"He said I never engaged in this kind of thing before "
Bob Dylan, "Highway 61 Revisited "
Updated (x2) as described at the end
I’m going to put together a series of posts that set out the chronology of the wire transcripts along with related events. I’ve two goals: One is to give everyone a narrative. The other is as a framework to understand Scruggs’s argument that the crime was induced by "outrageous government conduct. " This also allows me to correct some things –I’ve found the "bodies buried " quote in context, for instance. The indictment places it in the conversation of May 9th, but there’s almost identical language in the May 21st conversation, and the context makes it even more interesting (and underscores the honor-among-thieves issue), because what Balducci is saying is that he knows Scruggs won’t "use " the information on Lackey later, because Balducci has worked with Scruggs for several years and knows where the bodies are buried. Here’s the story:
- March 15th, Jones, Funderburg files a sealed lawsuit against Scruggs and the other Katrina Group lawyers over Katrina fees. The suit is hand-delivered to Scruggs. The case is before Judge Lackey, the senior Circuit Judge in this district.
- March 28th, in a meeting at the Scruggs office, Balducci makes an offer to contact Judge Lackey, who he says is his friend, about the Jones lawsuit. Nothing is said about him formally appearing in the case, and he never did. This meeting is mentioned in Scruggs’s motion to dismiss.
- March 28th, phone call and face to face, Balducci and Lackey. Balducci calls Lackey for a meeting. This is the “put down your robe” conversation that rattled Lackey and led him to call the
- In April and May, the parties brief several motions that revolved around whether the case was going to arbitration. By May 4th, the parties had agreed to set a hearing on those motions before before Judge Lackey on May 24th.
- May 4th, Sidney Backstrom emails a proposed order to Balducci designed to accomplish what Scruggs wants.
- May 4th, phone call, Balducci calls Lackey. Lackey is eating peanut brittle (Balducci guesses chewing tobacco…). Lackey says he has the order compelling arbitration, which Balducci had sent him. Balducci says, “That was just some thoughts, ideas and suggestions that I thought I’d put on paper… see if his honor thought that would look like somethin’ he might be interested in.” Lackey says he wants to close the door and asks, “Could we hunker about, say… 3 or 4 o’clock.” They agree to meet, Lackey asks about Balducci’s children and says he wants to see them when he’s in
- May 4th, Balducci faxes the order he’d obtained from Backstrom to Judge Lackey.
- May 9th, face to face meeting, Balducci and Lackey. The indictment says this is the "bodies are buried " conversation, but there’s an almost identical quote in the May 21st transcript. This is the one where Balducci first (as far as we know) talked about his "relationship with Dick " being "such that he and I can talk very privately about these kinds of matters and I have the fullest confidence that if the court "is inclined to rule in favor, everything will be good. " It also has Balducci running his mouth about Johnny Jones. A description of what is in this transcript in full is here. A huge amount of this very important transcript is missing.
- May 21st , telephone call, Lackey to Balducci. Lackey starts by saying: "Look, look, look, look. I’m just havin’ a, you know, it’s " I’ve never been involved in anything like this and I guess I just need, uh, reassurance, I guess is what. "
Balducci: Yes sir.
Lackey: Uh, you and I know you told me this and I’m satisfied with it but I just want to hear you say it again. You and Scruggs only one know anything about this?
Balducci: Absolutely, Judge. Absolutely. There is nobody in this world, ain’t but three folks in this world that know that I’ve even seen you. And it’s me and you and him. And that’s it. "
Lackey: Well, thank you. Well, that’s good. I uh "
Balducci: And listen, I don’t want you to do anything you’re uncomfortable with, either. Now it’s one of those situations where, frankly, I think we’re right and I think the law’s on our side and I think probably had I never even approached you, we’d probably had the right, uh, result for us on this thing.
Lackey: Yeah.
Balducci: But, um, uh, you know. I don’t want you to do anything you uncomfortable with. I mean I respect you too much for that, now. My goal was simply to try to tell you, you know here, that I had an interest in this thing " and uh, if I could help, you know, guide you to where I thought this thing would, would legally could come, but now, you do what you, listen you do what you feel comfortable with, now, I don’t. I’m not, I don’t want you to do anything that you don’t feel comfortable " but I can assure that if you, if .. you know, if you come down on the side that, that my interest lies, that, that’s the end of it, that there’s no "
Lackey: He wouldn’t have to " uh later on use it for for any other purpose?
