Judge DeLaughter’s case is going to be an interesting one for choosing a defense strategy. “Interesting” as in the supposed Chinese curse about living in interesting times. There are a couple of features to the indictment and to the known background of the case that are going to be trouble. If you want to re-read the indictment, here is my gloss on it, and here is the indictment itself.
Recall that Ed Peters was Judge DeLaughter’s mentor-and-boss when Judge DeLaughter was an assistant D.A. and Peters the D.A., and that the allegation here is that Peters was apparently working behind the scenes for people who wanted to influence DeLaughter once he became a judge.
Here’s some of the problems I see:
- That lie to the F.B.I. Yes, it’s only an allegation at this point, but the last count of the indictment charges that Judge DeLaughter told the FBI that he “never spoke to Ed Peters regarding…” substantive issues about Wilson v. Scruggs. Perhaps Judge DeLaughter thinks he can get into a semantic debate about what “substantive” means, but it’s clear that there will be testimony that he and Peters exchanged information, ultimately resulting in Scruggs’s team getting a chance to secretly edit opinions before DeLaughter issued them. There will also be testimony about meetings between the two to plan how hearings were to be handled. This is all going to be hard to explain away, particularly with a parade of pretty smart witnesses now testifying for the Government describing how it was done, and their testimony being corroborated by document exchanges. But that’s hardly the worst of it.
- That lie to the FBI pretty much ruins any attempt to say “it was all innocent talk.” The word for some time has been that Judge DeLaughter was going to try to explain that he didn’t really have evil intent, that he didn’t have the state of mind of being corrupted. The Government is going to be able to make a very strong argument that his lie meant he knew he had something to cover up. He knew it wasn’t innocent, or he wouldn’t have lied about it.
- The 404(b) evidence is going to be a real bear here. Folks who followed Scruggs I may recall that the prosecution was going to use the facts in this case as 404(b) evidence in the case about bribing Judge Lackey. Here’s what that’s about: The Government is allowed to prove “other crime” evidence to show mental states related to intent. In Scruggs I, to rebut any inference that Scruggs wasn’t the kind of guy who would bribe Judge Lackey, they were going to show he bribed Judge DeLaughter. In this case, the Government can show that Judge DeLaughter had a history of working out backroom shady resolutions of cases with Ed Peters to show that the handling of Wilson was not on the up-and-up. And the history is pretty nasty– Eaton v. Frisby (where there was similar off-the-record contact), and Kirk v. Pope, both among the cases the Judicial Performance Commission cited in suspending Judge DeLaughter from the bench. One interesting question is how broad the immunity deal with Peters may be: Does the Government have a witness on the shenanigans in Eaton? But in any event, DeLaughter is going to face some nasty “other crimes” proof in any trial.
- The mail fraud prosecution finesses the whole problem of DeLaughter getting none of the proceeds from Peters. There are those that thought Senator Lott’s phone call that he would consider Judge DeLaughter for the federal bench would be pretty thin in proving a quid pro quo for bribery, and it’s been reported that DeLaughter got none of the cash from Scruggs. But the government doesn’t have to face that problem– they’ve not indicted for bribery but rather for mail fraud, a charge that this scheme denied the state the honest services of a judge. If the Government proves the scheme outlined in the indictment, that’s kind of hard to argue against, regardless of whether any proceeds fell into the judge’s pocket. (I have an image of Ed Peters telling the judge: “I’ll keep all the cash, that keeps them from charging you with bribery, and then I’ll take care of you in the end.” He sure has taken care of his friend in the end by becoming a Government witness.)
- He’s not going to be able to explain it. Defendants like Judge DeLaughter often think they are going to be able to get on the witness stand and explain it away. DeLaughter obviously had that in mind when he talked to the FBI and (reportedly) testified before the grand jury. Criminal defense lawyers shudder at the thought. But here, with that lie and the 404(b) evidence facing him on cross, not to mention whatever the heck he may have said to the grand jury, there’s no way he’s going to be able to be anything but a disastrous witness in his own defense. I’m guessing he’s not as smart as he thinks he is, or he’d not be the last one standing when everyone else charged in public has already come in and entered a plea.
That’s my read on problems with defending this case. I’d love to know if anyone else seems some obvious ways across this minefield for the defense.
