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.