his best defense is to show uninvolvement.
Interesting (and not coincidental) that in United States v. Russell, a major entrapment case, the U.S. Supreme Court also considered a defense based on “outrageous government conduct”. Russell lost on both.
Thanks magnolia. I got the two bribery deals confused.
Idocit, I do.
Logically, the only way an entrapment defense could work for Scruggs would be for him get on the stand and say, “Yes, Balducci came to me, (at a point after he had been flipped by the government) and said, ‘Judge Lackey needs to be bribed,’ and I said, “No, I don’t believe in bribery (or something like that),’ and Balducci just kept coming to me over and over again, and kept trying to talk to me into it, and saying things like Judge Lackey will screw us unless we bribe him, until finally, I said, okay, and gave him $40,000 that I knew he was going to use to bribe Judge Lackey to get the order I needed.”
Then, he would be able to get a jury instruction on entrapment. But, that is a very, very, narrow set of circumstances, and evidence by the government that he was already on board with the bribe before Balducci was flipped, or 404(b) evidence that he had done this before, (and was therefore predisposed to commit bribery), is going to sink him if he tries this at trial. Not too mention that for this to work, both of the Scruggs boys and Backstrom have to all do it, and to have their story down pat. Otherwise, the prosecutors are going to hang, gut, and clean them on the witness stand.
Which is why, I think , and probably a lot of other people think, too, that Keker is trying to get out a claim of entrapment, without having to do the things you need to prove entrapment, through the motion to dismiss. In my opinion, they are not making this motion hoping to win over Judge Biggers (it’s not even a great appeal issue really). I think they are making this motion to try and win over potential jurors to this point of view in a venue without the rules they would have to play by with an entrapment defense in a jury trial.
And, you can see from many of the comments here, and on some other blogs, that while not getting much traction with the attorneys, there are some laypersons it is working with. So even if they lose, they have had a chance to float a defense theory out there, that they probably will not be legally entitled to float in the trial. All they need is one juror to bite, as I bet Keker would be almost as happy with a hung jury as an outright acquital, considering the odds he appears to be facing.
nowdoucit:
I have no doubt that I fit magnolia’s description that you are over my head. But with that said, I truly am struggling and trying to understand what you are saying.
Let me take a stab at it and see if I am anywhere in the right zip code with my understanding.
Are you saying that:
Judge Lackey is a well respected man of integrity;
Balducci is a lawyer familiar with Judge Lackey and his reputation for integrity; as a lawyer Balducci is smart and would know not to try to bribe a judge of integrity; therefore if all this hubbub that is the subject of this conversation happened then the moving force would have to be something other than Balducci since he was smart and knew Judge Lackey’s reputation? And you have set about in your mind to find a moving force which is reasonable from your perspective but have not found it to date.
A moving force…P L Blake…Why are we not hereing anything from this side of the prosecution…
maybe something soon?:
SCRUGGS DEVELOPMENT:
Oxford: Federal grand jury back in session
2/13/2008 3:30:04 PM
Daily Journal
see link for full article
http://www.djournal.com/pages/story.asp?ID=265871&pub=1&div=News
IAG, thanks for the DJ links, but you’re gonna get us in big trouble with any paper whose stories you reprint in full here. Please check folo’s About page for a little warning on the “fair use” of copyrighted materials, okay?
Hmmm. Could we finally be seeing the much rumored indictments coming down in a few days or weeks?
you can listen to the Mississippi Public Radio reporter talk to the law professors on Ya’ll.com
tired, I was responding to a question from NMC asking the basis for my “reasonable doubt” about Balducci’s conduct in the context of Judge Lackey’s widely known, highly regarded integrity.
I will add here that the difference in their age and status in the legal profession provides additional context in that regard.
You got way ahead of me – and the only sense I have about a larger “moving force” at this point is the strong feelings some have about Scruggs and his dealings are providing a context for other considerations.
