folo

At the start of the hearing, the judge said that he’d hear the motion to dismiss for outrageous government conduct first and then the motion to suppress.

The courtroom was almost full. Lots of media (Jerry Mitchell) and a lot of lawyers: Charles Merkel, Cynthia Mitchell, Bill Kirksey, Vicki Slater, Robert Wilson (all from the Wilson case), Norman Gillespie, John Hailman, Al Moreton (the last two former prosecutors in the US attorney’s office), Jim Greenlee, and others. I think Hiram Eastland was there.

The judge said he had granted oral argument, but noted that the defendants had asked for a Franks (evidentiary) hearing. Keker said he wanted one and wanted to call Balducci, Lackey, FBI agent Delaney. They argued about the propriety of a hearing. Keker emphasized an opinion Judge Biggers had written, Slattery v. U.S. Keker stated that: "As a government witness, Judge Lackey aggressively pursued this case and Mr. Balducci in a way that was very aggressive.” He emphasized that there were early meetings for which there was no recording, and he needed evidence about that. The most critical meeting was not recorded. This was the first meeting at the Scruggs office. In his plea colloquy he did not intend to corrupt a judge at this first meeting. There was no quid pro quo at the first meeting. It may be unethical in Mississippi or in fact anywhere to send Balducci to talk to Lackey but not a bribe or a crime. Another critical unrecorded conversation Keker wanted to ask about is the call from Lackey at the conclusion of that meeting. Keker stated that after the meeting with Balducci, Lackey spent 10 days to 2 weeks talking to people about what to do about the contact by Balducci. The next conversation with Balducci was not recorded. Then the FBI wired Lackey’s office. May 9^th: After this meeting, what Balducci is doing is over. Balducci has asked a favor, Lackey says he’s likely to do arbitration, it’s over.

Judge Biggers: How do you know Judge Lackey pursued Balducci for months? You haven’t talked to any of these people.

Keker: From the tapes. I want to make a factual record and pin this down. This involved the government creation of a crime out of whole cloth.

Bob Norman: The reason there are more calls from Lackey to Balducci than vice versa in the summer is that Lackey was tape recording calls when he initiated them, and not the other way around. There are no recordings from when Balducci called. Judge Lackey came to the government and said "I believe there is a bribery attempt afoot. "

Norman’s great line: "These defendants initially wanted to corruptly influence this judge for free. When the judge tested this criminal enterprise, they agreed to pay the bribe willingly. "

Norman noted that Balducci says that he was not thinking quid pro quo when he mentioned of-counsel in that meeting. Balducci says it was not, the judge felt that it was.

Judge: Do you not consider the offer of a job a thing of value and therefore a bribe.

Norman: Yes, but the government was still willing to test the defendants and see. The government conduct was reasonable and necessary.

Judge to Keker: I’m not sure what you are trying to elicit with this testimony. Is it this first meeting? What is it you want to ask him about? What specifically do you want to ask Balducci about?

Keker: In addition to first two phone calls, want to look into the government role in getting Lackey back into the case when he recused himself.

Judge: One thing militates against your motion. The charge you are making, according to the Fifth Circuit, is available only to those defendants with only passing roles in a crime and who did nothing active. There is a much higher burden than with entrapment There is evidence before the court that your client played not a passive role but an active one. I will allow Balducci’s testimony on three points: The first meeting in Scruggs’s office, the first meeting with Lackey, and Lackey’s recusal.