(Zach) Scruggs Nation, March 4: Zach Scruggs files motion to dismiss charges for alleged government misconduct before grand jury

Zach Scruggs yesterday filed a motion seeking to dismiss the charges against him (here is a copy).  If this were granted, it would be huge — with Zach out of the case, much of the government’s leverage over Dickie Scruggs would disappear, and chances of a plea agreement with the elder Scruggs would drop significantly. 

As is appropriate when a man is fighting for his liberty, Zach Scruggs pulls no punches.  Here’s the brief’s lede (it was all one big paragraph in the brief, I’ve made it into three to make it a little easier to read):

It has been clear since the filing of this indictment that the government has no credible
evidence that Defendant David Zachary (“Zach”) Scruggs knowingly participated in any scheme to bribe a judge. That is precisely why what little evidence the government is attempting to use must be carefully reviewed for accuracy.

Following the hearings conducted by this Court last week, the government provided the defendants with the grand jury testimonies of Timothy Balducci and FBI Special Agent William Delaney. The grand jury testimonies are patently false and misleading in material respects and undoubtedly led to the erroneous indictment of Defendant Zach Scruggs. The testimonies are directly and unmistakably contradicted by the government’s own electronically obtained evidence secured by the government well in advance of the testimonies.

The use of false and perjurious testimony cannot be reasonably explained or justified, and the use of such evidence is an affront to our justice system and a deprivation of the most basic and inalienable rights due each of us, including Defendant Zach Scruggs. Defendant Zach Scruggs therefore respectfully moves this Court to dismiss the indictment against him.

The brief says that the charges are based on three erroneous inferences made by the government about Zach Scruggs’ involvement in the alleged bribery scheme:

First, the government claims that Zach Scruggs participated in the initial March 2007 meeting wherein the participants discussed and agreed to Mr. Balducci’s involvement in the Jones v. Scruggs matter pending before Judge Henry Lackey. The government and its witnesses acknowledge that no criminal conduct was discussed or considered during that meeting.

Second, the government alleges that on October 18, 2007, Mr. Balducci delivered an order to the Scruggs Law Firm and picked up a package left for him by a third party when Zach Scruggs happened to be working there after hours, again with no criminal conduct discussed.

Third, and most important for purposes of this motion, the government claims that Zach Scruggs was present in Defendant Sidney (“Sid”) Backstrom’s office during a November 1, 2007 conversation with Mr. Balducci, who had just been arrested by the FBI and was voluntarily wearing a body wire (at the direction of government lawyers and agents) in an effort to ensnare others.

 I am struck by one thing on page 5 of the brief:

Indeed, the transcript instead indicates that Zach Scruggs, rather than believing the order at issue was being “paid for” by the Scruggs Law Firm or others on their behalf, knew of no such impropriety. For example, Zach Scruggs reviews the order and states, as to a particular part of it, “I don’t know what he’s trying to say. I mean it’s not bad, but I’m not sure what his intent was.” Ex. A at 22 (emphasis added).

To which I say, hang on here — if Zach was not involved, how do you explain the fact he is reading and editing a draft order, an ex parte communication from Judge Lackey? I mean, how does that happen under the scenario presented in the brief, a scenario where Zach doesn’t have a clue.  And remember, the government has the evidence from the Wilson case, the one in which Joey Langston pleaded guilty to trying to influence Judge DeLaughter, of Zach writing in an e-mail that one could write an order on a napkin and get it approved in that case.  

Also, you people in Mississippi tell me, does this passage make sense? 

After some comments by Zach Scruggs and Mr. Balducci about Zach’s reluctance to take the call (id.), there is a pause (p. 30), after which Mr. Balducci appears no longer to be speaking to Zach Scruggs. Balducci’s language changes from the plural “y’all” to the singular “you.” And Zach Scruggs’s voice is never heard on the tape again. 