Balducci: No sir. He ain’t that way and let me assure you, as I told you the other day, uh, me and Scruggs, there, there’s bodies buried along the roadside between the two of us on plenty of deals and uh.. you know, even if he were inclined to such, he couldn’t and would but I can, and all I, that’s all I can tell you is that there’s I have complete confidence I wouldn’t never reached out to ya if I didn’t have complete confidence in that.
Lackey: All right.
Balducci: I wouldn’t put you or me in that situation.
Lackey said that he wanted to be sure that he and Lackey were on the same page, and Balducci said he did not want to make Lackey uncomfortable, "if it’s not somethin’ that you feel right about, then you know, do what your heart tells you. " Lackey says that he appreciates it and "had to talk to you again, and, uh [laughs] I wish you the best. "
Balducci says he has "complete confidence that this is completely fine. " They agree that they will be in touch.
- May 21st, Judge Lackey writes to Jones’s lawyer and Scruggs’s lawyer that he is recusing himself and that the hearing set for May 25th is cancelled.
- May 29th, Balducci and Lackey. Missing transcript
At this point, I don’t see how it can be said that the government has embarked on the supposed "outrageous " scheme to produce the crime. Lackey is still listening and letting Balducci lead. From the Balducci/Scruggs side, several things are clear:
- Scruggs and Balducci have made a conscious plan to hire a lawyer off-the-record to secretly approach the judge and give him a draft order without telling the other side. This is a completely outrageous breach of the rules.
- Balducci is talking to Judge Lackey in conspiratorial tones, talking about the fact that Scruggs can be trusted because Scruggs and Balducci had done things for years and each know where the bodies are buried.
There’s extremely clear impropriety but no offer of a bribe at this point.
Update described and additional comments:
2nd update: The May 4th Backstrom-to-Balducci email is mentioned in the government application for a search warrant of the Scruggs firm. I added that. The same day, I’ve added that Balducci faxed the order to Judge Lackey. That’s from the indictment.
I updated to add some procedural history that shows some timing: First, that the motion to go into arbitration was moving to a hearing on May 25th. The day the hearing was set, Balducci called Judge Lackey. Then, on May 21st, Judge Lackey has the conversation where Balducci talks about “bodies buried”, and Judge Lackey recuses himself from the case.
Some facts from Grady Tollison’s account of Judge Lackey’s story, which is found here, shed some light. First, there are a couple of details about that first conversation: That Judge Lackey thought the purpose was personal, that Balducci had some personal or family problem; Lackey noted that he’d known Balducci briefly when he’d practiced in Oxford as a public defender. Balducci said he was there about the Jones case, said unfavorable things about Tolison, and then said he was there “for his good friends Nutt and Scruggs.” He said that the best thing that could happen for Nutt and Scruggs was a summary judgment for them.
After faxing the order in early May, Balducci told Judge Lackey that there was a change in strategy, that the best thing to do was to delay the case because Jones was in a financial bind. Lackey did delay for six weeks, for two reasons: The request, plus the fact that the F.B.I. agent in charge was on a six-week leave for military service and wished to be involved on his return with the next phase.
It’s not completely clear from this account where the six week delay entered into this. I also wonder about what role the FBI agent’s decision may have had in the recusal/unrecusal. What is clear, though, is that the hearing was continued from late May and got rescheduled. The hearing occurred July 9th, which is roughly a six week delay from when it was originally scheduled.
So helpful, thanks. Is part 2 coming tonight or in the morning?
nowdy speaks for me!
So Balducci talks about “bodies buried” on both the 9th and the 21st of May, NMC, or is this a confusion of dates in the indictment?
I’ve always figured he meant it as some kind of assurance to Judge Lackey — “Dick and I, we good at keeping secrets.” But having Lackey’s introductory question “He wouldn’t have to " uh later on use it for for any other purpose?” makes that clearer than ever.
Overall impression here: “What a dingbat, that Balducci. Sheesh.”