I don’t know if this is helpful or not – I just didn’t want to leave you or anyone thinking I had this thing all figured out when I was looking very narrowly at what I’d call “behavioral entrapment”
nowdy-
Thanks for your explanation of your viewpoint. If nothing else I do now think that I have something of an understanding of your posts. And I certainly didn’t mean to give an implication that I thought you had everything figured out regardless of the context of my post.
First of all, NO disrespect is meant by the following comment. However, methinks that I can no more ascertain how tender a cut of steak is or how it tastes by looking up a bull’s arse than I can do by “reading” the background of the storyline, no matter how artfully written.
This (Scruggs et al) is not a fiction “story” woven by a crafty wordsmith: it’s an aggregate of inanimate observations, reporting(s) of various “facts,” legal precedence and a great deal of interpretive comment(s), all of which are delivered with a great deal of bias on the part of the one sharing/commenting/posting the information, no matter how pure or noble the intent of the deliverer. None of us were “there” and can truly understand the “context” and content of the meetings, even though we can try to follow through limited information…
I beleive Lotus herself spoke of the rationale behind juries hearing AND seeing the witnesses as opposed to just reading transcripts/commentary before making a decision.
Now back to the rest of that bottle nice bottle of Tito’s……..
nowdoucit – When you studied behavior, did you ever study anti-social personality types?
Because, ninety per cent of the time, when you are dealing with someone who has broken the law, (especially when you are talking about serial conduct), that is the type of person you are dealing with. And, the biggest mistake normal people make, (who are, of course, not anti-social personality types), is to try and rationalize the how and why of those people committing criminal acts, based upon what they perceive their own behavior and actions would be in such a situation.
Generally, being a good criminal investigator, or prosecutor, is recognizing that behavior, and taking it into account, rather than their own predelictions, in trying to predict, understand, re-create, or solve a crime.
No disrespect intended to any visual reading/movie viewing skills you may have.
I am not a lawyer, but I expect the defense has to try to discredit every step of the case. I do not expect they will win on the motions, but if they do go before a jury, they have to make the whole thing look like a targeted sting to get Scruggs.
As far as we know, the feds had no evidence of “predisposition” at the time they had the Judge ask for $40K, started recording every conversation, and had the Judge call Balducci several times to try to set the hook and coax incriminating statements out of him.
So you have Lackey saying, “I don’t want your money, Tim, I’ll only take Dickie Scruggs money.” Then when they have Balducci, they send him to say,”We paid for this, let’s be sure we got what we paid for.” And so on.
Even the “buried bodies” line, which appears to be the earliest “predisposition” evidence, came after the money offer, after the Judge was wired, and after some phone calls had been recorded.
Was all that really proportionate to the suggested job offer after the Judge’s retirement, or did the feds jump in with both feet because it involved Dickie Scruggs?
It is not that far-fetched to try to get a few jurors in Mississippi to believe there was a government conspiracy. A sizeable slice of Mississippians think the government conspires against them on a regular basis.
Observer, I see my reply to Shaves never made it; so, this is a two-for-one reply – and I’ll start this one where I ended the other.
I did not intend to do anything other than answer NMC’s question – where did I get my point of view? Since I didn’t want him to think I just pulled something out of thin air and typed it up, I told him.
It occurs to me that I’ve some how managed to convey that context is something other than undisputed fact gleaned from the various documents available for our examination.
Context is nothing more than background for other facts likewise gleaned from these documents.
It is my understanding the government must prove it’s case beyond a reasonable doubt – that suggests to me examining the government’s case for doubt in light of the facts established by the defense against the context provided by any undisputed facts.
That would include serial conduct and antisocial personality types if established in fact. I can visually read your comment, btw, no disrespect intended – but the “story line” Shaves mentioned is in the legal documents.
…and, by now, he’s probably finished that bottle of wine. : )
That may be the explanation. We’re both reading the same thing, but we are seeing completely different movies based on our life experience.
And, a lot of attorneys here are probably better able to read between the lines and have a pretty good idea of the things that are left unsaid, but that circumstances indicate undoubtedly exist.