I talk to quite a few people in Mississippi, and I believe I hear y’all used in the singular sense quite a bit — "Rossmiller, I’ve got some information y’all definitely want to know about."  I also have been educated to the usage, "all of y’all," as in, "I told y’all to step out of the car, not all of y’all." But I also hear y’all used in the plural. So y’all tell me, which is it? 

Here are the exhibits to this motion:

Exhibit A — transcript of the November 1 body-wire recording Balducci made in the Scruggs Law Firm.

Exhibit B — Balducci grand jury testimony. (First version was messed up, here’s the corrected version filed shortly afterward).

Exhibit C — grand jury testimony of FBI Agent William Delaney.  




Filed under Industry Developments

26 Responses to (Zach) Scruggs Nation, March 4: Zach Scruggs files motion to dismiss charges for alleged government misconduct before grand jury

  1. Bama Insurance

    We educated southerners use “ya’ll” the correct way, plural. Any other way ain’t right.

  2. nmc

    “Ya’ll” is thought of by many southerners (including this writer) as a plural for you. However, I’ve read that academics find plural and singular usage to both occur commonly in the south, including by people who when asked say ya’ll is only plural.

  3. Anderson

    “Y’all” should indeed be plural, and should also be correctly spelled: y’all = y(ou) all.
    As for Zach, I was playing devil’s advocate for him over at Folo and will not repeat that spiel here. I will note that whether he was behaving unethically does not in itself tell us much — unethical behavior was par for these guys.
    Hence the mere fact that he was helping draft an ex parte order doesn’t mean he necessarily thought the judge had been bribed to allow same.
    The “I’m a sleaze” defense?

  4. Anderson

    Wikipedia is on the case:
    There is also a long-standing disagreement about whether y’all can have primarily singular reference. While y’all is generally used in the Southern United States as the plural form of “you” a scant but vocal minority (for example, Eric Hyman) argue that the term can be used in the singular. Adding confusion to this issue is that observers attempting to judge usage may witness a single person addressed as y’all if the speaker implies in the reference other persons not present: “Have y’all [you and others] had dinner yet?” (to which the answer would be, “Yes, we have”, even though a single person has answered.)
    They illustrate the latter point:
    an associative plural, including individuals associated but not present with the singular addressee
    Example: “We’re free after 10,” John says. “Y’all can come over at around 10:30,” Chris replies.
    Chris explains to John that he and John’s friends, who are not present at the time, can come over at around 10:30. Chris is speaking to John, but treats John as a representative for others (i.e. his friends).
    Time to designate a linguist as Zach’s expert witness?

  5. Bill

    Need a linguistics expert on the customary usage of “y’all.”

  6. Y'all

    I read the blog every day and have never felt so compelled to post as I did when I noticed you try to stretch y’all to the singular. Guess it’s the Southerner in me. Y’all is plural. If I said y’all to a person standing alone, that person would undoubtedly turn his or her head to see who else I was addressing. No Mississippi boy is going to address one person as y’all.

  7. Carly

    Never use y’all in the singular. Hollywood never seems to get it right.
    Y’all means you all — ALL of you.
    A man would say to his family, “I love y’all.” But, a man would not say to his wife, “I love y’all.”

  8. main street

    Y’all is plural in my family, office or school. Speaking to someone who is representing others one on one you might say Y’all will won’t to discuss this or if one bag man is talking to another bag man one might say Y’all have counted this.

  9. nomiss

    If I saw my cousin (singular) on the street, I would say, “Y’all come to see us now, you hear?”

  10. I think using y’all in the singular is proper only if one is addressing royalty. There are, of course, difficult questions about whether being a prince of blogging or a prince of the tort bar counts.

  11. bellesouth

    Y’all is definitely plural. It is akin to northerners using you guys.

  12. Seacrest

    in the 11/01 transcript Balducci addresses Zach directly in the closed room. “Zach, let me bring YOU up to speed” on the “Lackey deal”

  13. Silas

    Y’all and You All gimme a freakin break up in here! Anyone that can say they have never seen Y’all used in the singular is being forgetful and probably more to the truth – biased.