WOW! The request to see Balducci’s kids while obviously contemplating putting their father away for a while grabs my attention and I wonder about motive. It has very little to do with the merits of the case but offers insight into the human comedy/tragedy that is playing in Faulkner land.
True, littl, one thing this story has never lacked-for is texture.
And of course now I’ve got a letch for good Mississippi peanut brittle. Rats.
On page 3 of the Motion in limine Judge Lackey is referred to as Balducci’s “longtime friend and mentor” – think that’s worth another WOW! At least I have a better understanding of “with friends like that, who needs enemies”.
Yeah, nowdy, Balducci first practiced as a PD in Lackey’s court in Oxford, didn’t he? Think I’m recalling that correctly. Anyhow, they went back some years together.
Thanks, NMC. When do you sleep????
nowdy-
Perhaps it is another instance that you are over my head but I interpret your post 6 to be saying that Judge Lackey is somehow at fault here.
The reference of “friend and mentor” was contained in a motion; work product of a lawyer, which is not evidence or proof, not here, not in any case. It is the words of an advocate for a position and should, at least in my mind be viewed as such. In other words, a lawyer trying to influence in favor of his position.
Assuming, without conceding that B did in fact look at the judge as a mentor then I would humbly suggest that perhaps the other side of the coin be considered: that Lackey was an honest judge and perhaps if B had spent more time concentrating on his mentor’s methods of handling matters then this whole case would never have happened.
You seem to fault Judge Lackey when it was B who approached him on the very day of the meeting with Scruggs to, from my way of reading and interpreting, “feel him out” as to whether he could be improperly influenced.
I can only view what I see through my eyes. Which of course see with the experiences that I have had seeing cases unfold, both in and out of the courtroom and being an advocate trying to get a jury to accept the position that I was advocating. I do not say that trying to elevate my opinion or interpretation, but simply as a bit of information as to the source those opinions and interpretations.
Quite frankly, I fully agree with your assessment of "with friends like that, who needs enemies "; I just hear it being said by Judge Lackey rather than Balducci.
This quote is instructive: “he and I can talk very privately about these kinds of matters and I have the fullest confidence that if the court "is inclined to rule in favor, everything will be good”
No specific offer of a monetary bribe has been made YET, but the above statement infers that one would be made if Lackey is receptive to it. And, keep in mind, that all of this has occurred after the Balducci offer of post-retirement employment made in the context of providing help to Scruggs on the order in this case.
Already, we have SERIOUS breaches of our legal ethics rules. And we have a non-monetary bribe offered, as well as the door being opened to more specific bribes. In essense, Scruggs, through Balducci (a lawyer who has not formally appeared before the court), is testing the waters with Lackey before jumping right in with an outright offer of money.
And at this point, it is clear from Balducci’s statements and answers to Lackey’s questions, that Scruggs knows about Balducci’s contact with Lackey with respect to gaining a favorable ruling on the order.
That’s what I read, AFOTL
I’m probably not going to get to part 2 (which I think will be Aug-Sept) until either late today or in the morning. I think there will be a part 3 (Oct-Nov) and that’s it. And then the gov’mt will render this all obsolete next week by releasing more transcripts….
Mighty good tide-me-overs you’re serving us, NMC.
Someone mentioned a judge in Tupelo getting a target letter yesterday. Could someone explain to me the whole rationale behind “target letters”. Are they done out of fairness to the “target”? Do guys dressed in black suits with sunglasses driving a black Crown Vic deliver them or do they just come in the mail?
In other parts of the US is it common practice to file a lawsuit as this one is UNDERSEAL? In Judge Lackeys lifetime on the bench how many of this type lawsuits would he have seen? Would it be out of the realm to question if he had been expecting some type of exparta …
A target letter is basically a letter to a person saying that they are being investigated and might be subpoenaed before the Grand Jury so they can start thinking about pleading the 5th. There is also a “subject” letter which means that you might be the subject of the Grand Jury investigation. I don’t think they have to send a target letter to someone they are about to indict if they are not going to call them before the Grand Jury. Here is a Department of Justice target letter http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00160.htm
any thoughts on why the gap from May to Aug?
Thank you, WC.
