There is more,

Reading NMiss Commentator lately I have begun to think there is more about the Richard Scruggs matter which interests me. So, this site will be re-awakened.

I became interested again when I read a few comments at this run of comments.

In the past, I wondered why Judge Lackey became "a prosecutor" ('s) agent regarding Richard Scruggs. At the location mentioned, I see that others seem to be raising points which question Judge Lackey's real interest(s) in the whole Scruggs matter. These interests are quite oblique. The judge is presented as a hero of the law. But, I wonder. I hope he is pure as the driven snow (a term used on the Northern Tier), but I wonder.

Before, I have raised questions. Is it right for a judge to become an agent of the FBI? What does Judge Lackey's interest in law enforcement that say about the role of judges? Should the judge 's state tolerate this? What do the lawyers in the state think? Are they not troubled, at least a bit, at least enough to say something? Alas, I can find no criticism.

I recall implying, at least, that it seems quite untoward for Judge Lackey to be taking advantage of a friend of his, a young lawyer whom he had "mentored" -- to ruin his life. Ruining his friend's life enabled him (Judge Lackey) to bring down (I think he said something like this --Judge Lackey's nemesis? -- Richard Scruggs. (I am sure I said this somewhere) .

I recall saying (or at least thinking) why is this judge playing on his friend Tim Balducci to suck him into a bribe? Balducci merely engaged in bit of earwigging -- something quite common in Mississippi. So common the system had to say something about it -- what other jurisdiction has said something about earwigging? No one else has heard of the idea -- indeed when we do we mispell the term "earwhigging."

The good judge worked on friend from the spring to the fall as best I recall to get something from him about Richard Scruggs. My goodness, would any of you do this?

More impotantly, is this something judges do? -- become FBI agents? If so, the game played in Mississippi is quite odd, to say the least.

Judge Bobby DeLaughter and Earwigging

The government is going to have a tough row to hoe to convict Judge Bobby DeLaughter.

It is going to have to show that DeLaughter knew he was being bribed, knew that he was actually knowingly involved in the efforts of Richard Scruggs and his cast of characters (at the time well thought of by the community and the sub-community of lawyers) to influence him.

My guess is DeLaughter will show he was being "earwigged." Earwigging has a rich tradition in Mississippi. It is the only state that has specific rules devoted to trying to minimize earwigging. The Mississippi judicial conduct commission proceedings are replete with conduct involving ex parte contact between judges and litigants and others – earwigging.

The evidence at the DeLaughter trial will include all sorts of facts about the extent earwigging takes place in Mississippi. We will learn judicial cases are, in essence, political events whereby the judge treated like a composite of individuals making up a legislature. We will learn that lawyers and litigants and their friends have routinely contacted judges about cases and have done so in a host of imaginative ways. That is, that judges are routinely lobbied about the cases before them. We will learn that money does not have to change hands. We will learn that judges dearly like to be loved and thought well of by members of the community, members of the community they respect.

We may even learn what P. L. Blake was doing for his $50 million and what the hell Patterson was doing for his $80,000 per month.

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.

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?

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.

Monsters and Motivations: The Saga Begins to Unfold in Greater Depth

Some of Judge Henry Lackey's testimony or abridgements or paraphrases of the testimony can be found at Folo (I did not know the kind of monster we were dealing with . . .). Here is an interesting chunk. Cal Mayo is doing the questioning (but not very well it should be added, but maybe not all the questions and answers were reported), he is the attorney for Dick Scruggs.

Q: In May, Balducci had made no quid pro quo?

[A.] He was lying to me and I was lying to him, was what was happening.

[Q.] Did you have any discussions about recusal with FBI or US Attorneys office about your recusal before you did it?

[A.] Sent letter recusing myself, my decision. Did not feel I was getting anywhere, was frustrated with the situation. I reported it to the FBI agent.

[A.] After talking to the FBI agent and after realizing what a monster we were dealing with and the lives he had probably destroyed and the young lawyers and their families he had destroyed, I got back in it.

[A.] The monster was Dickie Scruggs.

Q. Who told you he had destroyed those lives.

A. I did not realize what a monster we were dealing with fully until now. I realize what he has done to destroy our profession, more than anything in my lifetime. Tim Balducci had told me Scruggs knew.

A. Did not discuss the lives Scruggs had destroyed at that time.

It seems clear Judge Lackey had an agenda of his own in this matter. That it was an agenda which preceded his contact with the US Attorney. Before he went to the "FBI agent" (did that come after he had talked with the US Attorney?) he said, "[d]id not feel I was getting anywhere, was frustrated with the situation."
What was the situation? It was, Lackey said, in "May, Balducci had made no quid pro quo?“He was lying to me and I was lying to him, was what was happening.” That is, Lackey had formed and intent to get something out of Balducci which would give him some power over Balducci. But it was not forth-coming, he was frustrated.

Lackey seems to have had the opinion that Dick Scruggs was a "monster" and had "destroyed lives" and "destroyed" "young lawyers and their families." He was going after him, Dick Scruggs, and he was going to use his friend Balducci to get to him. To get to the monster who had destroyed lives and destroyed young lawyers and their families.

Lackey had an agenda, a purpose, in this. Balducci's contact with him in March gave him a pretext to pursue that purpose and a pretext to destroy his friend Balducci in the process (war is justified by the presumption that the object of war is evil). One cannot be sure from what one knows of the Lackey testimony but it would seem there is more than a hint of the Judge's relish in going after Dick Scruggs -- the words, monster, destroy lives, destroy young lawyers and their families indicate more than objective interest.