Uh-oh. I see Raymond, Mississippi, sticking out its tongue at you, NMC.
I know that mail fraud is extremely broad but I wonder if it has been used in this same context before?
Delaughter better cut a deal muy pronto. He’s going to have to serve up Ed Peters sliced, diced, and julienned. He’s going to have to lead the FBI on a narrated show and tell tour of the Hinds County civil and criminal dockets. Give it up, Bobby.
Wasn’t the former AL Gov Don Siegelman and the HealthSouth guy (Scrushy?) convicted on mail fraud and bribery (among other things) but I don’t know if that’s what you were getting at or not dd511dd.
This pattern of one case’s 404(b) evidence becoming the next case-in-chief promises a very interesting future, doesn’t it? Any number of [U.S. v.] DeLaughters, maybe a Hilburn, a Patton, somewhere along the trail, a Blake . . . and from there, God only knows. Ed Peters’ little black book could keep the MS USAs’ offices humming for the whole Obama era.
it will be interesting to see who emerges as his defense counsel. I don’t think it will be a “team”. He will be the poster child for difficult clients.
Thus, the cross look on Cynthia Speetgens’ face the other day. (Which of course reminded me of John Reeves.)
NMC,
The best defense is that you called Trent Lott to the stand. You ask him several questions…like were you the “bag man” for this scheme? Why weren’t you indicted? Did you do anything illegal? Wasn’t this simply your brother in law and Joey langston trying to give me up in exchange of keeping their tobacco money? Why did PL Blake get $50 million dollars for tobacco for reading newspapers? How did a non lawyer get paid lawyer fees? Lott will take the 5th probably and then you can get into several items with him? Like, Didn’t Dickie do this all the time in Pascaguola? Didn’t Dickie, Joey, and Ed get mad at him for not taking the money? You didn’t lie about giving me the judge position did you? You make Trent worry about uncovering more of Dickie’s actions vs. perjury. Then you look at the jury and say either this is selective prosecution or Trent Lott and I are innocent.
“I have an image of Ed Peters telling the judge: “I’ll keep all the cash, that keeps them from charging you with bribery, and then I’ll take care of you in the end.”
BINGO. There was no way they could guarantee him a federal judge appointment —- all they could do was promise consideration for a nomination — and BD was smart enough to know this. Thus, it seems likely that there was a promise of money further down the road, to be held by one of the “fixers”/bagmen — Peters (ala PL and Patterson).
I would be very interested in knowing exactly when Peters reported the money he received from this deal (approx 1 million) for tax purposes. From the forfeiture, we know that he must have reported it and paid taxes at some point. The forfeiture pleading indicated that approx $450k was left of the money, after taxes and stock market losses. My guess is that he did so only after the revelations re Scruggs broke in November of 2007. And I suspect that he was not originally planning on reporting it, but attempting to grow it into a bigger pot to split with the appropriate folks later.
My guess is that he did so only after the revelations re Scruggs broke in November of 2007. And I suspect that he was not originally planning on reporting it, but attempting to grow it into a bigger pot to split with the appropriate folks later.
A good guess there, afotl.
Another underlying issue here is likely Delaughter’s state retirement. Would he lose his state retirement if he were simply removed from office by the Judicial Performance Commission and disbarred by the State Bar? Because such a consequence, at the very minimum, is likely to be a result of this mess due to all the extremely improper and unethical ex parte contacts with Peters and others on cases before him. My guess is that this type of result, absent criminal conduct, would not strip him of his right to his state retirement.
What about a conviction or guilty plea on a felony committed while in the employ of the state while engaged in the rendering of state services? Would that cause a person to have to forfeit his state retirement benefits? If so, then at least part of Delaughter’s motivation to not enter a plea deal may have been this issue. IF he is stripped of his robe, bar license, and retirement benefits, what is he going to do? His “risk” in defending to the end and losing appears to simply be how much jail time he might get. It doesn’t sound like he has much more than that to lose at this point (other than some defense atty fees).
Hot Rod:
In Scruggs I, prosecutor Tom Dawson announced that Trent Lott would be a Government witness on the 404b evidence involving this case. So he’s going to testify most likely, but for the Government. Now, I can see pointed questions to him from DeLaughter’s lawyer that establish that Lott’s motivations in making the call were as pure as the driven snow and motivated only by concerns for quality appointments to the federal bench.
