Scruggsellaneous odds and ends

In the crunch of daily blogging, inevitably some things get left behind.  Sometimes they stay left behind, but sometimes, through luck and perseverance — like the Rachel finding Ishmael afloat on Queequeg’s coffin while searching for its lost children — these castaways are rescued.  Here are some of them from recent days and weeks:

— In the Renfroe v. Rigsby case, in federal court in Northern Alabama, Scruggs filed a petition for a writ of mandamus with the 11th Circuit.  Although I’ve known of this since February 1, the day after it was filed, other stuff came up, I couldn’t find it right away, etc. etc., typical blogger’s lament.  The writ asks the 11th Circuit to find that Judge Acker committed an abuse of discretion in failing to recuse himself from the case.  Here’s a post I wrote about Acker’s decision to deny the motion to recuse.  Here’s another about the implications of Acker’s denial of Scruggs’ request to certify an interlocutory appeal, forcing him to file a writ of mandamus. (As it turns out, Scruggs admits in the petition that an interlocutory appeal may not be taken from the denial of a motion to disqualify a district judge, so his request wasn’t proper in the first place). Click here to read a copy of the petition for mandamus.

The mandamus petition didn’t say anything I haven’t seen before.  One argument that seems so tired and worn-out that even Scruggs’ lawyers can’t summon any enthusiasm for it is the one about the law enforcement exception in Judge Acker’s injunction.  The injunction required the Rigsby sisters and their agents and all those who act in concert with them, "with the express exception of law enforcement officials," to return to Renfroe’s attorneys thousands of copies of State Farm claims documents they took.   You know by now what Scruggs did, so Renfroe’s lawyers wouldn’t get them — he called up Hood, they talked it over, and Scruggs sent his docs to Hood, who already had his own copies.  Hood’s office sent some communications to Scruggs to try to give him some cover, then later apparently got a little spooked and sent another letter, after Scruggs had already gotten rid of the documents, saying only give them to us if it doesn’t violate Acker’s order.  

The argument is that Scruggs did nothing wrong in sending his copies to Hood, because Hood is a law enforcement official and there’s that exception, don’t you see.  This argument just seems to get lamer and lamer each time I see it, lamer than a three-legged mule, lamer than a convention of Elvis impersonators, lamer than the word "lame," which is totally out of style. To gauge how lame, let’s refer to the transcript of the February 6 State Farm v. Hood hearing, and let’s let Hood tell it,  starting on page 111:

Q. My next question is, when Judge Acker issued an order for Dick Scruggs to turn over the very same documents which your office already had, your office asked Mr. Scruggs to bring them there, didn’t they?

A. There again, the premise of your question is they’re the very same documents. I told you I don’t know. Secondly, I did send — well, Courtney sent a letter to Mr. Scruggs asking for those documents. That is correct.

Q. You saw Courtney’s letter asking Dickie Scruggs to send the documents to your office?

A. There was some communication. I don’t know what form. I didn’t see it. No, sir. That’s my — there again, I’m trying to state what you need to be asking Courtney.

Q. And you know, don’t you, that because Mr. Scruggs defied a court order and gave the documents to Courtney Schloemer, that Judge Acker held him in criminal contempt? You know that, don’t you?

A. You know, I think it’s debatable. I know that the court found that it was in contempt, but I think there was some law enforcement exception and I — I did read something that the — that the — the Ninth Circuit ruled that there was a law enforcement exception. So I take — to answer your question the best I can, yes,  the judge held him in contempt for delivering those documents. I do not agree with your characterization of whether or not he should have — he was actually in contempt.

MR. ROBIE: Your Honor, I’d like to show the witness Exhibit 13, the document we’ll mark as for identification.

THE COURT: You may do so.

(DOCUMENT TENDERED TO WITNESS)

A. Okay.

BY MR. ROBIE:

Q. Mr. Hood, is this a letter that your office sent to Mr. Scruggs asking him to turn over the documents to you rather than to Renfroe pursuant Judge Acker’s order?

A. I don’t know. I’ve never seen the letter. So I don’t know.

THE COURT: All right. Wait just a minute. Take a little time to read it if you would, General Hood. Let me do the same. So if you’ll just give me an opportunity to read this letter, please.