"So what," you might say.

Let me explain myself. That Lackey may have had a personal agenda in this, a mission of his own, is certainly of interest regarding the entrapment issue, which as you know is of importance to me. But more interesting and in line with what I said in my last post, Lackey's motivations seem to make for a more interesting story, seem to express more depth about the "set piece" of the Scruggs Matter. There is greater depth to the history.

Just as Dick Scruggs creatively with friends and compatriots pursued the asbestos cases (I had an early part in the defense of some of the non-Scruggs, non-Motley, asbestos cases in Eastern Washington but got out of them and handed them off to one of my partners), just as Dick Scruggs with Attorney General Moore and various attorneys general (AG Christine Gregoire of Washington was one of the major players) pursued big tobacco, just has Dick Scruggs "got his rocks off," pursued his career, pursued success, pursued his desire to advance himself, pursued justice, so Judge Lackey creatively sought an object which would benefit him, satisfy his urging: to wit, the destruction of Dick Scruggs.

I think Lackey saw the destruction of Dick Scruggs as a worthy goal and one which would advance his reputation. Each of Scruggs and Lackey took their energies, their libido, their creativity and pursued objects the control or conquest of which would have payoff or gain to them.

And, just as Dick Scruggs seemed to push to the outside of the envelop doing things others more ethical would not have done, Judge Lackey has seemed to push the outside of the envelop to gain his objective, that is the cajoling of his emotionally manic and morally weak friend, Tim Balducci, into a crime of bribery proposed by the Judge himself which would very rapidly trap Dick Scruggs and bring his downfall.

In the lives of these two players, Dick Scruggs and Henry Lackey, there is much interesting material as to motivation and instinct. This makes the story of the Scruggs Matter much more interesting and indeed, much more instructive to those who might be interested in more than the usual comic book theme of war between good guys and bad guys. The matter is not that simple, nor that inconsequential.

The Manners and Morals of Gulf Coast Lawyers and Judges

The recent events in Jones v. Scruggs (Katrina Group remainder) are most interesting. Judicial actions have taken place in Jones and other civil cases in the area involving Dick Scruggs which foretell or should foretell all sorts of interesting developments. I sure hope someone with a clever mind and a mind for digging beneath the pleasant surface of things is working on the matter -- with the intent of writing a true history of it or at least using it and speculations about it as the backdrop of a bit of fiction.

One observation -- the entire house of cards (the Katrina / State Farm litigation and the professional success of Dick Scruggs) is falling or has fallen as a result of the bribery entrapment of Dick Scruggs by Judge Henry Lackey, a Mississippi Circuit Court judge. That is to say, the main character in the story will be Judge Lackey.

Judge Lackey seems to be the local hero of the moment. He's riding real high right now and he knows it. His self-satisfaction was well apparent in his testimony the other day in the Jones case before Mississippi Circuit Judge Coleman.

I speculate there is a lot more to the story of Judge Lackey -- a whole lot more. I doubt he was the innocent he says he was in the bribery entrapment. He "professes too much." And much of what he says is simply unbelievable (to a person who has spent the last 38 years in the legal profession many of those years being years trying cases to judges (not to juries)).

The judge would like us to believe he was deeply troubled by his meeting with Tim Balducci in March, 2007. What he would have us believe does not ring true. I wonder whether he jumped on the opportunity presented by the stupidities and emotional weaknesses of his friend to pursue an agenda of his own, as some sort of crime fighter to bring down "the monster." He says he did not realize that Dick Scruggs was a monster until after he got involved. In his testimony the other day he threw that into the mix after catching himself saying he suspected Dick Scruggs was a monster he wanted to get at the time of his first meeting or shortly thereafter, before he went to the US Attorney.

I wonder did he become the agent for the government in the entrapment because the government wanted him to become the agent or did he become a government agent because he wanted to be a government agent for purposes of his own. And, if so, were those purposes really his purposes or was he pursuing the purposes of others, of a group, of some sort of gestalt which had become ascendant in a certain aspect of the legal/judicial community? Judges do not act on their own, they are consummate conformists. What wants to imagine as leadership is most often judicial expression of conformity.

There are a good number of people in Mississippi who would like to believe Judge Lackey is a great guy, a great leader. They, and the judge profess too much. I am suspicious. I wonder whether I am the only one.

Back to what I hope -- that someone with time on his or her hands and some investigatory and writing skills will tell the truth about the situation and will flesh out these strange and unusual characters who have popped up and who are popping up as the days progress in this bit of history of the manners and morals of the Gulf Coast legal/judicial system.

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.)

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.

"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.

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.

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.

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.

Public Corruption in Office of US Attorney?

Last night's 60 Minutes piece on Don Seigelman raises concern about the US Attorney's Office. The question must be asked: Is the Office of the United States Attorney being used for political purposes? Is it selecting and processing cases which have political objectives rather than law enforcement objectives? Are the motives of the prosecution politics rather than law enforcement? Is the goal (a)the exercise of power or (b) the exercise of law enforcement and justice?

Such questions are extremely important when government actually induces conduct which is then said to be criminal. And, in the Scruggs Litigation, extremely important when a sitting judge in a particular case is used as a government agent to cause a person who comes in contact with the judge to accept a bribe the judge has proposed.