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.

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.