folo

Overcast here keeps me from confirming this, but it’s gotta be full moon — or reported sightings of Frank Melton anywhere but in federal custody as a convict, Ed Peters out to lunch with Robert Shuler Smith, and Zach Scruggs strolling the Square in Oxford couldn’t be happening.

However, as Chris Joyner makes plain, the jurors in U.S. v. Melton agreed on zilch. “It was rough,” one who identified herself as “Martha from Hattiesburg” tells him.

“We did all we possibly could. … I read the jury instructions so many times, my eyes were bleeding. I felt very strongly about the decision I made. I believe we’re all sorry we couldn’t give the people of Jackson more.”

She said the jurors were split by votes that varied on the different counts. She said there was no 11-1 vote on any count.

Frank Melton allows,

“It’s nothing to play with. There’s no room for arrogance. I felt very humble. I’m never going to put myself nor this city in that position ever again.” …

“I’m so sorry the people of Jackson have had to go through this, but I appreciate their prayers,” he said. “I’ve learned a great lesson. I’m just used to being Frank. I’ve had to come to the reality that every decision I make affects a lot of different people.”

It’s taken him close to 70 years on earth to learn that? Ya think he’s got it yet? I’m rather more inclined to buy what Evans “Bubba” Welch says:

“I feel like they let a criminal continue to walk the streets. They shouldn’t convict anyone in the state of Mississippi until they convict him,” he said. “I don’t want to hear any more about this trial until he is convicted.”

Hold no breath for that one, Bubba, according to the C-L’s sidebars:

• Few people in support of another Melton trial
• Mistrial, possible retrial complicate politics
• Mayor vows to keep serving amid calls for resignation
• melton timeline
• Analysis: If Feds opt for retrial, expect more of same
• The mayor’s trial ultimately was a long, winding road to nowhere

Plumping up our “Forget it . . . it’s Mississippi” file, dmwriter points out the AP story reporting that

… [d]uring a telephone interview Tuesday, [Hinds County District Attorney Robert Shuler] Smith initially wouldn’t say why he met with [his predecessor] Ed Peters, who has been called an unindicted coconspirator in the biggest federal bribery investigation in Mississippi in years.

“It’s nothing sinister,” Smith said, adding there is nothing improper about meeting with a witness who has been “granted immunity” in a federal case.

After initially declining to say what they discussed, Smith later called The Associated Press to say the two were talking about a letter Smith wrote to Hinds County judges about race issues. Smith said the letter was published in the media last month and Peters called him to discuss the way different issues arise for white district attorneys as opposed to black ones. Peters is white and Smith is black. Smith said they decided to meet at a restaurant in Brandon in Rankin County owned by Peters’ son. Both men live in neighboring Hinds County.

Peters’ attorney did not immediately respond to a message. …

Doggone your recognizable mugs, boyz. But “the way different issues arise for white district attorneys as opposed to black ones” — oh, what we’d give to hear Ed Peters’ disquisition on that, right? Do any wait-staffers at the Peters boy’s restaurant read folo?

And yes, Habeas porpoise, as a matter of fact, I did hear that Zach Scruggs was home in Oxford yesterday, spotted walking around the Square. Also that he’s being sent to a halfway house to get ready to re-enter society and has lined up a post-release job in DC as a lobbyist with Uncle Trent. Further, that he showed up at a service at Judge Lackey’s Calhoun City church before he went off to Arkansas, the putz.

Dickie’s still in jail in Oxford too. Seems mighty early into Zach’s 14-month sentence for this kind of activity (if true), but I suppose Daddy’s New Deal could include an early out for him — which, given the Zach Scruggs we’ve seen, I won’t count as a social good. He’s the kind that something’s liable to land back in an orange jumpsuit before he’s through — others having more hell to pay on his way to it, of course.

Now, a commenter on the Shuler-Peters story surmises at the C-L, “… with Dickie talking and perhaps PL, our [state] AG is probably just hoping that federal marshalls [sic] don’t appear in his office with an indictment.” We’ll see about that, and not only as to the current MS AG. Everything depends on who’s decided to say what for how much leniency.

Anyhow, to sum up: be it literally visible or no, all this crapola argues that Mississippi is under the fullest moon it’s suffered in many a year. Look sharp, everybody.

UPDATE: Patsy Brumfield:

Zach Scruggs, convicted for his part in the scheme to bribe Circuit Judge Henry Lackey of Calhoun City, apparently is out of federal prison and assigned to a community work facility in Montgomery, Ala.

His custody location is noted on the U.S. Bureau of Prisons’ web site, www.bop.gov.