Writing that made me want to throw up, btw.
AFOTL:
The reason I think Peters reported the $950K is this: the wire transfers were all themselves reported to the IRS automatically, weren’t they? So he’d know he was being watched, and probably just reported it as a legal fee.
Now that $50K in cash, that’s a different question. I’d be surprised if that got reported.
AFOTL asked about whether DeLaughter’s PERS account was at risk. I sure hope that this kind of behavior on the job would put it at risk, but don’t know. Anyone?
All wire transfers are auto-reported to the IRS? I didn’t know that. Interesting.
NMC, I think you are right about the bulk of that money being transferred to Peters from Langston by wire transfer. I had forgotten about that. And I do believe that amount would trigger a report to the IRS. What they would actually do with it is an entirely different speculation. (Under the new “innocent mistake” standard set by the IRS in practice, who knows …but, I digress).
But, he could have put the money initially into his lawyer trust account, and then held it there as “client” money, only reporting legal fees for tax purposes as it was paid out. On the surface, such could appear to be legitimate to anyone engaged in any casual review or loose monitoring of such from the IRS.
It will be interesting to find out when Peters reported this money as income of any type for taxes — all at once, spread out, etc. ? IF there was some promise of money to Delaughter in the future from these funds, I bet the money trail of this loot from beginning to forfeiture will come out during the trial.
Ed wasn’t going to share the money with anyone. Delaughter’s rationalization didn’t work with the prospect of anything except the shot at the federal bench. As long as he was merely getting a political favor while making an arguably fair decision, his twisted mind believed he wasn’t doing anything wrong. Sounds ludicrous to us, but I really believe it went that way.
What a mockery of a democracy. This is not to say Delaughter, Balducci or Backstrom did no evil or heard no evil, but we know they were mearly pawns of Lott, Scruggs, Langston, Patterson and Peters.
“As long as he was merely getting a political favor while making an arguably fair decision, his twisted mind believed he wasn’t doing anything wrong. Sounds ludicrous to us, but I really believe it went that way.”
If you look at this one case in a vacuum, I suppose one could accept that this “political favor” was the only thing promised. BUT, what about the other cases involving Delaughter and Peters (as referenced by NMC in his post)? What was Peters getting, and what was Delaughter getting? Was Delaughter’s motivation in all these cases this one promise for a political favor? That is hard to believe.
Pawns? No way. Criminals acting for personal gain.
Little irony here. Anyone other than me recall the title of Dylan’s song about Byron Beckwith?
“Only a Pawn in Their Game”
“Oxford Town” by Dylan is also a good song about Mississippi, but one that makes me cringe a little bit each time I hear it.
Looking quickly through the PERS statutes, I see no provision for forfeiture of vested benefits in the event of conviction for malfeasance in office. Since PERS is a contributory plan, I don’t think that one could legally be divested of the contributions that one made and the earnings on those contributions. That would not preclude forfeiture of any matching contributions, but I don’t see any provision in the law creating such a penalty.
Not saying Delaughter is innocent of anything, but in accounting it did not take me but a few lessons to learn only leave a paper trail for those you wish to see your work.
Someone once said (I think in Folo) that there is an attorney in the U. S. Attorney’s office in the Mississippi area who has vanity license plates on his car. The plaints say “404″ or “404(b)”. That true, and if so, what is the name of the attorney? Does he/she still have the plates?
What bothers me about all this is the triviality of the punishment for undermining the public’s confidence in our judicial system and corrupting the courts. Will the defendant get two years? Three years? Or, horror, 5 years in a minimum security federal prison where, if I am to believe a T.V. show I saw last night, if you are paying the costs of incarceration you can have your own cell and a number of other perks.
I realize we can’t expect legislators to put teeth in any statute they routinely violate, but what about a state referendum for – say -25 years minimum, and mandatory state prosecution to follow any federal conviction?