I saw some guys tooling around in a shiny black Crown Vic, wearing black suits and sunglasses a few days ago and wondered if they had target letters to deliver. Looked around for a lawyer’s office but noticed there was a funeral home close by. I imagine some folks are thinking to themselves “same difference” nowadays.
Much thanks for this useful show-and-tell, WC. And ducky, you ever considered a career in stand-up? You and Butter maybe?
I am way too slow-witted lotus, but thanky.
Jane’s the Dorothy Parker around here. I mean besides you lotus. (uh, all his taste is in his mouth?” Ha!
Thanks Duckweed. Love those Algonquin dudes.
Totally off subject, – I just started reading this book called “Charlatan” about a real, early 20th century patent medicine huckster. (NYT loved it). Anyway, at the end of Chapter 1, our hero, John Brinkley, meets his comrade in crime, one-armed James Crawford.
“They had a drink together. Crawford was twenty-three years old, from Oxford, Mississippi. He said he’d been the victim of a hunting accident – though even with two arms he hadn’t been any world-beater, as Brinkley soon figured out.
Still, he was company. Even better, he could be of use.”
Oxford, Mississippi. Ground Zero.
tired, I’ve about decided I’m the slowest typing blogger in the blogosphere – I’m hoping it’s a period of adjustment to typing in this little box.
At any rate #6 was an add-on comment to #3.
I’m beginning to understand that “lawyer think” is real black and white. Let me work on changing the way I say things in case I ever need one of you as a lawyer – lordknows I don’t want to get to court with one that says, “well, she might have…”
I’m not faulting Judge Lackey btw but I’ll have to come back in a short while and explain.
I’m gonna go check that book out Jane.
“Charlatan” is by Pope Brock. It has gotten rave reviews. I’m only on page 19 but am already impressed by the writing.
just read the janet maslin review in the NYTimes. It sounds fabulous. Saw a review of one of his earlier books too, Indiana Gothic (haven’t taken the html course yet lotus), which sounds wonderfully straight out of Mississippi even though it’s SUPPOSEDLY set in Indiana. I think they been down here poaching our Stuff. In fact I think I know some of those people….
the comments to that WSJ interview were pretty funny.
Actually, lawyer think isn’t black and white, noudoucit.
But here’s what is so: There are things that are black. There are things that are white. There are things that are grey. Put more in lawyer-terms: There are questions where there are clear answers and there are questions where there aren’t clear answers.
Sometimes we just don’t know, but that doesn’t mean that there aren’t answers. Here, we have some pretty well documented facts (transcripts for instance!) and some pretty clear rules that have been violated (the secret participation of Balducci in the case, the ex parte contact, giving the judge a draft order not shared with the other side). Lackey very appropriately responded when it started by going to law enforcement officials.
Any lawyer knows the answer these facts compel: That Balducci was an outlaw, not following the rules. And guess what, he’s done a guilty plea to judicial bribery.
To say: There is a definitive answer to the question of whether Balducci did something improper and illegal
is not to say “lawyers see only in black and white.” It’s to say some questions have answers.
There’s one other question answered by this post: Balducci claims to be acting on the authority of Dickie Scruggs, and makes dark statements about impropriety designed to make Judge Lackey think Balducci and Scruggs do this kind of thing and have an understanding about it. As I read their motions, the Scruggs team is willing to admit the 3/28 meeting at which Balducci was delegated to make an improper contact.
I also know that Scruggs has admitted to paying consulting fees to fact witnesses. That’s illegal. (another question with an answer). So I’m dubious about the methods I know he uses.
But at the point we are at in the narrative, above, drawing stronger conclusions than “Scruggs authorized improper contact of the judge on his behalf” would not be supported by the facts. Was Scruggs seeking early on to bribe Lackey? I don’t know.
Before they get to a bribe offer, a line is crossed when Balducci informs Lackey that he has an interest in the case. Has that already crossed from gray to black and white?
If Judge Lackey stopped it there and told Balducci he would not discuss the case, would the Judge be subject to any sanction or other problem if it were later discovered that he did not report the ex parte communication?
What if this had not happened in the Judge’s chambers, but in a more casual social setting?
Suppose, hypothetically, that a judge and an individual involved in a major case before the judge went duck hunting at the invitation of a mutual acquaintance and a little ex parte communication may or may not have slipped into the conversation? Is the judge obligated to notify all parties of any communication and/or recuse himself?