Recent speculation was for him to reside at Tupelo’s Bureau of Prisons half-way house and commute daily to Oxford for work.

Work? What work?

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Since we apparently already know as much as anyone outside the principals about what happened in U.S. v. Melton Saturday, I’m linking Blair Goldstein’s report in the morning Clarion-Ledger for its comment-thread rather than the story proper. ‘Pears we’re not the only ones wondering what the C-L sees in Matt Steffey.

The headline and lede sentence of Jimmie Gates’ story on recently-heightened activity of the Mississippi Commission on Judicial Performance come close to wrong-footing the reader. After quoting JPC executive director Brant Brantley talking about “an increase across the board” in complaints (due, he suggests, to Dickie Scruggs’s scandals), Gates says that actually 265 of the 322 filed in 2008 (54 more filings than the previous year)

were dismissed as matters for appeal or for insufficient evidence of judicial misconduct.

But the commission initiated 23 formal complaints against judges in 2008, meaning it recommended some action against the judges.

The commission made six recommendations to the high court for punishment against judges, including one to remove then-Leflore County Court Judge Solomon Osborne from office. …

In addition to actions against Osborne, the commission sought suspensions of Warren County Justice Court Judge Richard Bradford and Lee County Justice Court Judge Pat Carr. Two other judges faced public reprimands.

Justice Court continued to generate the most complaints (though the same number in ‘07 and ‘08), but

From 2007 until 2008, the largest increase was in the number of complaints against state Supreme Court judges. The number of complaints increased from three in 2007 to 36 in 2008.

But Brantley said the figure could be misleading because most of the complaints were based upon rulings made by the justices, not misconduct.

Also, the number of complaints against Circuit, Chancery and County court judges increased.

[JPC member Rankin County Justice Court Judge John] Shirley said it should be remembered that anyone can file a complaint, but whether it has merit is the key.

Maybe if they’re all catching more grief, some public apathy is breaking up?

The C-L also runs a brief AP item about what may be an “Erin Brockovich situation” developing in Greenville — any of y’all know more about this groundwater-contamination claim against Platte Chemical? Bears watching.

This is three-day-old news now, but the Sun Herald still has up its announcement that Haley Barbour appointed Ocean Springs attorney G. Charles Bordis IV to the Chancery Court seat that Bubba Pierce vacated upon his election to the state Supreme Court. Have you views on new Judge Bordis’s fitness for office, favorite tie-color, or whatnot?

The DJournal has a little bitty AP story quoting Haley doing his best Bobby Jindal imitation on the stimulus money (which of course is just posturing, since Billy McCoy has a say in the matter too) — but its more interesting story is Emily LeCoz’s profile of Allen Stanford co-defendant Laura Pendergest-Holt. She’s said to have “a killer combination of beauty, brains and connections” — and note in what order.

Daily Journal

Many teefies too.

If you hurry (well, in a Mississippi sort of tempo), you can prolly catch Alyssa Schnugg’s story about the upshot of ADA Tom Levidiotis’s “if the grand jury says he needs killin’” idiocy in Christian Bonner’s murder case. I guess the grand jury just decided he needed two more charges that might tack 18 years onto his (potential) life sentence. A funnier part has to do with where jailers found Bonner’s cellphone . . .

Bring anything else that interests you, and I’ll browse the wider-scope news a bit after me breakfast.

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If you read folo, you’re almost certainly a news junkie — possibly you’re here only because you’re a foodie, a bluesie, or a pettie, but I doubt it. And folo is a comparatively unusual news-following blog, in that we have NMC, an on-the-scene (when the scene is Oxford, Mississippi) subject-matter expert whose original reporting frequently breaks real news.

But most newsblogs are more like non-Scruggs folo: published by an individual or small group of unpaid posters who, no matter how interested, are rarely positioned to do the actual reporting themselves. They can only aggregate and comment on reported stories of interest to them, and if they do a good enough job to draw a sizeable readership, their readers sometimes take it from there to exert leverage on government officials. But what happens when the sources they rely on for their fodder dry up and blow away?

Recall our travails last week with the Beckwith Gun story. After fascinating but conflicting versions, we finally got hold of a first-hand source, a former C-L reporter who described how his digging pried the damned gun out of the Moore/DeLaughter closets where it sat hidden for 30 years. But that knowledge came our way only because “C” put us in touch with Michael Rejebian. (And not even Michael can resolve the question of how Judge Russell Moore originally came by the rifle; most likely, anyone who saw that happen first-hand is dead now — or at least not in touch with folo.)

But here’s the deal: We folo posters couldn’t do that reporting, and the Gannett-paid C-L reporters of today wouldn’t do it. So where does that leave us?

