Legal News

The Mess in Mississippi: Pregaming the Feds? Strategy

By Ashby Jones

We suspect that anyone who had a lingering case of The Scruggs heading into yesterday is feeling much, much better today, what with yesterday’s big dose of news.

The quick recap: Booneville, Miss., lawyer Joey Langston agreed to plead guilty to conspiring to improperly influence Law Blog Moustache Society member Judge Bobby DeLaughter in a case in which he was representing Dickie Scruggs. Second, Steve Patterson, one of Scruggs’s fellow-indictees agreed to plead guilty and cooperate with the government in the bribery case involving Judge Henry Lackey.

Third — and something we didn’t report yesterday — Dickie’s son, Zach, who’s also indicted in the Lackey situation, has brought in a new lawyer: Todd Graves, who applied for pro hac vice status in the case yesterday. Todd Graves? Name sound familiar? Graves was one of the handful of U.S. attorneys reportedly forced out by DOJ officials. (HT: Prof. Henning of white-collar-crime-prof blog.) He’d served as U.S. Attorney in Kansas City since 2001. He’s now at Graves, Bartle & Marcus. Ah, so fun! It’s days like today that we feel like we know every lawyer in the world!

There are a couple of other questions we didn’t get a chance to address yesterday, however. For starters, we noticed that Scruggs was named in the papers filed alongside Langston’s plea agreement as an unindicted participant in the conspiracy to influence Judge DeLaughter. Now, we don’t consider ourselves experts in criminal procedure or prosecutorial tactics, but this struck us as odd. Doesn’t the government typically refer to alleged unindicted co-conspirators as “John Doe” or, to use a real-life example, Partners A and B? How can the government get away with naming someone as a participant in a conspiracy without naming them also as a defendant?

After getting no response from either the DOJ or the U.S. Attorney’s office in Oxford, Miss., we checked in with a couple former prosecutors on the question, who confirmed that it was indeed odd. “It’s often considered unfair,” said Michael McGovern of Ropes & Gray. “Typically, the government gives someone a chance to clear his name before he’s outed.” McGovern says that in this instance, however, the unfairness is lessened somewhat by the fact that Scruggs will likely soon have a chance to address the allegations.

And why would the feds want to do this? Dan Hedges, the former U.S. attorney in Houston, said it could be viewed as much as a public-relations tactic as anything else. “It sends a message to the public that even though they haven’t indicted him, prosecutors have their eyes set on Mr. Scruggs,” he says.

Another question: How will the two cases intersect? Both McGovern and Hedges suspect that the government will try to introduce Langston’s testimony about the DeLaughter situation at the Lackey trial as evidence that Scruggs had previously engaged in “similar acts.” Will this fly with Judge Biggers? Hedges says the evidentiary issue will likely be “hotly contested” between John Keker, Scruggs’s lawyer, and the feds. McGovern agrees, but says admissibility should “not prove a high hurdle” for the government.

Full post as published by Law Blog - WSJ.com on January 15, 2008 (boomark / email).