In a trial, each side is informed of what the other’s disclosable case is through discovery. A lot of laypersons wrongfully assume that all, or even a great deal, of the evidence that either side will present is disclosed in discovery. That is sometimes, but rarely, true.
For instance, the prosecution only has to give the names of witnesses, not what they will testify about (except in certain narrow circumstances).
The wiretap, and the recorded conversations with Balducci and Judge Lackey, quit being Scruggs’ biggest problem once Balducci, Patterson, and Langston pleaded guilty, and agreed to testify against Scruggs in trial. Keker and Scruggs’ other attorneys can argue all they want in motions about the context of these conversations. But, when those two (or three) get on the witness stand, and start telling the jury exactly what happened, and the context of all of the conversations, Keker’s version goes into the trash can. And, the only real way he can rebut it, is going to be to put Scruggs and the others on the witness stand to say they are lying.
There is a law school course of reasons that it is hazardous to put a defendant on the stand (especially one where 404(b) material exists, as it does here).
When I say I think Scruggs is in trouble, (and that that is the movie I see) it is not based on reading a few snippets of conversation and trying to decipher it. It is because, over a hundred jury trials tell me what is probably going to happen, and what the only logical testimony from his co-defendants can be.
I wish that wasn’t so, because of the black eye this whole affair has given the legal and judical profession in Mississippi, the overwhelming number of both being honest. Nothing would make me happier than for you to be right, and for this whole thing to be a big mistake.
But, you have to remember, a mistake is not what Scruggs’ defense drift is. His version is that he, his son, Backstrom, Patterson, Balducci, and Langston (and actually DeLaughter, Peters, and Blake) are not the bad guys here. He is presenting the bad guys as the middle class civil servants who investigated and are prosecuting this case, (he also wants you to discount his $26 million dollar motive, and point the finger at people who have no motive other than upholding the law).
I guess when you have done to the judicial system what Scruggs has done, throwing a little more mud in doesn’t seem like such a big deal. I promise you it is a big deal to those persons he accuses of crimes, while attempting to deflect examination of his own behavior, because in the end, he doesn’t really care about anyone but himself.
Again, a classic example of anti-social personality types, to bring me back around to where I started. That’s the movie I see.
observer, what an excellent essay disguised here as a comment. Much thanks and many readers to you!
Not only excellent but really helpful, too, Observer – btw, Mr. Greenlee seem to be right up there with Judge Lackey.
I never expected a “movie” for Valentine’s Day but the gift of your insight is most appreciated.
“But, when those two (or three) get on the witness stand, and start telling the jury exactly what happened, and the context of all of the conversations, Keker’s version goes into the trash can. ”
Just a little aside here, but observer, you forgot about impeaching the witnesses’s testimony when they are cross-examined on the stand. I bet Scruggs knows these guys a lot better than the prosecution. (literally, my 2 cents worth)
belle-
True. However, there is something known as a double edged knife.
Oh, tiredlwyr, I wish I’d thought of that “double edged knife” yesterday when I was trying to answer NMC’s question honestly and sounded a bit like the “Great Carnac”.
I wish Research had sliced this question he asked with a double edged knife – “Was all that really proportionate to the suggested job offer after the Judge’s retirement, or did the feds jump in with both feet because it involved Dickie Scruggs?”
When I made a related comment the other day, all the attention went to the accuracy of one of my quotes – when the point I was trying to make is the language Balducci used in the recorded conversation of September 19th clearly indicates it was the first time he’d made such an offer – the “corn on the ground” comment we keep grinding about in our comments.
To me that’s such a good example of what I was trying to explain yesterday about behavior related to facts in context. Read that whole section of the transcript and you’ll see how he fell all over his words trying to make sure his offer was unrelated to the transaction – an obvious attempt to prevent the appearance of a bribe.