Here —

Goodbye to the Age of Newspapers (Hello to a New Era of Corruption)
by Paul Starr
Why American politics and society are about to be changed for the worse.

This is a long but terribly important New Republic article that I’m most interested in hearing your reactions to. It concludes:

News coverage is not all that newspapers have given us. They have lent the public a powerful means of leverage over the state, and this leverage is now at risk. If we take seriously the notion of newspapers as a fourth estate or a fourth branch of government, the end of the age of newspapers implies a change in our political system itself. Newspapers have helped to control corrupt tendencies in both government and business. If we are to avoid a new era of corruption, we are going to have to summon that power in other ways. Our new technologies do not retire our old responsibilities.

Best I can tell, BoynamedSioux summed up the Clarion-Ledger very well yesterday:

… In the last 5 to 6 years, it has steadily declined in every aspect: reporting, management, and viewpoint. Its a very weak excuse for a newspaper at this time.

Yes it is, but for now it’s still most people’s best source of information about government, business, and the rest of life in Jackson and Mississippi. This P.L. Blake story that the editors put into print but not online yesterday gave us a preview of what’s coming: Almost all of us reading here had to take NMC’s word for what was in the article.

So that’s what looms ahead — as in much earlier times, a very small number of in-the-knows will control what the rest of us find out. Though in this example, NMC is trustworthy, what if your only source of news came down to something like Rupert Murdoch’s Fox? McCain-Palin represents the quality of government we should expect everywhere, not just in Haley Barbour-and-Butch Brown Mississippi.

Newsblogs can’t be the answer. Because, like almost all others doing what we do, NMC and I haven’t figured out how to generate a revenue stream, folo has provided me only a great diversion (and some delightful friends!) while going stone-broke. And I’m hardly alone — as Paul Starr documents, the newspapers themselves are leading the way down (note how PajamasMedia rode along to its recent crash). But as Starr more importantly points out, when stores lose their minders, the corrupt take over.

I don’t know. Maybe some things will just have to fail before the pain of loss elevates the perceived value of robust reporting and America figures out anew how to support it. Whether folo survives in its present form, or at all, to see that is for me an unhappy question.

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This post’s title would only take slight tinkering to be mistakable for a Dickens novel.

Perhaps he’s home (above), pondering what comes next. Perhaps he’s in some hunting camp in the delta, awaiting pensively (but that sounds more self-reflective than my image of a man who couldn’t remember why he got $50M. Hey– that’s it– he’s sitting in one of these places trying to remember enough so that he, too, can become a government witness! If that’s the case, too bad about all that sworn testimony where he didn’t remember– it’ll make great fodder for cross-examinations).

But anyhow, here’s the house of P.L. Blake, in honor of today’s Clarion Ledger story, which reports what I’ve heard at pretty reliable close hand: That the next round (which would be one of the things up for the March 23rd Federal grand jury, presumably) is about Mr. Blake.

What did we learn from this story? That Jerry Mitchell has not misplaced Matt Steffey’s phone number (note today that the Clarion Ledger features the prof in two front page stories about two different cases!). That, in contrast, Mr. Blake does not have anything to say to the Clarion Ledger. That Scruggs is still in the Lafayette County Detention Center and may have something to say about Blake, only to the grand jury and not the Clarion Ledger.

And then there’s this:

Political observers say if Blake is cooperating with federal authorities, it could make a number [all of whom may be well pleased that, at this point, the story jumps from page 1 to page 5] of politicians nervous, including possibly Blake’s longtime friend, former U.S. Sen. Trent Lott. …

The article quotes a political science prof from Southern Miss, who, if he were Blake, would “sing like a canary.” Lott had no comment.

There’s some biographical stuff about Blake, and another interesting name pops up:

The son of a sharecropper, Blake began life [apparently, like Athena, springing forth at birth in football armor] as a football star out of Tallahatchie County, playing lineman for Mississippi State University before graduating in 1959 and later playing for the Chicago Bears, said one of Blake’s friends, Thurston Little of Rienzi. “He came up hard. Never had a quarter in his life.”

Just out of nowhere, Thurston Little drops into the story! And no effort is made to explain his connection to what was then the largest insurance fraud in world history!

Are we supposed to make these little connections on our own?

The story notes he coached high school football at Kosciusko for a year, and that his mentor was J.P. Coleman, who, says Little, “bought his first wardrobe of clothes.” Blake then became friends with Eastland and then Trent Lott. Little also notes “he never forgot where he came from” and he “probably helped more people than anybody in Leflore County.”

He “made his first big money through farming.” And how did he do that?

