Legal Commentary

Attorneys for famous plaintiffs lawyer Richard F. “Dickie” Scruggs filed a battery of motions yesterday which, while scrupulously avoiding use of the term, strongly suggest that he is invoking a sort of stealth entrapment defense. By that I mean that he is coming as close to mounting an entrapment defense as he can, without become subject to the special obligations and burdens that the law imposes on defendants who do so.

In the motions, Scruggs and his two co-defendants - law partners Sidney A. Backstrom and David Zachary Scruggs (Scruggs’s son) - specifically ask a federal judge in Oxford, Mississippi to dismiss the indictment against them due to “outrageous government misconduct.” The motion alleges that government “agents,” including Lafayette County state judge Harold Lackey of Oxford (the alleged target of the bribery attempt outlined in the indictment), effectively manufactured the crime. It also claims that federal investigators misled federal judges in their wiretap applications by concealing evidence suggesting that Scruggs and his partners were not involved - at least at the early stages.

If a defendant mounts a formal entrapment defense, he must prove that, first, the government induced him to commit the crime and, second, that he had no predisposition to committing it. (And, yes, the defendant actually has the burden of proving such a so-called “affirmative defense,” which is unusual in itself.)

There are lots of difficulties that come with invoking the defense which Scruggs’s lawyers probably do not want to grapple with, but chief among them is that the defendant opens the door to the government’s trying to prove other “similar” bad acts, even though the defendant hasn’t been charged with them in the indictment. (These become relevant to proving the defendant’s “predisposition” to commiting the crime)

The government already gave notice on January 28 that it will, in fact, try to introduce evidence of at least one such “similar act.” Prosecutors want to show that Scruggs was involved in a conspiracy to improperly influence a Hinds County state court judge, Bobby DeLaughter of Jackson, in early 2006. On January 7, Scruggs’s longtime friend (and erstwhile defense co-counsel in the federal bribery indictment), Joey Langston, in fact pled guilty to conspiring to corruptly influence DeLaughter at Scruggs behest. (Judge DeLaughter himself has not been charged with any wrongdoing, and has strenuously maintained his innocence.)

Scruggs’ counsel are understandably determined to keep the DeLaughter incident out of evidence - indeed, another motion filed yesterday is devoted specifically to achieving that goal - but their chances of succeeding would be much slimmer if they ever admitted that they were mounting an entrapment defense.

The motion to dismiss the indictment is here, while the motion to keep the DeLaughter incident out of evidence is here. (In other motions filed yesterday, the defendants also asked that the wiretap evidence be thrown out; that the defendants be tried separately from one another; and that, due to adverse publicity, the case be moved outside of Mississippi to either Texas or Louisiana. All of those motions, together with supporting documents, are available at David Rossmiller’s Insurance Coverage Blog, here, which has had the most comprehensive coverage of the Scruggs indictment.)

The crux of the “outrageous misconduct” motion’s argument is this. On March 28, 2007, Timothy Balducci, a lawyer who was working with Scruggs in defending a fee-dispute suit filed against Scruggs’s firm and four other law firms approached Judge Lackey in an “ex parte” meeting — i.e., a discussion about a case without opposing counsel being present. While such meetings might be considered unethical in themselves, they are not per se criminal. The motion says that Balducci was acting on his own, without Scruggs’s knowledge, and implies that such ex parte encounters, called “earwigging,” are common in northern Mississippi, even if frowned upon.

At the meeting Balducci told Judge Lackey, whom he knew well, that he’d consider it a “personal favor” if the judge would order certain inflammatory language removed (”stricken”) from the plaintiff’s complaint against the firms and then send the case to arbitration. Balducci also suggested that when Judge Lackey retired from the bench, he’d consider it an honor if Lackey would let him pay him to serve as an “of counsel” to Balducci’s newly formed firm, lending his name to the firm’s letterhead. The motion claims that Balducci meant for the two invitations — the “personal favor” and the offer of “of counsel” status at his firm — to be unrelated and independent of one another, though it is unclear how the Scruggs defendants would know what was in Balducci’s mind. (Balducci pled guilty to conspiring to bribe Judge Lackey in November is now a cooperating government witness against the Scruggs defendants.)

The motion then suggests that Lackey overreacted and misinterpreted what Balducci was saying — perhaps because he, Lackey, feared that he was the target of a sting operation — and that Lackey went to the FBI a few days later to report the approach. Thereafter Lackey began working for the government, wearing a wire, and aggressively attempting to build a criminal case against Scruggs, the motion says. (It alleges that Lackey repeatedly called Balducci, for instance, and dropped by unannounced at his office, while Balducci often did not even return the judge’s calls.)

For more than five months, the motion continues, the government still had nothing on the Scruggs defendant. Then on September 18, the motion argues, everything suddenly took a decisive turn toward the criminal — but only because of Judge Lackey and his government handlers.

Lackey called Balducci and told him, in “hushed, conspiratorial tones,” that he had something to say that might shock Balducci. He asked whether, if he helped Balducci and Scruggs, they would help him. Balducci evidently agreed, and three days later Lackey asked for $40,000 to take care of an unspecified problem. Balducci again agreed, but the motion maintains that in the subsequent taped and wiretapped conversations Balducci repeatedly asserted that this would be a matter just between him and the judge (i.e., not involving Scruggs at that stage).

“Here’s how it works,” Balducci told Lackey on September 27, for instance, when he delivered the first $20,000. “They’ll come a time where I’ll sit him down in private and I’ll tell him [Scruggs] that I solved a problem for him. . . . . I’ll just go to him and say that I cured a problem that you had and you need to recognize the problem that I have cured you had.” (The Scruggs motion does not say where Balducci got the $20,000; the question arises because the motion alleges that Balducci was in financial trouble ever since launching his firm — which envisioned offices in Oxford, New Albany (Miss.), and Washington, D.C. — in January 2007.)

Finally, on November 1, when Balducci made the final payment, FBI agents confronted him with the evidence against him, flipped him, and sent him back to the Scruggs law firm wearing a wire in an attempt to make a case against Scruggs. At that point, the motion’s narrative abruptly stops, offering no insights into what the Scruggs defense from that point forward would be, if not entrapment. The indictment, after all, goes on to allege that the Scruggs defendants agreed, at Lackey’s request, to make an additional $10,000 payment, and that Scruggs provided Balducci with phony invoices for “jury consulting work” in an effort to cover-up what the, by then, $50,000 in bribes had really been.

My subjective view, for what it’s worth, is that the defense lawyers do not realistically hope to win the motion to dismiss (an extreme longshot) but rather to counteract months of adverse publicity with a competing storyline: one that portrays the Scruggs as victims, not perps. That way, if the case does go to trial, there will at least be two narratives out there percolating down into the potential jury pool, and not just the government’s.

My guess is that the Scruggs defendants never will actually invoke an entrapment defense, but will, rather, tell this (possibly true) story of a heavyhanded government sting operation, implicitly inviting the jury to acquit even if a technical crime may have been committed.