The “movie” I was reading went into rewind – the robe, the offer – this same scene was set in March; but, it’s playing in September on the screen?
nowdy-
As I posted last night, I now think that I understand your posts a little better. But even with that better understanding I cannot abandon my view which is virtually identical to the view expressed by observer so eloquently
I do believe that there are two people in the world who are best suited to know the context and meaning of the conversation to which you refer; Balducci and Lackey. Both of them have seemingly agreed on the context and meaning, while you seemingly are unable or unwilling to accept their consistent position. Balducci has entered a plea of guilty and has admitted thereby his lack of an innocent purpose. You seem to attach a different interpretation of his actions and words than the one he admits. I certainly do not argue with your freedom to do so.
I echo the thoughts of observer in that I learned long ago that I could not logically understand the “why” of most criminal behavior from my perspective because it was not logical. In other words, like most people, it is not my natural state to think like a criminal.
Although you are free to use the concept of a double edged knife for whatever purpose you choose, my brief post meant something very different than what I interpret you to have attached to it. Quite simply, I meant that as belle said, perhaps “Scruggs knows these guys a lot better than the prosecution.” But with that knowledge comes a very real risk. In attacking them he runs a very real risk of attacking himself. The jury will be reminded at length that if Scruggs knew them to be scoundrels that they are his scoundrels. It was after all Scruggs who involved Balducci and Patterson and P. L. and Langston and Peters, etc etc etc. They were all chosen by Scruggs not by the government. So from my perspective his knowledge of them certainly can hurt him as much, and perhaps more than it could help him. Thus the double edged knife.
I see what you’re saying.
I’m trying to understand “lawyer think” and appreciate the help – and patient understanding – you and others are giving to my effort.
I wonder how many people don’t realize they think like a criminal until they get arrested or indicted and discover they are one?
The more I learn about Project Innocence, the more amazed I am at how easily innocent people can be found guilty of a crime they didn’t commit. When I read your comment with that still fresh on my mind from the post “upstairs”, it made me wonder if Project Innocence had run into people who were but pled guilty – some days 5:00 just can’t come soon enough!
Yeah, like Larry Craig!?
Nowdoucit I have often wondered how one thinks like a criminal…Is it an envirement one grows up in or, or we predispositioned…Having managed many employee’s from different walks of life who each had many many financial problems and was incharge of large amounts of money, those that you thought might steal never ever took what was not their’s and those that you thought wouldnever steal did..This was always a physic thing for me trying to read into another persons character as to just have far I could trust someone…Do you understand what I’m saying. I found no matter what dire strights personally an employee found themselves in if they fell into the first group you could trust them with anything.
I think about that, too, Magnolia, and this is a very unscientific summary of my thinking.
All criminals don’t have a criminal mind. A good many I suspect have, for lack of a better word, a lapse in judgment. At the other end of the scale, you have people who don’t have much of a mind at all who have committed various crimes.
It’s the ones in the middle that make us all wonder. I would think they fall into three groups – two of our own making and one they made on their own.
The two of our own making are the under-educated/developed and the mal-treated. For a host of reasons, those in the first group didn’t follow a typical pattern of development – they don’t know how to read, to work cooperatively, resolve conflict appropriately and so forth; but are candidates for rehabilitation.
The mal-treated are the ones that exhibit traits most people associate with a criminal mind. One of the better-known psychologists in the country pretty much said it all – “the unloved become the unloving”. People simply do horrible things to children and the outcome is often a life of crime. Those who first experience a safe and secure environment when they are incarcerated could be rehabilitated; more are probably the “revolving cell door”. The ones that frighten us most are are those adolescents and adults with no feelings – those who place no value on their lives or ours.
The third group is one that fits the discussion here best because there’s often such a thin line between unethical conduct and unlawful conduct.
If you read it and have questions, I’ll respond but, having totally “bombed” on an earlier attempt to explain it, I’m going to otherwise pass and just offer the link to “my take” on white collar crime.
http://tinyurl.com/l4af5
nowdy, as a vivid example of your second category, I cite the Florida serial killer Gerald Stano (executed a few years ago). A judge friend of mine who’d been a prosecutor in on the early stages of his case told me this horrifying story.
