Trial. A formal inquiry designed to prove and put upon record the blameless
characters of judges, advocates and jurors.

Ambrose Bierce

Public Opinion vs. The Truth About the Scruggs Matter

Columnist Carl Horowitz published an opinion piece on March 29, entitled "Dickie Scruggs: A Legal Career Up In Smoke." I found it on Townhall.com, a website of so-called "Conservative" columnists and others.

Referring to the Jones v. Scruggs case Mr. Horowitz says this:

Dickie Scruggs wasn't about to yield. In March 2007 he and four persons -- all future defendants -- paid Judge Henry Lackey a visit to make him an offer:
Rule in our favor and we'll make you richer. Lackey, not wanting to bring legal
troubles upon himself, quickly reported the incident to the FBI. That in turn
led to an undercover sting operation. Timothy Balducci, a New Albany, Miss. lawyer, along with former Mississippi State Auditor Steven Patterson, decided to cop a plea and work with the feds. During September 27-November 1, 2007, Balducci made three cash payments to Judge Lackey totaling $50,000. "We paid for this ruling; let's be sure it says what we want it to say," Balducci told Zach Scruggs and Sid Backstrom.

This looks a bit like the story, but it is not. Much of it is untrue. It is libelous. Libelous but none one of the "four persons" would make any headway bringing suit. See New York Times v. Sullivan.

So the story of Scruggs Matter twisted as Carl Horowitz has twisted it will be the Public Opinion about the Scruggs Matter and the character of Dick Scruggs, Sidney Backstrom and Zach Scruggs.

The Real Truth about the Scruggs Matter and these individuals will be lost to history.

Out of respect for the truth, let us look at the statement, parse it, and see how the truth has been sullied.

Horowitz starts out saying Scruggs was not "about to yield" in the Jones v. Scruggs case.

"Yield" to what? There was (and is) a difference of opinion as to the relationship between the plainfiffs and defendants in Jones. Yield to what, the plaintiffs' claims? Yield to the pressue of the case, one which had been sealed at the ex parte request of the attorney for the Jones plaintiff to the judge assigned to the case, Judge Henry Lackey?

Mr. Horowitz goes on:

In March 2007 he and four persons -- all future defendants -- paid Judge Henry Lackey a visit to make him an offer: Rule in our favor and we'll make you richer.

Tim Balducci was a longtime friend of Judge Henry Lackey. He met with Judge Lackey to "earwig" him about the Jones Case. Lackey had already earwigged with Grady
Tollison, the attorney for the plaintiffs in the case and consented to sign and did sign an order sealing the file in the case. Defendants were not made aware of the "motion" to seal the file. Nor were they made aware that Tollison had earwigged Judge Lackey.

Tim Balducci was the only person to meet with his friend Judge Lackey. Dick Scruggs and "four persons" did not "pay" a visit to Judge Lackey. (Interesting but not so clever use of the verb "paid" by Mr. Horowitz.)

Balducci did not ask Lackey to rule in favor of defendants in the case. The case could only go to arbitration. That was the agreement between the parties. Balducci did not seek a favorable ruling in the case, he only pointed out the fact of the case, that it should be in a different forum, the forum of an arbitration.

Horowitz says: "Lackey, not wanting to bring legal troubles upon himself, quickly reported the incident to the FBI. That in turn led to an undercover sting operation."

Nothing happened. Two weeks later, Lackey decided to go to the United States Attorney. He did not act "quickly" that is for certain.

This move by Judge Lackey is interesting. Why did he wait? Did he think he was being watched? Seems there something in a newspaper article in which it was said that Lackey may have been afraid he might be "investigated."

Lackey was then and still is a member of the Mississippi Commission on Judicial Performance. He has ruled against judges who have had ex parte contact. Yet he had an ex parte contact with the attorney for the plaintiff in the Jones Case. Seems there is ex parte contact and then there is some other wrongful ex parte contact. What Balducci did in talking to Lackey, his long time friend and mentor was to have contact which was not thought to be wrongful. It was just Mississippi Earwigging.

One also must wonder whether the United States Government, the Office of the United States Attorney, was known by Lackey to be investigating persons in Mississippi which may have been targeted for possible prosecution if possible for such wrongdoing as "honest services" wire fraud.

Judge Lackey may have been a key in the "if possible prosecution" desires of the federal government, the US Attorney's Office.

In April 2007 Lackey, as a judge, agreed to become a "government agent." He agreed engage in conduct which would trap Balducci in an act of wrongdoing which would put him in jail.

But he wanted more and the record clearly shows this, he wanted to use his friend Balducci to bring down Dick Scruggs . He agreed to be a government agent to engage in an act of treachery to destroy his friend and his friend's friend.

Horowitz goes on to say:

Timothy Balducci, a New Albany, Miss. lawyer, along with former Mississippi State Auditor Steven Patterson, decided to cop a plea and work with the feds. During September 27- November 1, 2007, Balducci made three cash payments to Judge Lackey totaling $50,000. "We paid for this ruling; let's be sure it says what we want
it to say," Balducci told Zach Scruggs and Sid Backstrom.