A series of exposes by Gannett News Service … in 1983 and 1984 detailed how Blake’s farm companies obtained $11 million in government loans by pleading poverty to the Farmers Home Administration while failing to disclose he was making more than $5 million a year storing grain in Texas, mostly through a government contract.

The government later declared Blake in default of the contract. …

In 1988, Blake pleaded no contest to a federal charge that he offered bribes to Mississippi Bank officials in exchange for preferential treatment in securing loans.

How much in loans? $21M in 40 loans. Blake paid a $1.5M fine.

And then another interesting name crops up– that through Lott’s chief-of-staff, Tom Anderson, Blake met Dickie Scruggs, and that Blake’s tobacco payments “went through a company in which Anderson had an interest.” Blake gets, says court documents, $486K a quarter.

House picture courtesy of Rodney and Google street view.

Update: Original post showed house across the street from the Blake house.

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So long as Courts overlook such blatant violations of constitutional rights, prosecutors and investigators will have little incentive to refrain from committing those violations. Many argue that we should show more concern for the rights of the victim. I agree. But we do not show concern for victims for refusing to enforce the constitutional rights and protections required by the constitution. Instead, we increase the danger that the real perpetrator of a crime will walk free because some innocent person is wrongly convicted. Under such circumstances when the law is not judiciously followed, the victim’s right to justice is certainly not met.

– Justice Dickinson, dissenting in Birkhead v. State, released by the Mississippi Supreme Court today.

[I]f a reviewing court discovers a constitutional error coupled with a reasonable possibility that the error could have contributed to the conviction, then the error is not harmless. Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Phrased another way, in order to identify harmless error, an appellate court must determine “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Delashmit v. State, 991 So. 2d 1215, 1223 (Miss. 2008).

– Justice Kitchens, also dissenting.

The first divided criminal cases of the year were decided in today’s Supreme Court decisions list. I want to focus in this post that; the other divided case only needs limited comment, noted in the update at the end of this post.

I’m pretty discouraged by the frequency with which the dissents seem to have the better of these divided cases. This one is certainly a case in point– where the court is willing to skip lightly over a law enforcement witness’s comment on the defendant’s assertion of his right to remain silent, and where the court holds as harmless error the admission of “rank hearsay” that “emasculated the defendant’s case.”

In Birkhead, we get a 6-3 result in a capital murder case that resulted in a life sentence.  Randolph wrote for the majority, and Dickinson dissented on two issues (joined by Kitchens) and Kitchens on those two plus another (joined by Dickinson on the first two and Graves on all three).

The first issue involves the harm of supposedly harmless error. The defense theory revolved around the time of death, and the court allowed a death certificate into evidence that had a time of death that supported the prosecution theory and not the defense theory.

The Waller opinion rules that the evidence should have been excluded but that it was harmless error because the defendant got to prove his own evidence about the timing!?

Justice Dickinson opines that the statement “was pure, rank, unadulterated hearsay provided by a police officer who was neither identified nor produced for cross-examination. Furthermore, it emasculated Birkhead’s theory of the case.”

Doesn’t sound harmless to me.

It doesn’t to Justice Kitchens (quoted at the top of the post), either.

The other issue is a clear comment on the defendant’s assertion of his right to remain silent by a law enforcement witness. It should have resulted in a mistrial, say Kitchens and Dickinson. The majority finds that the trial court’s instruction to the jury to disregard the remark sufficed to resolve this problem.

The Kitchens opinion starts with a Batson issue (an issue where he and Graves are alone, 7-2). Batson held that it was an equal-protection violation when the prosecution used its peremptory challenges to strip blacks from the jury. The prosecutor used all five strikes to remove blacks, yet the trial court refused to require him to state nondiscriminatory reasons. On appeal, Waller’s opinion rules (and, on this point, Dickinson argees in his opinion) that the defendant loses the issue because he didn’t preserve in the record the racial makeup of the entire jury panel– the possibility is suggested that there wasn’t anyone to strike but black jurors.

Kitchens argues that the majority has the Batson process wrong– that once the showing is made that strikes were being used just to remove blacks, the burden shifts to the prosecution to articulate non-discriminatory reasons. That’s how I understood it too, although I also thought the lawyer should show that the prosecution was clearing blacks from the venire. The court has never liked Batson claims, and I’m not that surprised that this one went the way it did.

Update:

The other split opinion is an interlocutory appeal about change of venue.  The majority rules that the waiver of venue by a Mississippi resident defendant does not bar a nonresident defendant from asserting that venue was proper in the resident defendant’s home county.  Dickinson wrote for the majority, and Randolph wrote a defense in which Kitchens and Chandler joined.  The only novelties are that Randolph is for the first time in dissent, and this the first split opinion of the year in which Dickinson writes for the majority.