  14. Gavin Stephens

    My creator would spin in his grave at the thought of using Y’ALL in the singular. Y’all is a contraction of “you all.” Y(ou)’ all== y’all. Glad he is not from North Carolina or “youins” would never figure this out. There is not a potbellied sheriff anywhere south of the Mason-Dixon line that would say y’all step out of the car and not expect EVERYONE to come bailing out.
    NO! NOT singular, NOT EVER singular, UNLESS by people not from the south masquerading as southerners.

  15. Nomiss

    Well, of course, when I say to my (singular) cousin, “Y’all come to see us,” I’m referring to my cousin’s husband, her chilren and grandchilren, and their cud’ins, and their second cud’ins. All of ’em, you know.

  16. missmadlaw

    Well ya’ll, Zach’s counsel is obviously trying to get his client out of the room prior to the “sweet potatos” comment on page 30. After all Zach is probably going to testify that he thought the draft version of the order was circulated to both sides, or perhaps he’ll claim that while the old judge shouldn’t have circulated the order (and though Zach and his daddy didn’t request a draft)if the judge was sending it around they would surely take a look.
    It may take a little imagination to dance around this thing. But hell, ain’t that what ya’ll pay for when you go and git you a sho ’nuff good lawyer to git you outta something you ought not got into in the first place.

  17. Curly

    If you came up to me and and used y’all in the singular, I would know immediately that “y’all” weren’t from around here. (LOL in MS)

  18. DeltaNative

    I think the question about correct usage of the word “y’all” may have elicited a record number of comments in this space.

  19. Bama Insurance

    And sometimes “ya’ll” can be inside a word refering to the plural.
    i.e. “whachya’lldoin”. A single word sentence posin a question. The fewer the syllables the better.
    Very efficient we southerners are. 🙂

  20. MSlawyer

    As a lifelong Mississippian, I want to add my agreement to those who have said that “y’all” is a contraction of “you all.” Although I might ask one person a question such as “What time did y’all get home last night,” it is obvious to that person (if they are a southerner) that I mean him or her and his family or whoever he or she was with last night. I have never used “y’all” to refer to one person and I have never heard a real southerner use it that way, either.

  21. The way I was brought up, y’all is plural, unless of course one is royalty, in which case the royal y’all may be used in the singular sense.

  22. dixie68

    If I tell you that a hen dips snuff, then you can look under her wing and find the brush, so I am telling you that no respectable southerner would use “y’all” in the singular.

  23. Madge

    There is that old joke that the pleural of y’all is “all y’all” but y’all does refer to more than one person – present or not.
    and we also know how to hypnotize chickens down here too- like Reese said in one of my favorite movies “you should have to have a passport to come down here” – of course we like it that way 🙂

  24. lil' kenny

    I grew up in a Mississippi household where good grammar was demanded, taught that y’all was plural and was not allowed to use “ain’t etc. There is a segment of folks who use y’all as singular and plural. They are the people (bless their hearts) who use the term mama’n’nem when they really want to stress their communication intent as plural. If you want to get a real headache,,,,go to Northern Kentucky (accross the river from Cincinnati) where they have evolved the use of a plural possesive of ya’ll….”YOURALL’S. The first time I encountered the term I thought they were speaking of a mountain range in Russia!

  25. MississippiGirl

    It kind of seems like everyone is just grasping at straws here. Just because I am not “engaged” in a conversation does not mean that I am no longer listening and/or paying attention to that conversation. In addition, I think y’all is plural but “you” can be singular or plural and that perhaps Mr. Balducci was still addressing both men.

  26. Scruggs scandal update: sweet potatoes by the acre

    Some developments of the past ten days or so: * In major blow to defense, Judge Biggers denies motions to suppress wiretap evidence and evidence of similar bad acts [Rossmiller] * Balducci says he and…