(COURT EXAMINED DOCUMENT)

THE COURT: All right. You may proceed, counsel.

A. Yes, sir.

BY MR. ROBIE:

Q. Is that a letter that Courtney Schloemer sent out for your office?

A. There again, I don’t know if she sent it out. I have read it and I’m familiar with — that Courtney sent some document to him asking for it. And then she sent him another letter saying that we’re not saying defy the court’s order. I think there was a clarification. I think there was another letter, e-mail, communication, some type documentation. I haven’t seen either of them, though.

Q. Did you talk to Mr. Scruggs between the date of Judge Acker’s order and Courtney sending him a letter telling him to bring the documents to your office?

A. I have been told — and I don’t know if I actually read any of the transcript — that Mr. Scruggs said that he called me. And, there again, that would have been — from my understanding — I try to get some dates straight. It would have been December 9th, which was a Friday. I know that on that day of the year, which would have been ’06, I was down here again on my anniversary on the 9th, that Friday night and — here in Natchez.

THE COURT: I hope your presence here today, General, won’t stop you from coming to Natchez.

 A. Yes, sir. My wife loves it and I do too. And we stayed here that night. The Saturday night I went back. My folks had their 50th anniversary in Jackson. We went out that night. I don’t know when I talked to Mr. Scruggs. I do agree that I did. I don’t know the date. I don’t even remember the conversation. I remember driving down with my wife on the phone the whole time and feeling bad about it. And if I talked to Mr. Scruggs, I do not know. I — if he says that I did, I do not dispute that.

Q. Well, the record in the Renfroe case has a specific finding in the contempt citation that he talked to you and that the two of you decided he would take the documents — or the documents would be delivered to your office. Do you dispute that?

A. I haven’t read any of the findings of what Judge Acker has done. There again, I understand Mr. Scruggs testified to that and I don’t — I don’t dispute that, that we asked him to send us the documents.

Q. Right.

A. That’s correct.

Q. And did he do that?

A. Not to me. But as far as I know, he did send them to our office. I never saw the documents. I never — there again, they were sealed and never — never touched by our office.

Q. That set was never opened either, huh?

A. As far — no. I thought we were talking about the set that — which set are you talking about?

Q. I’m talking now about the second set, the Dickie Scruggs set that he brought to you in violation of Judge Acker’s order.

A. There again, I don’t agree that there was not some law enforcement exception. So your answer — you want me to answer that he violated the order. The answer to that is no. As far as what he sent us, the documents that were sent to us in December of ’06 were not opened it’s my understanding. And Courtney can tell you about that.

OK, do you see my point? If there was no problem, would Hood have reacted to the questions like Robie was throwing snakes at him?  

 — In the prosecution of Scruggs for criminal contempt in Alabama, Scruggs continues to call the special prosecutors "private counsel," suggesting they are Acker’s toadies without true authority,  and moved for an evidentiary hearing to show they had no constitutional authority over him and that they had conflicts of interest that should preclude them from accepting the job of prosecutor/private counsel. (After  being prosecuted by professionals in Mississippi, apparently Scruggs will accept nothing less than the authentic article — another testimony to brand loyalty). 

Here’s a story about the hearing, which was held on February 8. An excerpt:

Attorneys for prominent Mississippi attorney Richard "Dickie" Scruggs asked a federal judge Friday to dismiss criminal contempt charges alleging he ignored a court order to turn over documents related to insurance claims after Hurricane Katrina.

A defense lawyer told U.S. District Judge C. Roger Vinson that Scruggs hopes to put the Alabama case to rest and concentrate on unrelated federal charges filed in Oxford, Miss., where Scruggs is accused of conspiring to bribe a judge in a dispute over $26.5 million in legal fees.

"We just want to get out of here and go deal with the problems in Mississippi," Scruggs attorney John W. Keker said during a hearing.

Special prosecutors said the Alabama case could be resolved in any possible plea deal in the bribery and conspiracy case in Mississippi, but there has been no word of an agreement. They urged Vinson to let the contempt charges move forward against Scruggs, one of the nation’s richest trial lawyers and a brother-in-law of former Sen. Trent Lott, R-Miss.

The judge did not indicate when he would rule. Vinson, of Pensacola, Fla., was appointed to hear the case after federal judges in Alabama stepped aside.