Seriously, the only lesson we are learning from this mess is that crime pays, and pays even if you’re caught. I try and conduct myself ethically, I don’t lie, I don’t cheat, I don’t steal, I turn in money I find on the ground, but if I thought I could get ten million dollars in exchange for at most 5 years in a federal penetentiary and a $250,000 fine, particularly if I only had to rule the way I’d planned in any event, I’d be very tempted. I realize to escape the public ignominy of my neighbors (or not, witness Langston letters) I might have to leave Mississippi and move some place like the Riviera or the Caymans, or – sob – Rio De Janeiro, but I could tough it out. I bet most folks could as well.
Is my reality meter really so out of whack, or does anybody
else see it this way?
Yep, NMC told that once, Steve, or quoted a news story that did. I think it’s either Tom Dawson’s or Rob Norman’s plate, but NMC can prolly tell us for sure.
I can’t name any amount of money I’d swap for X years in prison, meanderline. But that’s just me.
the meager sentences bother me too. In those same courtrooms, kids received mandatory-minimum 10 year sentences for carrying dope for the bigger fish.
it’s retired prosecutor Tom Dawson with the vanity plate.
NMC, Let’s say Ed has been holding something over BBD’s head for, let’s say, manufacturing evidence in the Beckwith case or something along those lines, and Ed has been threatening to expose BBD for it….as a result, BBD has been ruling in these cases (with no apparent benefit) at Ed’s direction for Ed’s benefit…if BBD is willing to admit such a thing, he might be able to assert duress as a defense.
Is “I was being blackmailed” a defense to entering into a conspiracy?
I think Hot Rod @8 has Delaughter’s defense strategy nailed. I would think it would be worth a series of hung juries, if not an outright acquittal if Trent Lott gets up there and claims he didn’t do anything out of the ordinary and that he had no idea he was being “used” by Dickie in the manner the Government claims. Who would believe that?
sure NMC. Why not on the right facts?
I don’t see “I had done something wrong was covering up and to avoid exposure, I joined into a criminal conspiracy” as a defense so much as an admission of another crime leading to the current one, but maybe I’m not understanding the duress argument.
Yes yes yes HotRod is on to something. Would love for a jury my age to have a good defense team “For show and tell” day. The Goverment will have the upper hand in what can be let in, and if I was a gambler, I’d bet Tobacco will never see the light of day, nor will we see Trent Lott.
isn’t an element of conspiracy that one enters into it willingly? If his entry into the conspiracy was duress of any kind, its conceivable that its a possible defense. If I were a juror, it wouldn’t fly with me, but I’m old and cynical.
Isn’t duress only a justification for a criminal act? , And I thought that those who put themselves in the situation, where duress could be used to force them into the bad act, couldn’t use it as justification for the bad act charged. Isn’t it a very limited justification too? (Note I am not in practice of criminal law.)
Soms @ 24 we need to get the Rep from Columbus to introduce some more legislation to fix that.
Manderline @ 27 our only hope is that Big John will wear that tail out. Dickie looked like he had been rode pretty hard.
DLM, the charges require the government to prove “willfully with intent”, so if he wasn’t acting of his own will, he could claim lack of intent and probably get a jury instruction on same.
BNS @ 41 – Gotcha as to the actus reas on the charge. Just don’t understand how Judge Delaughter meets the requirements to use duress a justification for the act(s).
Bobby DeLaughter can’t use a duress defense in this case. Here’s the Fifth Circuit standard for proving the defense of duress, quoting most recently U.S. v. Dixon,,
413 F.3d 520 (5th Cir. 2005).
“To succeed on a duress defense, this court requires that the defendant show:
1. that [she] was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury;
2. that [she] had not recklessly or negligently placed herself in a situation in which it was probable that she would be forced to choose the criminal conduct;
3. that [she] had no reasonable legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm; and
4. that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm.”
He won’t have the facts to get such an instruction.
As to the people who think Trent Lott is DeLaughter’s out: Are you saying that Trent Lott’s testimony (assuming it’s that he made the call in all innocence because his brother asked him to make the call, and for no other reason, and that DeLaughter’s name was never in contention to make the cut)will justify in some way a jury’s decision to ignore testimony from Scruggs, Balducci, Peters, Langston, and Patterson? If that’s what you’re saying, I guess I just don’t buy that will work.
I understand the folks citing a duress defense to be saying this:
Peters had something on DeLaughter that would have been a problem if exposed, and Peters used that to blackmail DeLaughter into doing illegal stuff.