Stano had been adopted as an infant by a couple who did their best to give him a loving home and normal upbringing. But the severe abuse he suffered in the very earliest months of his life, before he ended up in their kind hands, proved too much to overcome: it had already coded a psychopath.
nowdoucit, thank you for linking to that. I have appreciated those stages since I first studied them 15 years ago! They are very helpful in understanding humankind and the different stages some get stuck.
Thanks, Belle, I hope ItsAboutTime takes a look because it fits with IAT’s 9am post yesterday – and that fits with the latest post upstairs that says Langton’s plea was to “influencing” not “bribery”
I don’t know how – or even if – a comment can be linked so I’ve done a cut/paste here”
“If scruggs hired Balducci (or Peters) to use his friendship to influence Judge Lackey (or Delaughter) and to influence the outcome of the case with no money involved (except to Balducci or Peters) what is the crime? Must be one. Or perhaps just unethical? Certainly a deprivation of property without due process under color of state law under 1983, but what is the corresponding criminal statute?”
…and I think that’s interesting because of the comments about Patterson and Balducci attempting to “influence” federal legislation – take out the references to PL – and you’ve got “business as usual” in DC and every state capitol.
Although it seems I keep ending up at places where people try to explain to me why people do the bad things they do, I never really took to any particular theory, or even was that interested.
I guess, in my jobs, I just never worried too much about how they got that way, just what to do with them once they were that way.
But, it’s good that some people are trying to figure out how they got that way.
If you can figure out how they got that way then you might have a clue as to “what to do with them once they were that way.”
Lock them up? Always worked for me before.
I tend to agree with you Observer. I believe that our courts fail some of these people. They commit a crime or several and they are just numbers on a full docket. Persons of the court just want the docket cleared so at times you have repeat offenders being patted on the hand, not having to serve time and put back on the street to commit new crimes against our citzens. If some of these people had to serve time or had their disbilty checks cut off maybe they would want to change.
But as you point out, that system doesn’t seem to be working either, does it, Stormy and observer. As Hillary said, (oh oh, I am going to get it for this). It takes a village.
And as my granddaddy used to say after hearing Hillary speak that piece of drivel, “Some village somewhere is missing their idiot cuz we’ve got an extra one.”
And that sucks. I’ve worked since I was 13 years old and have to deal with people everyday that have draw a check and get other means of government support for having problems with their nerves etc.. and lets not forget they have never had a job have a couple of children or so that are also getting benifits and of course let’s not forget that this is only the 3rd or 4th time they broke into to somones home and that wan’t their fault!!! THIS TYPE OF SHIT REALLY GETS ME GOING.
belle- I agree with you it takes a village. But perhaps the problem is that you and I see two entirely different villages. Mine is one that teaches something about personal responsibility, not to look to the government for everything in life. One that teaches something of a work ethic, not that subsidizes lack of effort. I could go on but……
Hey Jane, I suspect they drive a $50,ooo car, wear the best clothes and eat steak every night….
Jane if find a good deal on taser’s let us know..
Y’all are all right. Tired, that’s what my village looks like too, obviously not the one where they let the crackheads and criminals stay on the street. That’s what I was alluding to, but you said it better. Locking them up doesn’t work because there’s not enough room or money and they get put back on the street or not even picked up because it’s not even worth doing that, so re-education would be a good place to start which leads us back to where we started, if you learn about human behavior, you can maybe help figure out what to do with these people.
People will continue to commit crimes as long as they know that nothing will happen to them for their actions. If the court system would start making examples of some of the people then some of the others might take heed.
Razor 75, you’d enjoy one of my fridge magnets: “A village in Texas has lost its idiot.”
Or mebbe not.
Hey Belle, we could build a tent city and put them all in pink!
Jane, I’d stick with the gun and…make sure they don’t get up!! ha!
Texas had idiots? He’s not “lost” he just moved they know where he is….
“If a tree falls in the forest and no one is around….” Anonymous
“If an idiot doesn’t know where he is, but everyone else does, is he lost” Razor
My God, I wake up one morning and my blog’s gone rightwing on me. What a deal.