Here’s some documents and motions from the case. 

Here is a subpoena for documents prosecutors wanted to send to Scruggs.

Here is Scruggs’ motion to strike the government’s motion to which the subpoena was attached.

Here is Scruggs’ motion for an evidentiary hearing to disqualify prosecutors.

Here is the prosecutors’ response to the motion to disqualify.

And here is the government response to Scruggs’ motion to strike the request for documents.

— Roger Parloff has a great post on his Legal Pad blog at Fortune on Scruggs’ defenses and the motions filed February 11.  Here’s a link to the post, and here’s an excerpt:

Attorneys for famous plaintiffs lawyer Richard F. “Dickie” Scruggs filed a battery of motions yesterday which suggest that he plans to try to invoke a variety of “entrapment” defense — claiming, essentially, that the government unfairly lured him into committing the crime — without openly admitting that that’s what he’s doing. If a defendant invokes the entrapment defense openly, he becomes subject to a number of special obligations and burdens that the Scruggs lawyers will want to avoid. I’ll explain exactly what I mean by that at the end of this post, after reviewing the substance of the motion.

A long, excellent post, read the whole thing.

And here is another good Parloff post, this one about the Hood testimony and the State Farm v. Hood hearing. I heard about it on February 8, but didn’t have time to get to it until today. 

— At the beginning of the post, I mentioned a scene from Moby Dick — let’s remember the very words with which the book ends: Ishmael says that the Rachel "in her retracing search after her missing children, only found another orphan."  Many more are out there, of course, orphaned stories, events, facts, and that is why I write, day after day — to search the infinite sea to try to bring them home. You can help.

— Finally, I’m trying out a new catch phrase for Scruggs Nation posts: "The truth will set you free — or put you in jail, depending on the circumstances. "  Let me know what you think.

 

 

14 Comments

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14 Responses to Scruggsellaneous odds and ends

  1. MORE COWBELL

    Hmmmm. If a federal judge says you can give documents to a law enforcement agency, and then you as an attorney give the documents to a law enforcement official, you should be held in criminal contempt of court and serve jail time? I guess that’s why Alice Martin and Jim Greenlee, both Ole Miss law classmates, decided to prosecute the criminal.

  2. An interesting question. But it supposes that the clause says that the Rigsby sisters and their agents can give the documents to law enforcement officials instead of returning them to Renfroe’s attorneys. No reasonable reading of the injunction results in that interpretation, particularly since Judge Acker and everyone else in the case was aware that Hood and Lampton already had their own copies.
    A reasonable reading of the clause is that all those named must surrender their copies to Renfroe’s attorneys, with the express exception of law enforcement officials, to the degree they could be considered persons acting in concert with the Rigsby sisters. As Acker said in his order, if the interpretation you advance had in fact been held by Hood and Scruggs, the communication from Courtney Schloemer/Hood would not have focused on how the injunction allegedly was insufficient to prevent State Farm and Renfroe from learning the contents of the documents (a protective order forbidding that very thing was in place, but Scruggs and Hood apparently believed Renfroe’s attorneys would break it — suspicious minds).
    More ambiguity would result, in reading the clause, if what had happened had been that Scruggs made another copy of his copies and gave those new copies to some law enforcement official, while returning one entire set to Renfroe’s attorneys. In that circumstance, it is more likely a reasonable interpretation of the injunction would be that he substantially complied with the requirements, although as I mentioned ambiguity would exist.

  3. Mississippian

    Can’t thank you enough for your hard work and analysis on all that is ScruggsNation!

  4. nomiss

    I just read the government’s Response to Defendants’ Motion to Strike in USA vs Richard Scruggs. There is one sentence on page 7, lines 9 & 10, that strikes a chord with something that I’ve heard whispered around many times. I hestitate to mention this because it is purely speculation. However, when I read this sentence, I instinctively stopped and reread.
    “For aught appearing, the United States Attorney declined [prosecution] not because she found no merit in this charge of criminal contempt, but because. . . .she received instructions from persons without knowledge of the facts to decline prosecution. . . .”
    I’m aware there are a number of possible reasons stated in the government’s response as to why the US Attorney might have declined prosecution, and the government was covering all bases. As I said, that one sentence just popped out based on whispers I’ve heard, although pure speculation.

