Update here and below: An additional oddment from the Jones motions I saw today: A motion to admit pro hac vice for Brooks Dooley of Keker and Van Nest. There! With that addition, I think it must be said our attention to detail is still excruciating, now and always, which is particularly appropriate given my recollection that Mr. Dooley may been the one who penned that execruciating comment in the first place (I think he’s the associate mentioned in the hearing described in the last link). Some sort of circle is unbroken! More updates below….
The Scruggs defendants have filed a “Motion to Clarify” asking the court to make clear that they are facing only Jones’s actual damages and not criminal contempt or punitive damages. The argument that this can’t be a contempt proceeding seems right, and they cite some cases that seem to say that punitive damages cannot be awarded as a sanction. There’s other interesting stuff in the exhibits to the motion:
- Email traffic between Roy Percy (in the Tollison Law Firm) and Cal Mayo (of Mayo-Mallette, representing Scruggs) makes clear that the Jones side intends to call Judge Lackey, Zach Scruggs, Dickie Scruggs, and Sid Backstrom at the hearing tomorrow, and have them all under subpoena.
- The Jones side seems to commit in the emails to a definition of the sanction: That they want the answer and defenses stricken and a default judgment entered for the Jones side, and that they want attorneys fees and expenses, and that they are not seeking punitive damages. I’m not positive, but all this seems to point to a two-step hearing: Part one to determine whether there is a sanction and what the sanction is, and part two to determine how much Jones’s share should be. I’m guessing that his lawyers will start with the presumption of equal division and argue that they should get more than an equal share because they did more of the work, but that this will not occur tomorrow.
The Scruggs defendants filed a motion to compel relating to subpoenas, which I don’t have a decent copy of, and a memorandum in support of it. The motion seeks several things: To make the Tollison firm produce any evidence relating to contact with Judge Lackey to place the complaint under seal; any evidence relating to purported contact between Lackey and a lawyer in Tollison’s firm that led to Lackey’s brief recusal, and evidence the Tollison firm gave to the U.S. attorney’s office. The motion notes that the subpoenas asked for Ed Peters (!!) but that this was an inadvertent leftover from an earlier draft. We have previously discussed both assertions about ex parte contact from the Tollison side– here’s my post about the sealing of the complaint and why that did not seem to me improper, and here is the testimony from the FBI agent that Judge Lackey invented the ex parte contact to explain to Balducci why he was unrecusing himself.
All of this implies there will be a certain level of the personal to tomorrow’s hearing.
The Scruggs defendants have filed a motion to continue stating that Zach Scruggs, Dickie Scruggs, Sid Backstrom, and the Scruggs Law Firm corporate representative all intend to assert the Fifth Amendment, and will continue to do so until after sentencing, that they might want testimony from Steve Patterson, but he would assert the Fifth Amendment prior to sentencing, too, and so the hearing should get put off. Given that the hearing is still on for tomorrow morning, this motion seems headed toward denial, although I’m sure Scruggs’s lawyer will bring it up first.
The remaining Katrina group members have filed a Motion to Clarify Setting asking that the hearing be left open after it concludes on the 15th so that those defendants who are unavailable that day can testify via depositions on the 18th. I will note with frustration that this means that Nutt, Barrett, etc., will thereby avoid testifying about all of this in open court.
I’m missing a motion to compel from the Jones side. More in a bit.
Update: The Jones side has filed a motion to quash subpoenas which were aimed at getting lawyer information about contact with Judge Lackey. The Jones’s motion to quash argues that this hearing is just about sanctions relating to the bribery attempt. Here is Motion to Quash.
The Jones side also responded to the motion to clarify; I don’t have a copy of that response at present.
NMC: what time is the hearing? can the Fifth Amendment be asserted AFTER pleading guilty? I didn’t think it could.
This typical Scruggs stall tactics. The hearing has been set for a long time, yet they wait until the day before the hearing to file new motions to delay the evil day. Scruggs will never stop until someone takes his money so he can’t afford lawyers who will do anything for a dollar.
9:30 and yes, and there is more to say about all this. I just got another batch of pleadings.
E.g., a motion to admit one of the Keker lawyers for this hearing. And lots lots else.
Same question as Jsh, NMC — I thought the 5thA’s purpose is to avoid compelled self-incrimination, not to avoid due punishment once guilty pleas have established the incrimination.
When you say, “The motion notes that the subpoenas asked for Ed Peters (!!) … ,” did they mean his person or his documents or both? (WHAT an interesting error in drafting, no?)
Oh, I also meant to ask for a reminder of where Nutt, Barrett, et al. are gonna be being unavailable tomorrow.
No telling other than, like Brer Fox, they’ll lay low.
5th amendment question:
All jeopardy has to be at an end. That’s not the case here. I don’t seem them being forced to testify. OTOH, Judge Coleman can enter all kinds of presumptions against them based on the 5th Amend assertion
I sure got to thank J.C. Harris for this wonderful idea: Somebody judgely need to butt Dickie an’ them crank-sided, he do.
didn’t the judge rule they don’t have to testify while all the criminal stuff is going on? isn’t that in a discovery ruling related to the sanctions or did i dream it up?
Didn’t Dickie, Zack and Sid have to waive their 5th amendment privilege at the beginning of their plea colloquys in federal court? Like attorney-client privilege, isn’t it once waived forever waived as to the same matter?
it’s not waived forever as I understand it, somslawyer.
gearheart: I don’t think so. Judge Coleman was willing to give them about a month but not hold things up forever. That was my understanding of the import of his ruling.
NMC: do you think Biggers will hold this vigorous battle the Scruggs are putting up against the Scruggs when it comes to sentencing as the Bar contest will probably be? In other words, is this vigorous fight just more evidence that the Scruggs are not accepting responsibility? By trying to still win the result they tried to accomplish by bribe?
Do you know if scruggs, barrett, nutt have made any attempt to settle with jones? Do you think there will be any attempt at settlement at the hearing?
It’s been interesting reading all the intrigue in the MS judicial/legal system. I’ll chime in that, to the extent Dick Scruggs faces potential criminal liability other than that to which he has pleaded guilty, he would retain the right to invoke the 5th.