This morning I sent a comment to Folo asking Observer to expand on a statement he made. So far no response from Observer or anyone else for that matter. Maybe the thread has been closed, maybe people just got bored with the questions I was raising. Here is what I said and asked:

Observer - In the past you said “In the post-Paul Minor world, Judge Lackey apparently was afraid someone was trying to set him (i.e., Judge Lackey) up. The people that were hunting for Dickie Scruggs was the FBI. Judge Lackey found himself in an awful position.”

Do you think he (Judge Lackey) may have thought someone was working with Tim Balducci to set him up?

Do you think he knew anything about, or had heard rumors about, the Wilson Case in Judge DeLaughter’s court?

Do you think he thought there was surveillance of him independent of Balducci?
I think the judge even said somewhere he was concerned that someone might be looking at him back in March of 2007.

The entry and the thread can be found here at Folo.

Judge Lackey: Questions, Something Does Not Ring True

I am still confused and suspicious of how the FBI got to Dick Scruggs. The agent for the FBI was a Mississippi Circuit Judge, Henry Lackey.

Judge Lackey was assigned the Jones v. Scruggs case. The day of the assignment he entered an ex parte order sealing the case file. Common law makes case records public records. He signed the order because the lawyer for Jones, a man named Tollison asked to sign the order.

Next, a Tim Balducci calls Judge Lackey. He contends the case should be sent to arbitration. Balducci is a friend of Dick Scruggs.

Here is where it gets interesting. On more than one occasion on the Folo Blog commentators have said that Judge Lackey thought he his actions might be under surveillance. Supposedly, he waited about two weeks before he said he went to the United States Attorney who then put him in contact with the FBI.

One commentor said that Judge Lackey became physically ill after his meeting with Mr. Balducci.

What I am struggling with is why Judge Lackey would become physically ill or, if not physically ill, emotionally distraught. I wonder? Did Judge Lackey really think that he might be under surveillance? Why would he have thought that? Was he aware of what was happening or possibly happening regarding Judge DeLaughter in the Wilson case?

Why would the judge think that he might be under surveillance? Did the judge have a reason to think his conduct, in the past, and as a judge might have caused someone to become suspicious of him?

From the judge's testimony and public statements it does not seem that he was troubled very much by what Tim Balducci had asked him to do, if he had really ask him anything. He did not seem to be the type of guy who would be come physically ill because a lawyer may have earwigged him.

That he became ill because Balducci approached him is, well, it its beyond reason.

So, why did Judge Lackey become ill? Why did he think the FBI may have been surveiling him? Was it because he was talking to Balducci and he thought the FBI may have been surveiling Balducci? But if that was the case why did he wait so long to go to the US Attorney. Was it because he had been the situation before? Was talking to judges "out of school" a common practice everywhere, in Calhoun County? Did the judge know something about the Peters, Langston, Balducci, Judge DeLaughter situation in the Wilson case?

Does the out of court politics of law in Mississippi have a much deeper significance that anyone is willing to admit to?

Something is not quite right. And, it also seems of interest that Judge Lackey is being lauded for his efforts and that the Mississippi Bar association is giving him awards. Why is all this happening so fast?

Much more is to be unravelled.

A Justice for American Judges and Lawyers Today

The other day, I listened to one of our Supreme Court justices, Anton Scalia, talk about a book --Making Your Case: The Art of Persuading Judges -- he had written with another, a writer employed to write by one of the larger law book publishers, a "household name" in the legal profession. There was not much to listen too.

The judge was using the heights of his position to team up with a name one sees on significant publications of the law book publisher to tell lawyers how to make the lawyer's case to judges. And, to make your case, how to dress, how to write a brief, how to make oral argument, how to, how to, etc.

Lawyers with some spare change have many such books on their bookshelves (if they really have bookshelves outside of the bookshelves of their law firms). Such books not about the law, the history of law, the purposes of law, the major concerns of law over time. No, such books are books about how to "trick the law."

What I mean by "trick the law" is how to control the system of law and judges so that it works in one’s favor, so that it is possible for a lawyer to win. Tricking the law is about how a lawyer would go about getting his or her success in the law. Tricking the law books are all about how to conform so one can win – gain material success and favorable public opinion in the profession of the law.

Justice Scalia, a man lionized by many within and without the profession of the law, went on to say lawyers are merely "facilitators", that they do not contribute anything real or substantial to the process of life. They just help things along. I think I remember that as the essence of what the justice said, but I am also sure he would say I am simplifying it too much though.

I had never really thought about lawyers in this way before -- as facilitators. Or, if I had, I denied the truth of the characterization. The lawyer of my imagination has always been a person who, acting with courage and conviction and intelligence as best God gave it to him, would do more than just facilitate, he would lead and he would try to help the law evolve. I have naively assumed that a good lawyer would use his effort to help the filial sense of being evolve into finer thing.

I have had lofty thoughts about the law and lawyers and still do. But the justice’s remarks lead me to think I am out of step with the times.

Maybe a lawyer is just that, a facilitator. That a lawyer should be just that, and should aspire to be only that – a facilitator helping himself and his client trick the law for success and profit.

Does not seem much to aspire to.

Maybe we will be saved from this pecuniary view of the legal profession and the judiciary by a book, after the fashion of Babbitt by Sinclair Lewis. A Babbitt book about a lawyer rather than a realtor (trademark).

Earwigging for Some but Not Others in Federal Courts?

In Richard Sobol’s book Bending the Law: The Story of the Dalkon Shield Bankruptcy , a rather momentous example of earwigging of a federal district court judge is described.