How could that possibly be duress?
I believe your case clears things up quite a bit. No duress instruction.
So: Except for whatever stems and seeds may remain of his PERS account (if soms’ 24 holds up), Bobby’s got exactly nuthin’. As hard as it is to understand why he let this happen, it’s even harder to get why he’d want to exacerbate it further now. Best I can tell, only Ben Cole’s advice at 3 makes the least sense for him.
Now, what lawyer gets to tell him that?
NMC, I don’t think BBD will prevail under a duress defense, but it is certainly viable, especially when you consider how defense attorneys prepare defenses…they usually start with the law and try to find a way to make the facts fit the mold…many things can be said about Ed Peters who has been investigated for a myriad of crimes. Taking money from drug dealers for starters…
That lie to the FBI. This is tangential to this thread, but if it were up to me, the jury would NEVER hear about that UNLESS it is recorded. In this day and age of very cheap video recording devices, it is absurd that the premier law enforcement agency in the world does not videotape and audio-record statements from witnesses. Not saying it happened in this case, but FBI agents have been convicted of fabricating statements. That’s more difficult to do when it is on videotape.
And while I am beating this horse, I might as well add that this is not the type of prosecution that the mail fraud statute was ever intended for. The danger with federal law enforcement these days is that they find a statute and stretch it like a rubber band to encompass conduct the statute was never intended to encompass.
I wish that they had done that in the cases so far, Observer, and managed to find and encompass such statutes that would have involved much heavier sentences for the crimes against society that this bunch have conspired to commit.
Observer, it won’t be up to you and a jury will hear it if the case goes to trial. FBI agents will not be considered giving perjured testimony by the trial judge. The jury can believe or not believe what they say, but it will be heard.
That said, I agree that their reasoning for not taping statements ["we get more information from witnesses by not using an intimidating tape recorder] is horse****, as is their reasons [unknown to me] for not getting signed statements as ALL other LEAs do.
Observer:
I agree that there’s something wrong with the FBI’s refusal to tape. The whole thing of having an agent there taking notes in “FBI style” is as intimidating as any recording device could be. There’s no excuse for not taping.
I don’t completely agree with your gloss on mail fraud, while acknowledging it is a debatable point. I’ll probably do a free standing post on that. I’m torn enough about it that it’s the sort of thing that writing a post may change my views.
I’m torn enough about it that it’s the sort of thing that writing a post may change my views.
You too? I so often have reason to repeat “How do I know what I think until I see what I said?”
So, NMC, are you saying that Trent can maintain his innocence as the linchpin of this crime, and somehow a jury will conclude that Delaughter was guilty on his end, and Dickie was guilty on his end, but the connection between them was completely unaware? I think Cynthia can make more of Lott’s “innocence” than you give her credit for making, and I think jurors are much brighter than you seem to think.
I don’t fully understand how Lott maintains his innocence, just what Dawson said in court– that Lott was a witness, not a subject, 3rdS.
There are reports (noted above) that Lott did know that the case was before DeLaughter when he made the call at Scruggs’s request. I’m not sure how much more would need to be proved to show Lott was guilty of something, but Lott’s innocence isn’t what’s in play.
If you’re right, it sounds like we’re going to get a trial in Scruggs II. Will be entertaining. It just seems to me this reed is a thinner one than it seems to you.
oh, and I didn’t hint I think juries aren’t bright. there are some things they do quite well.
At a seminar this past year I asked Bob Norman during the question and answer session why the FBI refused to record statements or allow us to record. His response was “good question I wished they did, but you have to asked the FBI why they don’t”. If I were a prosecutor I would tell FBI no recorded statements no prosecutions based upon 302’s alone. I have been present first hand (representing witness) when FBI tried to claim witness said something he did not. Threatened him with 1001 false statement. Alas I was taking very good notes and when I showed them the quotes I had written verbatim (several times on the issue) they backed off. I firmly believe if I had not been present and taking good notes my client would have been coerced into testifying against his boss to something that was not true. Not all FBI agents would stoop to such but one bad apple spoils the entire bunch.