Judge Lackey, now government agent and wearing a wire and having his phones wired, was having no success in his newly discovered role as federal government crime fighter. Nothing was forthcoming from Balducci which he might use to succeed in getting Scruggs under some federal government prosecution.

Things changed in August. Lackey became aware that his friend Balducci was in trouble, real trouble and was looking for some success.

Balducci had embarked on the formation of a new law firm. It was with Steve Patterson. Patterson was not a lawyer. They had offices in Mississippi and Washington, D.C. They had already enlisted a former United States Magistrate and a Mississippi circuit judge to appear on the their letterhead. There were others. But the firm was broke. In addition, members of the Mississippi legal fraternity were moving in on the question of whether the Balducci Patterson firm was not a violation of the Rules of Professional Conduct because Patterson was not a lawyer.
Balducci put a good front but he was clearly in trouble, maybe even having a nervous breakdown. He was acting as if he had become manic.

Lackey certainly must have sensed this. It was then that he told his friend Balducci that he, Lackey, was in trouble and needed money. Lackey offered to help Balducci if Balducci would help him. Lackey said he needed $40,000. Lackey said he needed it from Scruggs. He said he would order the Jones Case to arbitration.

Lackey had a wire on his body when he talked with Balducci about his desire for money and Balducci's acquiescence. Balducci was caught. He was in deep trouble. He began to talk to the United States Government, the people who were working with Judge Lackey.

Facing many years in prison, he agreed to become a government agent to extend the Lackey "bribe" to Dick Scruggs and Sidney Backstrom and Zach Scruggs, Dick Scruggs 33 year old son.

He succeeded, and with Defendants Sruggs and Backstrom on tape showing various levels of participation or knowledge about what Balducci was supposedly working out with Judge Lackey (the "bribe" was not a bribe at all at this time because Judge Lackey was not really offerng a bribe), the government secured indictments from the grand jury against Dick Scruggs, Sidney Backstrom, Zach Scruggs, Tim Balducci and Steve Patterson.

(It is interesting to note that the grand jury was sitting and supposedly ready to consider such information about Scruggs and others.)

Treachery: A Poignant Truth of the Scruggs Matter?

Perhaps the most poignant aspect of the Scruggs Matter is the treachery of Judge Henry Lackey.

It may well be to some that the end justifies the means but the truth is Judge Lackey deceived his friend Tim Balducci and brought him down, bringing him to utter ruin as a lawyer. As if this was not enough, he forced his friend into a position where he then had to act to betray his friend, Dick Scruggs, Sidney Backstrom and Zach Scruggs.

These treacheries are not spoken of in the current discussion of the Scruggs Matter.

Perhaps it is because we are so full of hatred and ill-feeling and so many are irrationally delighting in the destruction of "wrongdoers" we do not recognize a telling and terribly distressful truth about what has happened. Judge Lackey and the United States Attorney in the Northern District of Mississippi are not heroes in this matter. They have acted with treachery. This conduct is permitted by our laws. But, I wonder is it permitted by higher laws?

I think not. The end does not justify the means. Not only was the entrapment in this case by Judge Lackey wrongful and a true a good defense for each of the Srcuggs Defendants, the entrapment was wrong as a matter of basic morality between human beings.

All of the wrong by the Scruggs defendants is not as wrong as the conduct of Judge Lackey in using his friend's trust to bring him to ruin and in forcing his friend to bring his friends to ruin.

Truth: The first casualty of war.

"In war, truth is the first casualty." Aeschylus (525 BC - 456 BC).

An essential "truth" of the Scruggs Matter has to do with whether Mississippi Circuit Judge Henry Lackey's sought after payment from Tim Balducci was "a business transaction or series of transactions of both Layfayette County [Mississippi] and the Administrative Office of the Courts [of Mississippi]." See, e.g. Court Transcript of Court's Acceptance of Sidney Backstrom Plea.

This condition was a requirement of the crime. The crime was bribery or conspiracy to bribe a state judge. It was a federal crime. The federal government could not impose the crime unless there was a nexus of federal funds going to the state agencies supposedly involved in the crime. Without the nexus, the federal government would have no constitutional basis for jurisdiction to impose its laws.

Thus, it had to be established that there was federal money going to the local government, an agency of the state, in this case Lafayette County and the Administrative Office of the Courts.

To round out the jurisdiction requirement it also had to be shown that an agent of these entities had engaged in a transaction or transactions for them which was a violation of the law, bribery.

So here is where truth becomes a casualty.

Judge Lackey sought to be paid a bribe. He initiated the bribe. Tim Balducci did not seek to bribe Judge Lackey. Judge Lackey was able to get Timothy Balducci to go along with the payment of money the Judge sought.

Was the transaction a county or court transaction? The transaction could not have been with the county or the court.

1. Judge Lackey was the one who sought the payment of money from Balducci.

2. The money sought was not going to the county or the court.

3. Judge Lackey did not have authority under law to seek the money. A bribe was outside the scope of his employment. It was in violation of his duties as judge. It was in violation of his duties as lawyer. It was in violation of his authority under the constitution of the state of Mississippi.