Looks like this might be an idea for a new thread…”our thoughts on the criminal Justice System.”
Lotus, just as “all politics is local,” it appears oftentimes all liberals go conservative when it’s THEIR stuff getting stolen etc….just as all conservatives go liberal when it’s THEIR kids getting caught breaking the law.
Razor, I wasn’t aware you knew me!!
What was the theme to “Beretta”, Don’t do the crime if you can’t do the time?????
Mag: Only in the cosmic sense….or would that be comic?
Maybe comic but Stormy is right about that quote!
tired, I just was re-reading your post and it made me think that that is why we need better education in this country (as well as better parenting and mentoring, etc.). It would behoove us all to take care of the children.
Yup, Jane, if only parenting licenses were as required as driving licenses, think of the trouble that would just never arise. Oh well . . . next question?
We don’t need better education nearly so much as we need better azzwhuppins’ for the truants…not after debating with the village’s chief idiots and seeing how they “feel” about it.
The 800 lb gorilla in the room is outta control and if it takes an hickory axe handle (or willow switch or gentle insistence on change by taking away the Ipod) to make him stop touching the fine china and whizzing on the floor…so be it.
Issues of “right and wrong” and “consequences of actions” are not being taught in a meaningful way…All of these “contemporary” theories on child development are the writings of persons with no practical experience, but a theoretical basis….and how is that program working out for society? Why don’t we go back to the simple things like “this is right and that is wrong and if you insist on doing what is wrong…dat azz is gonna pay.”
It’s simple: Education=Do what’s right or pay the price.
Problem is they aren’t being made to pay the price. We are.
Who are your “they” and “we,” Razor?
Lotus, #97. Good catch on my usage of generalizations, so I’ll be more specific in my usage of “they” and “we.”
In the first paragraph. They=people not teaching kids right from wrong and encouraging others not to do so by espousing some “theory” of child rearing. One I might add that doesn’t appear to be working very well, as evidenced by the ever increasing rise in delinquency, crime, lack of moral fiber and integrity.
In the last paragraph:
They=the delinquents and miscreants themselves, including the proponents of said theories.
We=the people that are teaching their kids right from wrong and attempting to maintain some sense of decency, values and morals. All of this while footing the bill for keeping the aformentioned misfits either incarcerated or on life-time social benefits since the lessons previously mentioned were omitted or discounted as being “old fashioned.”
And I agree with your statement on issuance of parenting licenses…..
I was wandering down a thread about “Scruggs’s quasi entrapment argument” and it suddenly took a really unexpected turn.
NMC—we’ll call it a segue into why Dickie thinks the way he does and thus does have a predilection for committing possible crime(s). LOL
I totally agree Razor. If a so called parent draws a check and continues to commit crimes then what do you expect of the child. I don’t understand why or gov’t lets these people to lay around on their buttocks and we are made to pay for it. If they go to prison they continue to get to lay around, eat 3 squares a day and we still pay. let’s not forget that every time they commit a new charge we also must pay for their public defender. It just seems to go on and on.
Maybe I should try to tie it all together: What made Dickie that way, his youth or entrapment, and should Jane taser him on his way to jail?
oops– semi-pwnd by the shaver
I don’t know how Dick was raised but I do believe that he thought he had his hands in enough pockets that he thought he was untouchable. Welcome to the real world Dick!
I see a book and a movie deal in this thread already…
NMC, maybe Jane could do him as Grandmother did to me, make him go to the tree and pick his own switch and know you picked the thing that is leaving whelps on your butt.
What started this interesting conversation? I read the new posts and then looked at the “latest comment” sidebar – I know there’s a link but I can’t find it.
Now, it’s a post from earlier this week and I started in when I saw comment 69 this morning. Guess we got side tracked on morals etc..
Actually locking them up does work-while they are locked up. It’s letting them out, and thinking that they are going to become someone different than the person they are, that doesn’t work.