In the Preface to the book, Mr. Sobol describes how A. H. Robins Company, the manufacturer of the Dalkon Shield, sought to consolidate the Dalkon Shield Litigation in the federal court in Richmond, Virginia before District Judge Robert R. Merhige, Jr., a local law school graduate of the University of Richmond, and an "enthusiastic booster of both the city and the university."

The efforts to consolidate had been opposed. Robins "finally achieved the consolidation of the Dalkon Shield litigation in Richmond before Judge Merhige by filing for bankruptcy." Mr. Sobol reported Judge Merhige "is a neighbor of E. Claiborne Robins, Sr., who is a celebrated figure in Richmond. Three weeks before the bankruptcy filing, Merhige met in his home with Robins, Sr., and E. Claiborne Robins, Jr., the president of A.H. Robins, to discuss the company’s plans with respect to bankruptcy."

The rest is history. The liabilities of the company and its officers, directors, attorneys and insurer were transferred "to a trust with limited funding, and to allow the Robin’s shareholders to be paid the value of the company in excess of the fund before it could be determined whether the individual entitlements of the women injured by the Dalkon Shield exceeded the amount of the fund, or indeed, the total value of the company."

Thus, it might be contended there there are differing standards regarding earwigging and its progeny from case to case in federal court.

One would have had a different view, maybe a more enlightened view, of the Scruggs sentencings had Judge Biggers made some mention of the A. H. Robins - Merhige earwigging. I wonder if he would have found a difference between it and the initial earwigging of Judge Lackey by Timothy Balducci to get the Jones case sent to arbitration?

Will Mississippi Change the Social Ethic of Its Legal Culture?

The leaders of the social ethic of the Mississippi legal culture are handing out accolades these days. For instance an award was given recently to the Circuit Court judge who became an agent of the federal government who entrapped people in a judicial bribe which he had proposed.

The United States District Court judge who handed down punishments -- prison and fines -- to the people who got caught in the sting is being congratulated for his hard bitten personality and the severity of the punishments given the limitations the judge was under due to plea bargains. He is also being congratulated for speaking for himself and not necessarily for the court.

So what do we have from all this? We have heroes and villains. The good guys are congratulated, bad guys are in jail. The good guys are really good, and the bad guys are really bad.

Case closed, the Social Ethic of the Legal Culture of Mississippi has been cleansed. Now everything can proceed as usual. I would not bet on this. Things are more complicated than they seem. What we have witnessed in the Scruggs Matter is only an emanation of a social ethic of the legal culture of Mississippi.

Scruggs Matter and the Oedipus Complex

The Scruggs Matter may provide food for understanding and speculation about the Oedipus Complex.

The Oedipus Complex has to do with the love - hate relationship of the child to the father or father figure. Freud, as I recall, speculated that the boy child wanted to replace the father in the affections of the mother. Maybe, but the Oedipus Complex in my mind has to do with relations of any person who seems to have an unusual affection for and veneration of persons in positions of power or who give the impression of power.

Of interest, of course, is the amount of respect almost awe some of the main players in the Scruggs Matter dialogue seem to have for "judges", lawyer fathers, and mentors. And, at the same time, seem to have, or at least show, great sentimental concern for animals in distress and fathers long gone. That is to say on the one hand some of the players can be downright mean and on the other downright nice to small critters in distress. I can understand the latter but do not understand how it can co-exist with the former. But then, in America one encounters this on a daily basis, especially in hunting country. (Reminds me of the young man I met while staying at the warden's house at the Minnesota Penitentiary (what a nice name for the place) in St. Cloud. He was in for "statutory rape" he said. On one of his arms he had a tattoo his buddies had done for him using a needle, thread and India ink. It said, "Mother.")

Maybe more on this topic and my approach to the Oedipus Complex at a later time. I will have to see if it captures my interest more than in a passing way. Right now thinking about it is better than listening to a book while I go about my business. What I seem to be seeing in the matter is enigmatic. It has been impressing me for the last four hours.

Judge Biggers: A View Up To the bench.

Judge Biggers does not seem to comport himself while acting from the bench with any sort of true detachment, objectivity, impartiality, understanding or compassion.

He seems to have taken the Scruggs matter personally. He seems intent on doing harm rather than doing justice.

Reading the transcript of the Dick Scruggs sentencing hearing one gets the impression Judge Biggers seems to think Scruggs offended him (and his friend Judge Lackey?) and for such offense of Judge Biggers he should be punished.

Federal judges should speak for the court, not themselves. Adherence to the fact that a federal judge is speaking for the court would have, should have, a moderating influence on the judge who happens to be on that particular bench at that particular time. More importantly the public impression and understanding of the court then is directed to the court itself, not some person who was fortunate enough to be appointed to the court by reason of the political process.

One senses there is a great deal more to the story of Dick Scruggs and the trouble he finds himself in. It looks as though the trouble and concern for the system of justice may extend deeper into the judiciary and legal system in Mississippi and indeed America.

Why not tell the whole story?

It is interesting and perhaps telling that the bribe was proposed by a Mississippi judge. A judge who was earwigged by a close friend. A judge who then took his friend into his confidence and then, when the friend was hitting rock bottom financially and emotionally, proposed that his friend pay him a bribe - $40,000. Obliging, the friend, and then caught accepting the judge's proposed bribe of himself, proceeded to entrap his friends into the bribe in order to lighten the load he and his mentor judge had put on his life. There is much more to this sad tale than the shortcomings of Richard Scruggs, Sidney Backstrom and Zachary Scruggs.