There is no basis for saying that Judge Lackey's actions, the payment of money to him, involved "a business transaction or series of transactions of both [or either] Layfayette County and [or] the Administrative Office of the Courts."

Saying they were is a pure fiction, a fiction necessary to make the case against Dick Scruggs, Sidney Backstrom and Zach Scruggs -- a fiction necessary for the government to win the war.

The Climate of Opinion of Blogs and Comments

There seems to be a climate of opinion which animates the comments one reads made in response to a statement of fact or opinion in this or that blog regarding the Scruggs Matter. The climate includes a whole lot of animus toward Dick Scruggs and Zach Scruggs. Not much is said about Sidney Backstrom. Tim Balducci is mentioned from time to time but he seems a bit off the general object of attention, at least for the time-being. The climate of opinion about the Scruggs is decidedly negative and mean-spirited.

It includes an obvious glee in their fall and much enthusiastic speculation as to what is to befall Dick Scruggs or Zach Scruggs in the future when it is time for them to pay, at the time of sentencing. There is much optimistic speculation of further trouble for Dick Scruggs.

The climate of opinion has another interesting aspect. The people who comment seem part of a community of like-minded people. Like-minded in animosity toward Dick Scruggs.

Also, the commenters make it a point to share the view of the author of the piece the commenters comment about. There is a sort of hero worship of the author. It is as if the commenter must tell how much he likes what David, Peter, Lotus, or other person, a newspaper reporter, is saying and how well he or she thinks of the person -- the one who brings the tidbit which satiates the emotions of the worshipper.

In one his journal entries Leo Tolstoy said this:

To love means to desire that which the beloved object desires. The objects of love desire opposing things, and therefore, we can only love that which desires one and the same thing. But that which desires one and the same thing is God.

December, 1895, Wikisource.

There is a love of sorts among the author and the commenters, a connection. A kindred spirit. The climate of opinion is an expression of the love of that connection. There is a solidarity. In this solidarity there is a sense the commenters have found their god. That is to say, one can feel right, strong, as having place, because there are others who share in certain objects of desire. In this case the desires are of mean-spiritedness toward Dick Scruggs and pleasure in his downfall.

Imagination: Pascal's Pensees 82

Pascal says this about imagination and truth:

82 Imagination. —It is that deceitful part in man, that mistress of error and falsity, the more deceptive that she is not always so; for she would be an infallible rule of truth, if she were an infallible rule of falsehood. But being most generally false, she gives no sign of her nature, impressing the same character on the true and the false.

I do not speak of fools, I speak of the wisest men; and it is among them that the imagination has the great gift of persuasion. Reason protests in vain; it cannot set a true value on things.

This arrogant power, the enemy of reason, who likes to rule and dominate it, has established in man a second nature to show how all-powerful she is. She makes men happy and sad, healthy and sick, rich and poor; she compels reason to believe, doubt, and deny; she blunts the senses, or quickens them; she has her fools and sages; and nothing vexes us more than to see that she fills her devotees with a satisfaction far more full and entire than does reason. Those who have a lively imagination are a great deal more pleased with themselves than the wise can reasonably be. They look down upon men with haughtiness; they argue with boldness and confidence, others with fear and diffidence; and this gaiety of countenance often gives them the advantage in the opinion of the hearers, such favour have the imaginary wise in the eyes of judges of like nature. Imagination cannot make fools wise; but she can make them happy, to the envy of reason which can only make its friends miserable; the one covers them with glory, the other with shame.

What but this faculty of imagination dispenses reputation, awards respect and veneration to persons, works, laws, and the great? How insufficient are all the riches of the earth without her consent!

Would you not say that this magistrate, whose venerable age commands the respect of a whole people, is governed by pure and lofty reason, and that he judges causes according to their true nature without considering those mere trifles which only affect the imagination of the weak? See him go to sermon, full of devout zeal, strengthening his reason with the ardour of his love. He is ready to listen with exemplary respect. Let the preacher appear, and let nature have given him a hoarse voice or a comical cast of countenance, or let his barber have given him a bad shave, or let by chance his dress be more dirtied than usual, then however great the truths he announces. I wager our senator loses his gravity.

If the greatest philosopher in the world find himself upon a plank wider than actually necessary, but hanging over a precipice, his imagination will prevail, though his reason convince him of his safety. Many cannot bear the thought without a cold sweat. I will not state all its effects.

See Pascal's Pensees at wikisource.

The Way It Is

On NPR this morning I heard a fluff piece at the end of thank you to Bill and Melinda Gates for their support of something or other. The piece went something like the Gates' support each person's rught to advance himself.

How nice I thought. How darn right nice. But then I remembered. Bill Gates has done just about everything he could to capture market share of an operating system, an office suite, an internet front end, email client and so on. He has driven hundreds of companies out of the market with his success. It has been claimed over and over he has not violated anti-trust laws and copyrights and so on.