It is common knowledge in law enforcement circles that most of the crimes are committed by a relatively small percentage of the population.
And, keep in mind, that studies show that the majority of criminals, as I noted before, are anti-social personality types (and different from the criminally insane who don’t know the difference between right and wrong).
Anti-social personality types, also referred to as sociopaths, and psychopaths, are well aware of the difference between right and wrong, as defined by society, but don’t see society as having any right to impose those rules on them (sound just a little bit familiar in our current judicial scandals?).
Their only behavioral restraint is fear of getting caught and punished. And, once they are punished, and get out, they are exactly like they were when they went in. Fear of punishment will make them less likely to commit a crime (and places like Jackson, where fear of punishment is low, is the best example of why that matters with anti-social personality types).
They also feel little or no empathy for other people. However, they are often bright and smart, and realize that society expects this, and will often attempt to emulate compassion and empathy. In short, they don’t really care about anybody but themselves, but they realize how negatively society judges such behavior, so they fake it.
Not all of them will be criminals, or even engage in criminal acts. But, it will be fear of getting caught and punished, not any moral reservations, or sense of being part of society, that causes them to be law abiding. And, when they are caught, they have no boundaries in defending themselves, because they really think everyone is like them, and that anyone who tries to hold them accountable, is therefore a hypocrite.
Think about it, and whether you agree with me or not, take a minute and just for fun, try and apply it to the whole Scruggs situation. Just as a mental exercise.
They=people not teaching kids right from wrong and encouraging others not to do so by espousing some "theory " of child rearing.
Razor, what “theory” of child rearing can you imagine would support not “teaching kids right from wrong”? That whole sentence is utterly ridiculous.
Pre-Conventional
The pre-conventional level of moral reasoning is especially common in children, although adults can also exhibit this level of reasoning. Reasoners in the pre-conventional level judge the morality of an action by its direct consequences. The pre-conventional level consists of the first and second stages of moral development, and are purely concerned with the self in an egocentric manner.
In Stage one (obedience and punishment driven), individuals focus on the direct consequences that their actions will have for themselves. For example, an action is perceived as morally wrong if the person who commits it gets punished. The worse the punishment for the act is, the more ‘bad’ the act is perceived to be.[12] In addition, there is no recognition that others’ points of view are any different from one’s own view.[citation needed] This stage may be viewed as a kind of authoritarianism.[citation needed]
See, observer! Those guys are stuck in Stage One of moral development, that nowdoucit posted yesterday. I’ll be back for analysis of Scruggs’s behaviour later, assuming he is guilty and all.
Belle=I can suggest a few, like maybe Benjamin Spock, Joyce Brothers, Freud, Erickson and of course Piaget ……you’ll need to skip all things Skinner because that’s more old school type thinking,…..but of course get a copy of Parenting magazine and clip some nifty child rearing ideas from it.
And then after you do all that, you can tell me that sentence is ridiculous. With some basis for your conclusion.
The ones that stay that way, Belle, are the ones with the “good” parents that “make them mind” instead of teaching them how to think. I’ll check in later – busy day.
For those out there who has child rearing down to a science and will say if you do this they will turn out this way,please tell me where I might find your book because it is worth millions.
Mag: My point exactly…now if we can just get this thread back on topic.
Or should we presume it is on topic and talk about poor ole Zach’s upbringing?
Excuse me, am I hearing you correctly Razor? You’re saying all of these people tell parents not to teach the children right from wrong? I have studied child development extensively and all I can say is that you cannot know what you are talking about if you believe that.
Razor, I’ll bet he was a child of privledge, as most of this whole crew was.
re: “shaves” #115 the thread actually was very much on-topic – “circle jerk” thinking comes into play at level 4…sorry I had to leave and couldn’t help “belle” take the discussion to that level…maybe we can pick it up later.
as to #112 Erikson and Piaget definitely supported teaching children right from wrong – note “teach” not “preach”
Magnolia#114 – add “at yahoo” to my name and if you can be more specific with your need, I’ll send you related information.