Also on the decision list were several unanimous ones,  a really routine case about chain of custody involving sale of cocaine, a case about proof of prior bad acts, events that happened the same day as the murder that was the subject of the case, and a change of venue issue, a case with an ineffectiveness claim for failure to object to a jury instruction about the variance between an indictment and a jury charge, and a very disturbing case about sexual battery on a child, in which the issues arose from attempts by the defendant to show that the child’s knowledge about sexual matters came from assaults from her step-brothers and not from his assaults.  The first three are Lamar opinions and the last is by Graves.

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Recall that between Christmas and New Year, a proceeding styled “U.S. v. $425,000 in United States Currency” was filed in the Northern District federal court, saying that Ed Peters had that money and it wasn’t rightfully his.

Roberts Wilson has come to court and said “That’s right, because it’s mine.” Here’s the pleading where he asserts that.

The most interesting things about Wilson’s pleading are in a footnote and an affidavit which gives Joey Langston’s account of the reverse contingent fee payment Scruggs offered.

The footnote to Wilson’s pleading answers one question (did Langston get his cash?) while raising another– it states that, although the agreement would have given Langston $3M, Scruggs “ultimately offset other claimed credits against Langston’s $3,000,000″ but that Peter’s take was $1M.

So what about Patterson? (I’ve heard that the $1M was all that was paid). And this is the question: What were the credits on which Langston owed $1M or $2M to Scruggs?

The affidavit describes the scheme: That Scruggs would give Langston anything he paid less than $3M to Wilson. When DeLaughter zeroed out Wilson, Langston was entitled to $3M (although, as per the footnote, he only actually got $1M. So sad).

The pleading also outlines the events surrounding the rulings where DeLaughter zeroed Wilson out.

Patsy Brumfield wrote about all this in the Daily Journal. H/t to NoMiss for pointing to that article in comments.

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In an article in the Madison County Journal about where the Scruggs case could go next, Brian Perry (who is obviously writing from the perspective of wishing from his own personal political hopes what the next case may be) recounts Balducci’s testimony about his and Patterson’s meeting with Jim Hood about the Katrina insurance cases, and also recounts Hood’s version. Both are under oath, and they can’t both be right. His description matches pretty much my recollection from reading all this some time ago, although I’ve not checked back.

I suppose the prosecutors have versions of this from Patterson and now Scruggs. The ham-handedness of the grand jury threats against State Farm, along with the games played over Rigsby documents all add up to a very un-pretty picture. Is this part of what is up next for the grand jury? No telling, but Brian Perry and other Republicans sure hope so.

h/t YallPolitics.

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Last week, I posted about the difficulties in working out a defense presented by the DeLaughter indictment, focused on the interaction of the charge of lying to the FBI (Count 5) and the mail fraud charges (Counts 2-4). Yesterday, I described some law and issues relating to the mail fraud charges. There’s also a bribery charge (Count 1), charging a conspiracy to violate 18 USC §666.  Some of the issues I mentioned in the prior posts overlap on this charge.

The indictment alleges that the Scruggs folks corruptly offered to give and “Judge BOBBY B. DELAUGHTER to accept and to agree to accept for himself and others” a thing of value worth more than $5,000 to “corruptly influence and reward[ him] in connection with his handling of the Wilson case…”

The phrase “agree to accept for himself and others” caught my eye for a couple of reasons. Look at the statutory language of §666– it makes it a crime where an agent of state government “accepts or agrees to accept, anything of value from any person… .”  The language “for himself or others” isn’t statutory. The “himself” is certainly implied in the statute. “Accept for… others” is the interesting part. It is clear that a quid pro quo (the judge gets this consideration, and gives that order) violates the statute. But the “or others” goes a step further, and raises the possibility of an exchange benefiting a third party– “don’t give the money to me, give it to my friend”? That is a part of what the Government seems to be alleging here.

So that’s legal issue #1 on this count: Can the Government show a bribe in the form of a third-party beneficiary contract– “If you rule for us, we will give your friend $1M.”

Also, the government is alleging they will show DeLaughter “agreed.” That’s statutory language and may just be boilerplate. By all reports, the only witness with direct access to DeLaughter will be Ed Peters. So will Peters testify that he had an agreement with DeLaughter about how this was all to go down? (I’m not suggesting that the Government has to prove a handshake moment– if they just prove the sequence of events, they’ll have what they need).