Each person has a right to advance himself but watch there are some of us who want more, want what you want, want as much as we can get. We are the juggernaut of competition. We will eat you up.

So what does one make of this? As a culture, we have high tolerance, even reverence for the guy who can give away lots of money even if it was rather ruthlessly accumulated.

We like such people so much we will even build football stadia at public expense for their privately owned professional football teams. Brower v. State, 137 Wn.2d 44 (1998).

Seems us baboozie would sell our souls for a pit of spectacle, power and rich guy worship.

An Analogy

An analogy for those who disagree with my statement of personal opinion:Every now and then I make a mistake while driving which upsets another driver and justifiably so. I usually realize my mistake and apologize for it, one way or another, by a signal of some kind to the driver I have wronged. Most wronged drivers will acknowledge both my wrongdoing and my apology. A small few will simply drive by and raise their fist and shake it or their hand with the middle finger prominently displayed. I think that small few wears real heavy on the spirit of community.

Judge Biggers

Today Judge Biggers received a guilty plea from Zach Scruggs for "misprision of a felony."

After a statement by Mr. Scruggs in which he apologized and expressed his genuine remorse, Judge Biggers replied:

The legal profession you say you love so much, you will not be a part of for
the rest of your life.

This statement was, simply put, unnecessary and mean-spirited.

Mississippi Floods and the Ogallala Aquifer

The Mississippi Drainage Basin is full of water, so full it is at flood stage in hundreds of square miles of area. The floods will cause much damage. Perhaps use can be made of these waters and perhaps some of the flood surge could be abated if --

If there was an extensive system of large pumps and large pipe systems for the time being within westward directed railroad right-of-ways to move vast quantities of flood waters to the west. Where in the west? To the thousands of wells which been drilled into the Ogallala Aquifer.

One of the major problems of the plains states is the need to recharge the Ogallala Aquifer. This would recharge the aquifer, take some of the flood surge burden off the Mississippi System, and make water available for continued circle farming and urban areas in the High Plains.

Flood Warnings

There are flood warnings for the entire length of the Mississippi River making up the western boundary of Mississippi. National Weather Service.

What does this have to do with the Scruggs Matter. I am not sure, but I think the flooding in Mississippi, and the hurricanes, have something to do with making the character of the people.

Speaking of floods in Mississippi read or listen to Rising Tide by John M Barry (1997). This is a story about the Mississippi Flood of 1927. You become transfixed by the magnitude of the trouble the Mississipians, mostly black, had to put up with by the rising waters and the hard life on the levee along the river near Greenville. Most interesting is that although the whites were allowed to leave the area, most of the black people were not. they were not allowed on the evacuation boats. Thuss they were forced to remain on the levees, they had nowhere to go, and to eat, to be given food which was not available on the levees, they had to work. They were again held and treated as slaves.

The True Believers

Over the past three months I have been reading the main blogs which address the Scruggs Matter. Every one of the them is against Dick Scruggs, Zach Scruggs and Sidney Backstrom. Also, those who comment at these blogs predominently share in the theme of the blog.

One would have thought there would be more balance and would have thought more balance in the comments generated by the entries in the blogs.

Every now and then a comment will be entered which is balanced or is clearly "on the side of the defendants." Such a comment will be rejected at one of the main blogs. On another, such a comment may generate further comment and that is good. Folo, though pretty one-sided, allows for such comments. The commentator has to have a thick skin though from time to time because true-believer Scruggs detractors will add their comments in opposition. Sometimes the counter - comments can get a bit dicey.

There is some human nature at work here. I think our aggression instinct comes into play in such matters. I also think our desire to be a part of a group enhances these instincts of aggression. See, Gustav le Bon, The Crowd (1895); See also, S. Freud, Group Psychology and the Analysis of the Ego (1821).

So what have we? Yet another example of the "True Beiever" phenomenon. See Eric Hoffer, The True Believer (1951) ; Wikipedia, The True Believer; see also, S. Freud, Civilization and its Discontents (1930).

"I require mercy not sacrifice"

The power of government in the Scruggs Litigation is now left with one target, one alleged wrongdoer, Zach Scruggs. He is the youngest, least experienced, least responsible for anything in this trouble. He is a person who, at his age, was still in the thrall of older people. The forces of government are now going to be used to "bring this young man to justice." These forces are being used to destroy him. To sacrifice him.

The government has gotten this young man in its sights by reason of a highly objectionable entrapment, an entrapment wherein a sitting judge used his long time friend, who betrayed his long time friend, to bring his friend into a bribe and to use his friend to bring others into that bribe. The judge's target was Dick Scruggs. The last object of destruction of this outrageous abuse of government power is Zach Scruggs. The others have all been gotten.

The power of government now unleashed on Zach Scruggs is completely out of proportion to the situation.

What comes to mind, what government over-reaction might come into consciousness? In recent memory -- Ruby Ridge and Waco. These examples may seem severe but I am not so sure. The power of government can bring great destruction, destruction which is not justified by the so-called wrong sought to be corrected or punished.

Government seeks to make a sacrifice of Zach Scruggs to its supposed majesty of the law.