Well since I had to be out in the real world today and was not able to join in the festivities I would like to throw out one more name who might have a few good ideas about child rearing. Somehow I bet the name John Rosemond makes belle cringe.
Unfortunately magnolia I have no secret formula. I suppose that I was imprinted by my parents way of parenting. It was simple, direct, very consistent and not heavy on the latest theorist of the day. Seems to have worked well on my baby girl though. If I could give all the right answers or bottle and sell it I would have more money than Dickie.
The real world? That sounds spooky.
OMG Jane, you have no idea.
I can’t speak for belle, tiredlwyr, but I think John Rosemond reflects the application of Erikson and other highly regarded developmental theorist – a group that does not include all of those “shaves” listed.
btw – “simple, direct, and very consistent” is the hallmark of the application of the work of the highly regarded theorist.
If it could be bottled and sold, I would have beat you to it – and believe me I’ve given the “product” a lot of thought. : )
You have a very lucky little girl – and she’ll “inherit” something worth more than Dickie’s money from your “simple, direct, and consistent” parenting.
Niwducit thanks, “The first 40 years of parenthood are always the hardest”
Magnolia, you spoke a greater truth than you can imagine. Parenting is the hardest job anyone can ever have – and there would be a lot fewer children if we could remember that when we having so much fun making one.
I did think there was some sort of semi-retirement plan that started kicking in after college – was I ever wrong about that.
I gots me a little break there, what’s going on >>>>
“My children” were 8 years old when I met them, took parenting lessons, went to therapists (their mother left the country when they in the 3rd grade), having studied child psychology, it was the hardest job ever, esp. when the dad felt guilty because of it (catholic). They’re in college, now and the most beautiful despite all my hard work. I am not taking credit for everything they had a lot going for them before I met them!
I came back from my “break” and made comment #118 – pick up from there and see if that helps.
NDUC. #122 “…other highly regarded development THEORIST…” Once again, that was my point…it’s theoretical NOT practical and it sure doesn’t appear to work. You discounted my assertions and my inclusion of Piaget and Erickson so I’ll offer this for rebuttal and expect that you should be able to do likewise, if you are correct.
“Piaget’s Key Ideas”, “…Egocentrism The belief that you are the center of the universe and everything revolves around you: the corresponding inability to see the world as someone else does and adapt to it.” Now that’s a good idea for kids to beleive….don’t listen to your parents. YOU are the center of the Known Universe and YOU decide right from wrong for yourself.
In addtion, Erikson advocated for a “new education of children” based on self-knowledge and a complex world view that scorned “immediate diagnoses of health or sickness, judgments of goodness or badness, or advice on `how to.
If that’s “definitely” supporting instuction on “right from wrong” I’ll be damned if I get that out of a simple reading of the plain language used.
I submit that my original post was accurate, complete and in no need of amendment or further explanation.
I had a revelation (because I love Kohlberg) that criminals are stuck in 1 & 2 (generalizing big time here) and doctors and lawyers reach up to 5 & 6 and the rest of us good ole folk are somewhere in between?
Uh, do I have to go pull my book out? Really?
That’s funny razor. You don’t teach your babies that. You try to see where they are coming from so you can act accordingly. Jeez.
My comment at #118 was intended to focus on the level 4 discussions of criminal behavior relative to allegations of crimes in this case – and I continue to believe level 4 moral reasoning factors into the “circle jerk thinking” taking place in that regard.
As to our differing views with “shaves” he was correct when he wrote at #96 “Issues of "right and wrong " and "consequences of actions " are not being taught in a meaningful way”
Our differing opinion IMHO is because the theory I posted at at #65 relates to the development of one aspect of intelligence related to with implications for Magnolia #64 “Nowdoucit I have often wondered how one thinks like a criminal”
When we state Piaget’s and Erikson’s theories of intelligence do not say children should not be taught right from wrong, belle, I’m guessing those are not the theories “shaves” has in mind -although anyone trying to teach their children “right from wrong” will not be successful unless the theories of how children learn are considered.