Was it a case-by-case agreement or did they have an across-the-board arrangement? (I’m reminded again of the idea that Peters said to DeLaughter, “I’ll keep all the cash and then I’ll take care of you in the end”).

I’m reading the indictment to allege alternative bribes– that DeLaughter got for himself the consideration for a federal judge slot and for others the cash Peters took. Both of course can be true. The thing of value has to be worth $5,000 or more, and the $1M Peters got certainly is that. But what about what DeLaughter got? A federal judge’s slot is certainly worth more than $5K, but DeLaughter didn’t get that– he got consideration for a slot. What’s that worth? Will that become an issue in the trial? Could it become important for the government to make the “for others” part stick because of this issue? (I am sure there will be an argument in a directed-verdict motion about this but don’t think the argument that consideration for a judgeship isn’t worth $5K will derail this case).

That’s legal issue #2:  Does “consideration” for a federal judge’s slot, in the form of a call from a Senator that one is on the list, satisfy the requirement that one get $5K in value?

Next we get a description of what DeLaughter would do in return for the thing of value and the feeding of his “aspirations to become a federal judge”– the agreement was “to secretly and corruptly obtain rulings from the court that while not plainly unlawful, would ultimately minimize Scruggs’ financial liability….”

Secretly (ex parte contact) and corruptly and not plainly unlawful are key phrases here. I’m reading “not plainly unlawful” to mean that the Government is effectively conceding that the rulings are not (on their face– just reading them) illegal. That is, they are within the range of possible judge-like responses to the issues before the judge. So if they aren’t “unlawful,” how are they “corrupt”? (corrupt being, of course, statutory language).

Here, we are back into issues very similar to those I discussed on the mail fraud count, where I talked about the issue of whether the rulings were “honest.” Are they “honest” if, even though proper, they were obtained by a dishonest process? On the bribery charge, instead of the question being about the “honesty” of the rulings, it is about whether they are “corrupt.”

That’s Legal Issue #3:  Will it suffice to show that the rulings were “corrupt” if the Government shows that the rulings (even if arguably proper) were obtained through improper means such as ex parte contact?

Which doubles us back to that first word, “secretly.” Is it enough for the Government to show that the rulings were obtained through a secret and improper process?

The overt acts alleged in the indictment mostly are straightforward descriptions of what widespread coverage said happened: Scruggs asked Langston and his firm to take the lead in the case. Langston and Balducci in August of 2005 flew to Jackson and gave Peters $50,000 in cash. On January 19, 2006, Langston and Balducci entered appearances in the case. DeLaughter gave the Scruggs team an advance copy of his court order on February 27th. In August, Peters and DeLaughter had a series of ex parte meetings “designed and intended to secretly influence the judge to shade his rulings in favor of Scruggs. On March 29, Scruggs caused Senator Lott “to offer Judge DeLaughter consideration for appointment to a federal judgeship then open in the Southern District of Mississippi.” From October 2006 until October 2007, Langston wired $950,000 from his law office to Ed Peters to corruptly influence Judge DeLaughter.

I find one passage in the overt-acts section confusing. The indictment alleges that in January, 2006, DeLaughter “accepted a secret, ex parte communication from the Scruggs legal team, essentially reversing his earlier ruling and accepting, almost verbatim, a scheduling order favorable to Scruggs.” This passage seems to be missing a linkage between what DeLaughter accepted from Scruggs and the ruling he made, but I’m not sure.

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In comments, a question was raised whether the mail fraud statutes are designed to cover the sort of things charged in the DeLaughter indictment, which I thought an interesting question. The answer is that the statutes were amended with something like this in mind.

In 1988, in specific response to a US Supreme Court case, McNally v. United States, that held the mail fraud statutes did not cover denial of honest services of public officials, Congress added a section to the mail fraud statutes that says: “For the purposes of this chapter, the term ’scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” That statute, codified as 18 USC § 1346, is the engine that is driving Counts Two through Four of the indictment brought against Bobby DeLaughter.

The basic mail fraud statute, 18 USC § 1341, seems addressed to what we normally think of as fraud:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises … places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service … shall be fined under this title or imprisoned not more than 20 years, or both.

As noted, §1346 defines that phrase “defraud” as to include “depriv[ing] another of the intangible right of honest services.” Judge DeLaughter is charged with conspiring to do this– that is, he was part of a scheme that used the mails in a “scheme or artifice to defraud” that is, a scheme “to deprive another of the intangible right of honest services.”