Let's Hope the Case is On

Let us hope the Scruggs Case is still on with Zach Scruggs taking the lead. It is apparent Dick Scruggs had to plead as he did in order to give his son, Zach, a chance at proving his innocence. Zach Scruggs did not stand a chance with his case being combined with that of Dick Scruggs and Sidney Backstrom. One can hardly fail to see the due process problem here. Judge Bigger's denial of the motion to sever was way over the top.

I also hope the issue of "entrapment as a matter of law" will come up and that it will be used to vindicate Zach Scruggs. Again, we cannot have respect for the judicial system if state judges become agents of the Federal Government. Especially if the judge cum government agent pursued his mark when the mark did not pursue the judge and when the judge cum government agent was the actual person who proposed the bribe.

Wikiscruggs Is Now a Public Wiki

Wikiscruggs is now a public wiki. I have created another wiki which is limited. To get to the public wiki to read or participate go to http://www.wikiscruggs.com/. The limited wiki can be found at www.wikiscruggs.com/wiki.

Dick Scruggs, A Man of Character

The evidence in this case shows us that Dick Scruggs is a man of character. He got caught up in some wrongdoing and he is going to take a good bit of punishment for it. But I think we will see there is real character to the man.

I have known some people who have gotten themselves in a good deal of trouble but they have still shown character in the face of their own human failings. The one who comes first to mind is my law school classmate and long ago friend Egil "Bud" Krogh. Another is a man I only knew of as interested Seattle lawyer watching the life unfold of another Seattle lawyer, John Erhichman.

(And, it should also be said even though President Richard M. Nixon did wrong, I still hold that he was and will be understood to be a man of character too. I simply cannot share in the desires of many to pass judgment. There was much good in the man.)

This step in the life of Dick Scruggs will most surely be something from which he will derive great existential benefit. I also think he will share it with us and we will all benefit.

I seem to recall this "Judge ye not, lest ye be judged." That is a good proverb to keep in mind.

As time moves on I will say more about the character of Dick Scruggs as I think more about it.

Earwigging is Lobbying (And Judicial Corruption)

It seems clear the judicial culture in Mississippi commonly accepted the cultural phenomenon of earwigging. To earwig a judge means to talk privately with a judge about common things between the judge and the talker, to influence, to get a judge to go the way of the earwigger.

Earwigging is lobbying. It is similar to the efforts a lobbyist makes to sway legislator to the lobbyist's point of view. It is private and it is personal. More often than not it does not involve bribery. And, of course it does not have to involve bribery.

A few days ago, a New York lawyer, David Boies, in an interview with the Wall Street Journal Law Blog reporters said this:

I tried some cases before Mississippi state court judges who were just great,and I also tried cases in front of Mississippi judges who were just terrible. There is undoubtedly some real corruption – where a judge does something for money or favors. But I think that is a very small problem in Mississippi, and a tiny problem in most places. The bigger problem is where judges do things because they know the people, because they like the people, because they’re comfortable with the people. That’s a much more difficult thing to get your arms around, partly because its human nature. And the problem’s not unique to Mississippi. [Emphasis added.]

To earwig means, in its essence, to play on the human frailty of liking people whom we think are our friends, people we feel comfortable with, our hunting buddies, our golf buddies, our lawyer group buddies, the "brothers" in those "fraternities" of which we like to think we are a part.

Judicial Corruption in Mississippi?

When you think about it, it is hard to believe a lawyer with the savy of Dick Scruggs would have believed earwigging in Mississippi was "that wrong", that uncommon, or that a sitting state judge and the federal government would use the practice to lead a broken down, out of control lawyer, Tim Balducci, into a bribery sting.

It must have been common knowledge to the lawyers involved, as well as the judge, that earwigging was a common practice. And, that even though a violation of court rule and Rules of Professional Conduct, it was commonly engaged in. Witness Judge Lackey's agreement to enter an order ex parte on behalf of the attorney for the plaintiffs in the Jones Case to seal the file leaving it to be opened at the behest of the attorney who sought the sealing order.

Thus, I think the federal focus now must be to expand the the corruption investigation into the real problem in Mississippi -- corrupt judges and a climate of pervasive political use of the judicial system.

Suffice it to say, I doubt Dick Scruggs would be in the life changing position he is in today were it not for deep problems of judicial corruption in Mississippi.

Is it over?

In a way, the story of the Scruggs Litigation is just beginning.

What might we see unfold if we watch closely? The care of a man for his son and his law partner, the stupidity of Tim Balducci, the arrogance of Joey Langston, the hunger of a Circuit Court Judge to bring his friend to ruin for a bit of fame, the violation of a judge's duties to the bar association, the judiciary, the people of Mississippi, proscutors with vanity license plates advertising their love for a highly dubious Federal Rule of Evidence 404(b), and the list goes on and on.