Answer to the first question is yes.
Answer to the second question: I think the situation is different because Balducci has done the contact secretly– his role in the case is off the record. That makes the contact even worse. If the lawyer were openly in the case, the judge can easily tell him to stop.
Lackey may have had more than one choice– an available option would have been to stop Balducci and then tell all parties the contact had occurred. But Lackey’s reaction was apparently (and with reason) that this was worse, because it came bound-up with an implication of reward and a tentative job offer. So he went to the authorities. That’s how it reads to me.
I think the answer is the same in a social setting.
Your last two questions: I don’t think a judge should be going duck hunting with a party in a case before him. Apparently, though, some supreme court justices operate with a different set of guidelines than I would.
Interesting. The duck hunting reference reminds me of the Veep and Justice S.
I was referring to the SC Justice and the VP, but did not want to name them because I was afraid that would trigger Google to bomb us with more AC ads.
Thanks NMC. I found your tutorial before I started typing the questions I came back to ask after struggling to find a good “class” over at the “Google School of Law”.
I kept getting search results in Spanish for “exparta” (#14) but I found exparte meaning the judge could decide alone without consulting the other party.
If that’s the case, why was a copy delivered to Scruggs?
I don’t understand the significance of sealing a case when it is filed – can you seal any kind of case? Who breaks the seal and when?
#16 IAG not much help about May-August gap all I noted waaaay back when things started coming out was Lackey ruled Dale could run as a Democrat on the 15th of May – I don’t have the day of the primary.
I also have note SF was “invited” to testify before a Grand Jury in August.
I have just added a large update to this post to incorporate stuff I was dealing with in the next post.
Whoa! Was that for this case USA v. Scruggs?
Somebody is about to face the Nuttcracker!
Are you asking me, belle? I think that was the one Hood called on the new case. I made a short lived valiant effort to keep up – had no idea there would be days when it felt like having paper airplanes thrown at you all day.
Yes, now, I was asking you just to be sure. I thought you might be referring to Hood’s GJ, just wanted to make sure. Thanks.
nowdoucit-
I believe that the use of the term ex parte here is simply a short hand way of saying that a representative of only one side of a law suit is present. And an ex parte communication meaning that a representative of one side of a lawsuit is communicating with the judge without the other side having knowledge of it. When the original suit was filed the judge could not decide the final issues raised at that point. If I understand your post you are apparently laboring under that misconception.
Suits are not generally sealed upon filing. It is a jurisdictional requirement that a copy of the suit be delivered to all defendants; so before the court could have jurisdiction over Scruggs a copy of the suit had to be delivered to him. I have NO personal knowledge as to why the case was originally sealed. I do have an opinion that makes good sense to me.
As you recall Tollison was (at least according to him) attempting to negotiate a settlement without litigation. My reading of the trail signs is that he asked that it be sealed for a short time so that Scruggs would have an opportunity to settle it, and if that was done then there would be no record of the suit. If it wasn’t settled then the case was already filed and could proceed.
If a case is sealed by court order it is unsealed by court order.
I have no idea if this helps but hopefully it does.
irate-
do you care to share???
Well Balducci does say he’s there for his good friends Nutt and Scruggs. Hmmm….
tiredlawyer–
you’ve got it about the lawsuit being initially sealed. Tollison filed it like on Wed., and did an oral motion that Lackey seal it, and at the same time delivered a copy to Scruggs, saying “you’ve quit talking so I filed suit, and now you have until next Mon. to resolve this or the lawsuit comes out of seal and goes forward.” The letter I just described is an exhibit to the Scruggs’s motion to dismiss, and the rest is all part of the record in the Jones case.
It’s interesting to note that aside from the Maria Brown lawsuit, Mr. Nutt and the rest of his broom closet commandos have pretty much managed to fly below the radar and thereby keep their names out of the newspaper.
This, in spite of strong indications that they too may be in violation of Judge Acker’s order as to the return of State Farm documents.
I thought I had read where they said they didn’t have those documents and that they did hand over what they had which later came out in public. Something like that.
that’s not what Maria Brown (former paralegal at the Nutt firm) is saying, bellesouth.