The statute has been applied to include schemes involving judges and cases before them. In U.S. v. Long, 95 Fed. Appx. 483 (4th Cir. 2004), a municipal judge who was also mayor was fixing DUI cases by reducing the charges to reckless driving (with a fine substantially higher than that usual for reckless driving) and telling the drivers to contest their license spending before the DMV hearing, then ordering police officers on pain of firing not to show up at the DMV hearing so the defendants would get their drivers licenses back. In U.S. v. Frega, 933 F.Supp. 1536 (S.D. Cal. 1996), the indictment alleged that a pair of lawyers had lavished gifts on a judge (my favorite of the alleged gifts was $1,200 to pay someone to ghost write a novel for the judge). In U.S. v. Brumley, 116 F.3d 728 (5th Cir. 1997), the statute was applied to a Texas workers comp director who was taking “loans” (never repaid) from lawyers who were appearing before him. Brumley argued that the statute did not reach either ethical lapses or conduct that involved purely state concerns; the court rejected both arguments.

Note that in Long, the mayor wasn’t getting the money generated by the scheme– it was going to the town for which he was mayor.

I think it pretty clear that the 1988 amendment was designed to reach the sort of conduct alleged here.

With that, I’m going to comment on some possible defenses now that I’ve looked at some cases under the statute. There are some key words here:

Honest

Can Judge DeLaughter say that he wasn’t denying anyone “honest services” because he ruled correctly and how he should have ruled in any event, and therefore there’s no fraud?

If that’s a defense, that means that a trial would involve a trial-within-the-trial about the correctness of the rulings DeLaughter made, and possibly some expert testimony. If his rulings were even arguably correct, does he walk on mail fraud?

There’s a possible major flaw in this argument, though, noted below under the heading “concealment.”

Scienter

By definition, a fraud scheme involves knowing you’re committing fraud– that’s what is known as the scienter requirement for fraud. The 7th circuit case I mentioned states that this element requires the public official have notice of the illegality of their act. There’s a split among the courts as to whether there has to be a violation of free-standing legal obligations (the argument is made that mere ethical lapses don’t suffice, for instance, and that there has to be some violation of a stated duty), while other courts have ruled that there’s no such requirement.

It seems clear that the reason the DeLaughter indictment specifically cites Miss. Code Ann. § 97-11-53, which makes it a state crime to illegally influence a public official, is to cover this possible requirement and to make clear that DeLaughter was on notice he was acting illegality. Can the prosecutors also cite anti-earwigging rules for that purpose?

This is a place that the “honest” part recurs– if DeLaughter still meant to rule correctly, did he have the mental state (scienter) required for fraud? There are cases that support, and other cases that reject, these arguments DeLaughter could make about whether he was going to be “honest” and whether there was a denial of anything tangible if it didn’t effect his rulings.

Concealment

The off-the-record contact by Peters is critical. There are cases that hold that concealment of a conflict of interest will suffice to violate this statute. If the Government wants to push the envelope a little, it could argue that Peters’ off-the-record contact with DeLaughter funneling defense information to the judge all by itself denied the public of DeLaughter’s honest services, even if it did not affect his rulings.

It seems to me that allowing one side back-room against-the-rules-and-law access to the judge (in an information flow that was a two-way circuit, to boot) certainly denies the public of the honest services of a judge…

Proof

So what kind of proof issues does all this imply? If I were defending DeLaughter and worried about the whole problem whether he can testify (given the charge of a lie to the FBI agent, the grand jury testimony, and so on), I would try to get some expert testimony, and there are some obvious possibilities:

• An expert who perhaps could testify that DeLaughter’s rulings were at least arguably correct. This has the potential of having a (seemingly) neutral witness say what DeLaughter needs to tell the jury: That these rulings were honest. Thus no denial of honest services.
• The actual expert from the Wilson case. As I understand it, what DeLaughter did was reject a special master’s ruling that largely accepted the expert testimony advanced by the Wilson side and rejected that put forward by the Scruggs side. I’d be seriously considering calling that expert to say “Oh, yes, my testimony was honest and correct, and Judge DeLaughter was honest and correct to accept it.” If I’m correct about who this witness is, it is someone closely associated with Scruggs, so Scruggs’s guilty plea may be complicating here, but surely that expert would have to stand by their prior testimony.
• Scruggs’s lawyers other than Langston and Balducci. The indictment accepts the version of this tale that Scruggs decided in late ‘05 / early ‘06 to bring in Langston and Balducci to work Peters to dishonestly influence DeLaughter. Before that decision, Scruggs was represented by widely respected lawyers about whom there has not been a hint of impropriety in this case; presumably they were advancing the arguments on which Scruggs ultimately “prevailed”– the suggestion is not that Langston and Balducci brought new arguments to the table but rather went through the backroom to make sure the old arguments won.  Presumably, the earlier lawyers would have to say that they advanced arguments they thought legitimate and took seriously.