One might conclude there is sin almost everywhere in this case -- lawyers, judges, politicians, law firm employees, insurance companies, tobacco companies, state attorneys general, lawyers and law firms who graze the landscape for poor souls who suffer at the hands and minds of "large" combines and small combines intent on making a buck no matter what the costs to the consumer and the enviroment (but no one really cares about the small combines (no assets and no glory -- read money)).

One would be hard pressed to find anything decent or uplifting in any of this. And, no one seems have enough personal integrity to step back a bit and, well, to bear witness to one's own complicity in the whole business. Yes, I mean complicity.

For now, all of us are home free. Dick Scruggs and Sid Backstrom are going to jail. Hopefully, people will be decent enough to give Zach Scruggs a pass. What one sees here, maybe, is the love of father and of a friend. Quite humbling I would say. Quite commendable.

All of this is very sad. A lot of it is very wrong.

But, what is really wrong, and very sad, is this: The system of law and justice in America has become corrupt. In its very essence, judges, prosecutors and private lawyers are really politicians -- people, who at bottom, exercise power. One gets the impression that law and the rule of law, and the judicial system is more a playground for those who love power than it is a place where the history of the human knowledge of right and wrong is written. Where the litigants and the judges are actually seeking to do real right by their fellows.

Those who use the judicial system as a playground of power are all right with this. They do not know any different. They have not had anyone tell them the human mind and spirit are capable of something which is much better. And, they are too proud, pugnacious and greedy for money and approval to care.

As one gets older, gets very close to end of his life, one sees the truth of the phrase "power corrupts."

Of the many roles played in this tale which may be the most sad from a standpoint of simple humanity -- man to man -- is the part played by Judge Lackey.

I will hold off from saying more -- I think more is to come about Ed Peters, Judge Bobby DeLaughter, Joey Langston and Judge Lackey, the state judge who became a government agent for purposes of putting the sting on Dick Scruggs.

For me, this episode in the history of America leads me to think this: Not one of the players in this sad drama could have read the authors and the books which have told us about ourselves -- Theodore Dreiser (An American Tradgedy), Sinclair Lewis (Babbit), Frank Norris (McTeague), F. Scott Fitzgerald (The Great Gatsby) or the New Testament.

The winners and the losers? I wonder. Is there really any difference? Is it possible this whole situation may have a simple and common basis in the desire of people to engage in war and the notion that material things are the primary measure of all things. (Or, maybe, unknowingly fulfill their own versions of the oedipus complex -- but I will save that line of thought for another time.)

Who really knows? I suspect there is something much deeper and simpler playing itself out in the whole Scruggs Litigation Matter. Who really knows? Someone will come closer to understanding and knowing what has really happened as time passes. Maybe.

But, the entire situation may never be known or understood. Like so much we think we know, the real facts, the real attachments of human emotion and motivation, the real truth will be lost to history.

Maybe in waiting we will finally come to know. But, I must say, I doubt it. I doubt it because we go into death and into history seeing the world, always, in the way that suits us best. We live out our lives in our daydreams, diversions. Pascal was right.

Eliot Spitzer, Helicopter Skiing, Long Haul Trucking

In an earlier post I fantasized Eliot Spitzer may have been set up. Oops. $80,000 is a lot to pay for the pleasures of the flesh. Even for the flesh of one as comely as "she who serviced #9."

Such an amount (investment in destruction) leads me to the (humble conclusion) big people with evil in their hearts and access to highly tasteful young women had nothing to do with Mr. Spitzer's trouble.

Well, we are all sinners. And, well, if we want to get overly excited about such things then maybe we should figure out a way to take various people out of history because of their dalliances. The list would be endless and we would be with great blank spots in our history.

On a more mundane level, Mr. Spitzer could have better "gotten his rocks off" helicopter or cat skiing in British Columbia, Canada. Or maybe "base jumping" from skyscrapers in Singapore or bridges in Colorado.

Or, maybe driving a long haul truck after 10 hours behind the wheel in conditions of ice and snow in the Montana Rockies pulling a tanker with 6000 gallons of highly hazardous material in it on the way to a laminating plant in Oregon.

Fed. R. Evid. 404(b)

It seems the government wants to use Fed. R. Evid. 404(b) to show predisposition to commit bribery on the part of Dick Scruggs, Zach Scruggs and Sid Backstrom. They was to use the information from Joey Langston and Tim Balducci regarding the Wilson Case before Judge Bobby DeLaughter to show in essence that the defendants had bribery in thier hearts when Judge Lackey, a government agent acting outside of his authority and outside of various rules applicable to him, put the sting on Tim Balducci. Balducci supposedly being the agent for the defendants.

This is very interesting. What is of real interest is whether it is proper to use 404(b) evidence to proof a predisposition to commit a crime. That, it seems, is what has to be established by the government in this entrapment case, this outrageous government act entrapment case.

One can imagine using such evidence to help establish a crime. One has a hard time imagining using such evidence, or having the right to use such evidence, to establish predisposition regarding defending against entrapment.

Or, looking at it another way, using such evidence to excuse the conduct of the government and Judge Lackey.