  5. MORE COWBELL

    Here’s Acker’s ruling: “Defendants and their agents . . are further ENJOINED not to further disclose . . unless to law enforcement officials at their request.” Seems pretty easy to understand. What am I missing, and what did Alice and Jim not see either?

  6. David Rossmiller

    I’ve talked about that very language at least seven or eight times in posts on this issue. It is hard to credibly see a reasonable reading of the injunction that interprets disclose” to mean giving to Hood exact copies of what he already had, and completely failing to turn those documents over to Renfroe’s attorneys, which was the entire point of the injunction. How can one “disclose” to someone what they already know, or what they already have. Also, even by your reading, he didn’t disclose anything to Hood! As Hood admitted on the witness stand, he never even opened the boxes of documents Scruggs gave him! Probably the Uh-oh factor hit Hood, is why he didn’t open them up, but the reality is nothing was disclosed by the transfer, they were merely kept away from Renfroe’s attorneys contrary to the judge’s orders, through concerted action by Hood and Scruggs. This is by far the weakest argument in Scruggs’ defense, in my opinion it is so discredited he should drop it and move on.

  7. MORE COWBELL

    Hood never saw the documents b/c he has a staff of lawyers. (The Texas AG has over 600 attorneys). Remember, an assistant AG sent the letter to Dickie requesting the documents. An ass’t AG comes within Acker’s ruling “to law enforcement officials at their request.” Also, in your view, is this a criminal action?

  8. I believe Hood testified the boxes were never opened, not merely that he didn’t look at the documents. So if they were never opened, they of course couldn’t be disclosed to anyone. But that debate is silly, you can’t disclose something to someone by giving them copies of what they already have.
    Do you mean is it a criminal action what Scruggs did? Acker thought so, so did the prosecutors. We’ll see if it gets to trial and what the verdict is. If you’re talking about Hood, it’s not for me to decide.

  9. MORECOWBELL

    The prosecutors are being paid $350 per hour. All they have to do is try the case, they don’t have to believe it. Alice has to believe it before she takes a case. And I’m still looking for the part in Acker’s order that Dickie couldn’t give the documents to the Miss AG or the Miss US Attorney.

  10. You do not know the reasons Walker declined to prosecute, so it is mere speculation to say assume that she did so because she believed the prosecution of Scruggs was without merit. As far as the U.S. Attorney, you are wrong on two points. First, Scruggs was held in contempt for failing to give the documents to Renfroe’s lawyers and instead giving them to Hood, who had his own copies already and whose staff never opened the boxes, after Hood and Scruggs discussed this course of action immediately following Judge Acker’s injunction. No one says he is being prosecuted for giving the documents to the U.S. Attorney, at least not at present. At most, the prosecutors are saying they are looking into whether he sent data to the U.S. Attorney rather than return it pursuant to the injunction.
    I believe the Rigsby sisters had already provided the same documents to the U.S. Attorney as they had given to Hood during the data dump weekend, so again, Scruggs was not disclosing anything.

  11. nomiss

    On page 8 of Brian Ford’s deposition, on the third line after the date 10/5/06, Lynn Gunn, MS AG investigator states, “We have all of their documents and could not find any emails to you and thought there had been.”
    Had State Farm themselves provided any documents to the MS AG’s office? If not, this statement sounds as if the MS AG’s office had not only opened the boxes containing the purloined State Farm documents, they had read the contents of the documents.

  12. nomiss

    morecowbell, re the AL US Attorney’s decision not to prosecute: who was Alice’s boss at that time and who might have influenced that boss to help Scruggs out?

  13. MORE COWBELL

    You saying General Gonzalez, on orders from Dick Chaney, his boss? Don’t think so b/c Alberto was on the hotseat after firing Todd Graves and 7 other US Attorneys.
    Quick story, Alice is also a R.N. She worked her way through law school as such, and helped out many a student afflicted with a bourbon malady. Guess what Greenlee and Grisham favored?

  14. nomiss

    Sorry, mistake in above post re Brian Ford’s “deposition.”
    MS AG investigator Lynn Gunn’s statement “We have all of their documents and could not find any e-mails to you and thought there had been.” came from Brian Ford’s notes in Case 1:07-cv-00709-WHB-LRA, Document 96-8, Filed 12-18-2007.