I’ve also, Tim (at 57), when I was taking notes during a client’s interview and the “other” FBI agent was doing likewise, paused every few minutes and said, “let’s make your your notes and mine are in agreement on what was just said.” That’s as close as I’ve ever gotten to what you’re advocating (taping). It’s when the poor bastard is sitting there by himself without a lawyer, with one FBI agent asking questions and the “other one” taking notes that he’s left at the notetaker’s mercy.
IF Delaughter repeated the same lies he allegedly told to the FBI during the investigation, during his testimony to a grand jury, under oath, then the alleged statements purporting to be a “lie” and amounting to “obstruction” should be well documented, on tape, and in a transcript prepared by a court reporter. Thus, the govt. may not be just relying upon some FBI notes to establish the obstruction related charges. There may be some pretty strong supporting evidence.
BTW, where was all this empathy during Scooter Libby’s trial? If memory serves me correctly, he was tried on obstruction charges — lying to the FBI during an investigation.
all this empathy
All what empathy, afotl?
AFOTL:
This isn’t empathy for anyone for me, or lack of empathy. I think the FBI’s self-created mystique about their note taking method is not a good thing, and would prefer an actual recording.
This very case has an excellent example, where Balducci remembered telling something to the FBI in Dec. 07 different than the FBI’s final memo. The difference was material (and not something that mattered personally to Balducci). I had the sense listening to both the agent and Balducci on the stand during the motions hearing that Balducci was right. No one suggested either was testifying other than to the best of their recollection, but the difference mattered. Why not a tape recording?
I don’t have a problem with a tape recording. IMO, that indeed should be done, especially if there are going to be prosecutions based upon any “lies” told to the FBI. My point is that these type prosecutions are not really new —Martha Stewart also comes to mind. Why is everyone in a tither about them now?
Of course, I don’t think there is much doubt that Delaughter took the position —probably multiple times — that he had never had any improper contacts with Ed Peters or anyone else about any material or “substantive” issues in the underlying legal case —regardless of the words actually used by Delaughter. I think I recall seeing such quoted statements from Delaughter in some early newspaper reports about the matter. Semantics, or alleged faulty note taking by the FBI, won’t likely get him out of the obstruction charge.
But with a recording, the U S Attorney can’t hold up a 302 with a witness on the stand, before a grand jury, never intending to show it to the witness or the grand jury because it doesn’t say what he’s implying, and say, “Isn’t it true you said X to FBI agent Y” when nothing of the sort took place. I’m not saying it’s a bad interrogation technique, but, like waterboarding, it has its critics.
ThirdSouth@54 I can easily imagine that Lott had no knowledge of any of Scruggs actions.
To believe Lott was involved, you have to believe Dickie went to Lott and said something along the lines of “I am trying to influence this judge in Hinds county to rule in my favor and it will save me about $12 million. The only thing is, you have to give him a call and tell him he is being considered for a federal judgeship”. Lott’s response should have been “Don’t be such a dumb@$$, Dickie. I can’t do that”.
In the real world, prior to the FBI searching Dickie’s office, it easy to imagine that Dickie, the world-famous slayer of tobacco companies, tells Lott, “There is a very qualified judge in Hinds county. He prosecuted Beckwith. He should be considered as a federal judge”. And, Lott’s response should have been, “Your right. I will put him on my list”.
Also, NMC@44 implies that Scruggs was the only one to suggest Delaughter. Is that true? I would think more than one person would have suggested Delaughter based upon his Beckwith case alone.
Wanted To Be A Lawyer, at 64, what’s your position on the Tooth Fairy and the Easter Bunny?
They exist. In my house they go by the name of WantedToBeALawyer.
Santa Claus, too. Especially Santa Claus.
All three (the TF, EB and SC) are more plausible than Lott having no knowledge of venality Dickie’s actions when he called Delaughter.
On December 10, 2007, being interviewed by FBI agents, DeLaughter stated “that he ‘never spoke to Ed Peters regarding…’ substantive issues related to the case of Wilson v. Scruggs at a time when said case was pending in his court, when in truth and fact he had corruptly discussed with Ed peters substantive issues in the Wilson v. Scruggs case on numerous occasions…”
I just noted where the quotation mark in the indictment stops: before the words “substantive issues.” Makes me wonder what DeLaughter’s exact statement to the FBI was…