Eliot Spitzer

Years ago I worked with a person who was quite publicly visible in a certain jurisdiction and who was clearly in the sights of a certain extremely powerful organization. I recall a story of my friend being approached one night in a Holiday Inn by a very attractive woman who sought his attentions. He turned her down. With some cleverness and other come-ons my friend could have succumbed.

So I wonder, was Eliot Spitzer set up? He certainly did not have friends in high places.

Earwigging -- A Mississippi Tradition

Mississippi has a long history of an unusual pratice -- earwigging. Earwigging means "to annoy or attempt to influence by private talk ."

In the past century, Mississippi developed rules of trial practice which were directed toward bringing an end to the practice. The Mississippi Law Journal in 1936 - 1937 discussed such a rule -- for example Chancery Rule 30:

Rule 30.-EARWIGGING THE CHANCELLOR PROHIBITED. No person shall undertake to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated cause then pending in the court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith; nor attempt in any manner except as above stated, to influence his decision in any such cause or matter. Any person who shall violate this rule, knowing that such conduct is prohibited, shall be guilty of a contempt.

Proceedings of the Thirty-First Annual Meeting of the Mississippi State Bar [comments] ,9 Miss. L.J. 6 (1936-1937)

This rule was commented on as follows:

Some lawyers have ingenious methods of evading this rule, and it is almost impossible sometimes to prevent ignorant laymen from approaching the chancellor about a particular law suit. Almost every term of court someone attempts to talk to me about their cook who has a divorce case in my court, and how much she has been wronged. They always carefully preface their conversation with the statement that they wouldn't try to influence the court for the world.

Id.

Current Mississippi Circuit Court Rules (like other Mississippi court rules) include a rule prohibiting earwigging.

Rule 1.10 EARWIGGING PROHIBITED No person shall undertake to discuss with or in the presence or hearing of the judge the law or the facts or alleged facts of any case then pending in the court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith; nor attempt in any manner, except as stated above, to influence the decision of the judge in any such case or matter.

The tradition of earwigging is so common the rules adopted by the Mississippi Commission on Judicial Performance include a rule prohibiting earwigging. Commission Rule 5.H "Earwigging Prohibited."

This rule is similar to the Chancery Court rule above regarding punishment for rule violation. Punishment for "knowingly" violating the rule may be "contempt." But, the earlier Chancery rule said if one violated the rule "[he] shall be guilty of contempt."

The current court rules do not have this "contempt" provision. That is to say, a specific punishment is not provided for. Earwigging, is not a misdemeanor or a felony. It is just a rule of court.

So in the Scruggs Litigation what do we have in relation to this historical phenomenon of an usual Mississippi tradition – earwigging?

It seems we may have a situation where a trial judge engaged in earwigging with the attorney(s) for the plaintiff in the Jones v. Scruggs case. Evidence of the earwigging is found in the fact of the very unusual ore tenus motion whereby the judge entered an order sealing the file of the case from all the world open to be unsealed in the sole discretion of the attorney who filed the case.

Next we have the same judge again engaging in earwigging with a person who was a friend of one of the defendants in the action about the case but only such that the judge might know that all the defendant might want in the case was that it be sent to arbitration as provided in the agreement between the parties.

We also have two old friends talking about the retirement of the older friend and the new law firm of the younger friend.

Then, after several days, the judge decides earwigging he had wrongfully engaged in violation of a court rule could lead to something better. An effort to use his friend to bring down a lawyer who was not liked by a segment of the Mississippi bar and judicial system and representatives of the Office of the United States Attorney.

It also may have been a contributing factor that the judge knew his wrongful earwigging could lead to something against him. He was a member of the Mississippi Commission on Judicial Performance. The Commission had recently been involved in disciplinary actions where the judge disciplined had engaged in ex parte contact with attorneys and parties.

The judge becomes an agent of the U.S. Attorney. In agreeing to do so, the judge agrees that he will violate the authority of his office, State Judges are not elected act as agents for the government of the united states. He also violates the principles of separation of power between the executive, judicial, and legislative branches of government. And, significantly, on his own he decides it is permissible for him to violate numerous provisions of the Mississippi Code of Judicial Conduct.

Making matters even worse, the judge in question was and is a member of the Mississippi Commission on Judicial Performance.

Committed as an agent for the federal government, the judge begins to use his friend to capture the target, Richard Scruggs. The judge pursues his friend.

At first he engages in more earwigging with the attorney for the plaintiff in the Jones Case. He then says he is going to recuse himself and tells his other earwigging partners. This was before he became a government agent. Once an agent, he says he is not going to recuse himself from the case. Obvioulsy, he wanted to pursue his earwigging of his friend, his rule violating earwigging to trap his friend and perhaps his friend's friend.

Weeks go by. During that period, the judge's friend engages in actions which are entirely irrational regarding the creation of a law firm with a non-lawyer. The friend and the non-lawyer write strange and overly aggressive letters to a local lawyer who is criticizing the new law firm and is saying the combination of a lawyer and a non-lawyer in a law firm is a violation of the Mississippi Rules of Professional Conduct.