In some ways, these theories would make this trial more like a legal malpractice case than a fraud case, much less a normal criminal case!

If DeLaughter’s defense takes any of these tacks, it gives the defense the possibility of defending the honesty of DeLaughter’s decisions without DeLaughter needing to take the stand to defend them.

Will that be enough? This is where the issues I raised under the heading “concealment” become critical. If the backroom ex parte contact to influence a judge’s decisions suffice– without regard to whether the judge ruled correctly, the jury will be invited in the jury instructions to convict DeLaughter without regard to whether his rulings were correct.

Which, by the way, means that there may be another kind of expert testimony in this case: Testimony about the propriety of the backroom ex parte contact.

Do all these suggestions for how the defense can handle the case mean I no longer think that the judge has a hard row to hoe? Nope. I still do, but am now of the opinion that there are some interesting angles the defense can work in this case.

I’ll close out by noting that given all these issues, I would not be surprised to see a motion to dismiss from the defense side, arguing what’s called the rule of lenity– that this statute doesn’t sufficiently charge as a crime honest rulings made in a process involving back room conduct. I would expect such a motion to be a loser but serve to bring before the judge issues that will become key when the judge decides how to instruct the jury about all the issues described in this post.

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Jerry Mitchell has a guess about what produced Dickie Scruggs’s second guilty plea last week — but since the Clarion-Ledger’s website chops off his lede sentence (or more), who knows exactly how he phrases it. The gist, we can be sure, is that Dickie’s having no fun these days in Kentucky and hopes Arkansas might be better.

Scruggs, who earned fame and wealth from asbestos and tobacco litigation, initially heard he would be assigned to [a] dormitory-style camp along with others convicted of white-collar crimes. But instead the multimillionaire was classified as a flight risk and has been housed in general population in prison alongside those convicted of more common crimes.

Among those he has shared a cell with is a meth dealer. …

Assistant U.S. Attorney Bob Norman said Scruggs has begun to cooperate with authorities in a way he hasn’t before and has agreed to take a lie detector test.

If Scruggs’ information and testimony prove valuable, prosecutors have agreed to consider recommending his sentence be reduced. …

If Scruggs had gone on trial and been convicted on all of the most recent corruption charges, he could have faced up to 85 years in prison.

“The upside of going to trial was not that great, and the downside was terrible,” said Matt Steffey, professor at the Mississippi College School of Law.

“You cannot be in prison and remain in denial about what it’s like.”

Now pivot from one who knows to one who doesn’t, yet . . . and imagine:

The mayor of a state’s largest and capital city is on federal criminal trial. What would he want his attorney to tell the jury in his opening statement? That “A violation of the constitution, by itself, is not a crime”? Would he want the lawyer to talk a bit longer than “less than 10 minutes”? Well, right . . . maybe not.

Okay, what sort of witnesses would the mayor want to defend him? A woman who tells the jury she’s been an alcoholic and drug user and told the mayor about that? A man who’s brought in in orange jumpsuit and shackles, for whom the mayor has to scare-up a Jackson State pullover and sweatpants to change into before the jurors come in and he tells them he’s a crack user? Another man in federal custody who’ll testify that he bought drugs at the scene of the mayor’s alleged crime?

Would the mayor perhaps hope for a case that his lawyer needed at least 30 minutes to present?

He’d be outta luck. If you can bear it, Chris Joyner has more analysis of this train-wreck here.

As for the next big Mississippi-connected perp, guess what — or rather, who — brought Allen Stanford to grief. His lawyer.

As R. Allen Stanford assured clients last week that U.S. investigators were conducting “routine examinations” of his Texas investment advisory firm, a lawyer for his company’s Antigua affiliate was backing out.

The 58-year-old billionaire, now accused of running a “massive, ongoing fraud,” spent his final weeks at the firm struggling to soothe clients while disregarding subpoenas that sought to account for almost $8 billion of their money, according to a lawsuit filed yesterday by the Securities and Exchange Commission. Regulators pounced days after a lawyer at the Antigua bank at the heart of the case “disaffirmed” everything he had told authorities.

“The attorney’s withdrawal is a massive red flag” that “screams fraud,” said Peter Henning, who teaches criminal and securities law at Wayne State University in Detroit. “If the SEC hadn’t turned up the heat by that point, it did then.” …

The attorney who stepped down was Thomas Sjoblom at Proskauer Rose LLP in Washington, according to a person familiar with the matter. He declined to comment. …

Well, we don’t, so what have youse to say about all this (and/or whatever)?

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