What Scruggs claimed is that they handed them over to Hood. Perhaps that’s what you’re remembering.
Belle, the broom closet at Nutt’s firm was where the ALLEDGED ILLICIT SEX went own. It probably happened only once and it was just a poor judgement call.
No, I believe I was reading affidavits in the case. They had like two pieces of paper and sent them, told everyone to delete any reference to them. They had e-mailed a copy so they preserved that one to show they had e-mailed it. Then later on, those two documents came out in the public domain. I think that was this case.
It could have been the other law firm that ended up taking over those claims??
Ah Ha. Derek Wyatt of Nutt & McAlister found on LegalNewsLine
tiredlwyr, re 39 Sad to say that I did labor but I never really got the concept at all – just the inspiration for a little siesta after my search results came up in Spanish!
Appreciate the help from all.
Interesting affidavit, Bellesouth– someone appears to be lying about this, either Maria Brown or Dererk Wyatt. That will make for an interesting battle in the Brown case!
NMC, did you see this from LNL today: State Farm continues quest for KLG disqualification
“State Farm is well aware that this Court found that State Farm had waived its right to seek disqualification based on ethical violations arising out of Cori and Kerri Rigsbys’ theft of State Farm confidential documents and their subsequent ‘consulting’ relationship with Richard F. Scruggs and the Scruggs Katrina Group,” the company wrote Thursday.
“This motion seeks disqualification based on the fact that SKG attorneys — including those who are still in this case — offered a different State Farm ‘insider’ and material fact witness in this case, engineer Brian Ford, thousands of dollars a month to ‘consult’ for them.”
snip:
In State Farm’s reply to the response from the KLG the company says the focal point of its argument is Ford.
I don’t regularly read Legal News Line, and in any event haven’t seen that yet.
Sorry, I know you’ve been busy feeding us juicy nuggetts for almost 24 hrs. here. And we’ve been anxiously awaiting part. 2. Just stick the links in your back pocket so they are there when you might want to look at them. Thanks for all your hard work. It is appreciated muchly.
Looks like Frankie hasn’t been paying his bills…
http://www.clarionledger.com/apps/pbcs.dll/article?AID=/20080215/NEWS/80215046&referrer=FRONTPAGECAROUSEL
Well, Belle, maybe I need to “read” his notes for them.
In a recent comment about note-taking habits, I pointed out note-takers of write notes to themselves – reminders of something they want to mention at the next opportunity – not just notes that record what others say to them.
The way I read the Ford’s notes, Wyatt explained Ford’s role in exacting detail. However, it was clear to me that he was telling Ford the only compensation would be reimbursement of his travel.
I then read notes indicating Ford wanted and continued to explore the possibility of other roles – and that Ford, not Wyatt, developed and submitted a proposal to SKG for “consulting”. At one point later in the notes, there is what appears to be a “reminder” to ask why there’s been no response.
State Farm’s constant “nit picking” is starting to make them look like the biggest tattle tale in kindergarten, not a corporate giant. IMHO it’s time for them to put on their big boy britches and deal with these matters like a man.
Wow! Thanks, I can see why KLG is so pissed. They just fling allegations about:
This is from Jim Giles’ website….
——————————————————————————–
Lee County Circuit Court Judge Thomas J. Gardner III denied today to Radio Free Mississippi that he had received a Grand Jury target letter involving U.S. v. Dickie Scruggs, et al. It had been rumored that Judge Gardner had received a target letter and Judge Gardner mentioned he was aware there are a lot of rumors floating around out there.
Be sure to remember, Belle, my comment is based on my reading – and that I simply found their understanding different from mine.
IMHO, without any other documentation it was simply two different understandings.
However, I thought it worth mention because my understanding is consistent with Wyatt’s statement.
I just made a small addition to the post– the May 4th email from Backstrom to Balducci, which shows direct evidence of Scruggs-firm participation early and does damage to the Balducci-on-his-own theory.
NMC, this is great work. Many thanks!!
Also added the 5/4 fax, Balducci to Lackey, same day, from the indictment.
who is P. L. Blake??
Welcome to folo, lvnlgd. Scroll up to the top of this page and try his name in the search box. That oughta bring you up to speed on him a right-smart.