The judge knows all about his friend's meltdown and he knows of the content of the letters. At this point he then begins to push a scheme whereby he convinces his friend that he is in desperate financial trouble. He needs money and he needs it fast. The young friend goes along and agrees to help. He is now trapped. Aware that another lawyer in the state was just sentenced to 11 years in prison for alleged wrongdoing with a judge he agrees to become involved in the judge's scheme to trap his friend.

If the foregoing is true, what the judge and the federal government have done is extremely troublesome. We cannot have a system of justice due the respect and trust of the people if this sort of conduct is allowed.

Jefferson Davis, Mississippian

This morning I read the first few chapters of Shelby Foote's Civil War Narrative. I read about Jefferson Davis, his youth, his character, his desire to be a leader of his people, his tenacity and his heroism. Quite remarkable. We have little knowledge of the way in which realities impose themselves on character, even sometimes flawed character. As it is said, the line between good and evil shifts in the soul of every man. Every man! I find it more than passing strange people these days and in the Scruggs Litigation find it so easy to judge. I find it sad, and I find it immoral.

And, that is what I also want to say. What to we look for in the law, in judging? We want to have faith in the process and the people. We know there is an animating principle at work in the core of the process. So what is it? I listened to Abraham Lincoln's rebuttal to the speech Stephen Douglas gave about Kansas - Nebraska Act, the one he gave in Peoria, Illinois. The first response Mr. Lincoln gave to one of Douglas' speeches. What was the essential point? It was simply this, morality.

I particularly object to the NEW position which the avowed principle of this Nebraska law gives to slavery in the body politic. I object to it because it assumes that there CAN be a MORAL RIGHT in the enslaving of one man by another.

It was immoral to treat another human being as a chattel. And, that was it, and that was all.

How We Should Look at Things, Part 2

What should we be looking for when we observe the processes of law? Taking sides and then watching the process as if it was a game does not seem very edifying. What a serious citizen should be looking for is much deeper.

It is much deeper because in the matter he is actually observing forces playing themselves out. And, when they do they set the stage or the record for the way things will happen in the future.

The serious citizen is actually "watching the mind of man made." He is observing the creation and refinement of culture. Not only is he watching history in the making, he is watching the filial sense of man progressing or going backward to a darker time.

So one hopes in observing the Scruggs Litigation he is able to see the positive force of a soul of the law animating everything being done, especially the work of the judge and the jury.

How Should We Look At Things?

When I think about the process of the law as presented by the Dick Scruggs Matter I wonder what it is I am to do? What should a reasonable person bring to the situation? Should I be one of those who takes pleasure in possibility that someone is in trouble? Should I become a defender of those who are in trouble? Should I just be an observer reporting what interests me about the situation. Should I be a commentator with a bias?

None of these approaches seems right to me. If I take a side I think I want it to be the side of souls of those who are involved in the the situation whether they be the souls of the defendants, the representatives of the government, the witnesses who are agents for the government, the witnesses who have gone to the side of the government and who are now telling things about friends, judges who have become government agents, witness who are trying to save themselves and in doing so are rationalizing that the hurt they bring to others is permitted and righteous. No, I want to be on the side of the souls which are being refined as a result of the involvements of those who are in the care of those souls.

Does this seem odd to you? I suppose it does.

Today, I have been thinking about the souls of those who seem to be feeling loss because Judge Vinson dismissed the "indictment" against Dick Scruggs in the District Court for the Northern District of Alabama. The representatives of these souls are angry. They say the judge has helped out a "rich, white guy." In the core of their beings they do not mean what they say. Or if they do, they should not.

If they have a complaint about Judge Vinson's efforts they should try to show where Judge Vinson went wrong. Personally, I do not think Judge Vinson's decision was wrong. It may be something a person does not like because he wants Dick Scruggs to be punished for being what he is, but as far as the law is concerned I do not think the judge was wrong. If he was, well, tell me so and explain it. My conclusions about things change in light of reason, in light of truth. If I am loyal to anything, I hope I am loyal to the law as it is applied to the facts.

The Justice System? Justice or War?

The case against Dick Scruggs in Alabama was dismissed yesterday. The Order can be found here. One of the main commentators in these matters said this about the decision:

UPDATE: I read it, and all I can say is thank goodness, it has been a long time coming -- finally, a case where the criminal justice system doesn't railroad a famous, rich, white guy! Famous rich friends of Dickie Scruggs -- it's party time!

This cynical comment tells us something about a lawyer's view of the law, or at least the lawyer commentator's view of the law. His side lost. His enemy won.

So how to address the work of Judge Vinson? Make fun of it. Tell people Judge Vinson is a partisan for Dick Scruggs. The comment does not show care or respect for law. It also shows great disrespect for Judge Vinson.

The commentator did not address the issues Judge Vinson decided and the law was applied by Judge Vinson as to the issues and the facts pertaining to the issues. Instead he simply makes an ad hominum attack upon Judge Vinson's work.

A true lawyer would comment on the law not upon personalities. What is at stake in these proceedings is not winners and losers but the law. Unless of course law is not about law but instead is simply another forum for war.