Recusal a popular issue with Scruggs cases

John O'Brien Dec. 6, 2007, 3:00pm


OXFORD, Miss. - Three judges in Richard "Dickie" Scruggs' hometown of Oxford made the right decision when they separated themselves from the fee-dispute case that hatched a federal indictment against the prominent trial lawyer, a close follower of the events says.

Lafayette County Circuit Court judges Henry Lackey, Robert Elliott and Andrew Howorth washed their hands of the case, Jones v. Scruggs, by signing their names to a motion for recusal nine days before a federal grand jury indicted Scruggs and four others on charges that they tried to bribe Lackey.

"I think when you have something like this, when one of the judges has become immeshed in the underlying case this way and the other judges know him well, it's a situation where you have to have a recusal," said Portland, Ore., insurance attorney David Rossmiller, a partner at Dunn Carney who has been analyzing the Gulf Coast's insurance situation for Legal Newsline.

In the case, Scruggs' firm is arguing with another over how to split $26.5 million in attorneys fees from a Hurricane Katrina-related settlement with State Farm Insurance Cos. Of course, there's still no explanation for why the order was dated Nov. 19 but not entered in Lafayette Circuit Court until Nov. 29 and appeared folded, torn and taped.

"Obviously, to me, it seems like it would be a really bad move to file it and make it public. That would be an obvious tip-off," Rossmiler said. "I just wonder why took the step of even signing before hands, when clerks and various other people can see things."

The situation is similar to Scruggs' other criminal case. He's facing criminal contempt charges in federal court in Alabama.

It was a judge there, William Acker, who recommended Scruggs be prosecuted. He claimed Scruggs did not comply with an injunction in December by refusing to hand over documents from E.A. Renfroe, a claims-handling company working with State Farm, back to the company's attorneys.

Instead, Scruggs gave them to Mississippi Attorney General Jim Hood. Acker recommended to U.S. Attorney Alice Martin that she pursue criminal contempt charges, but she declined. That's when Acker enlisted the help of special prosecutors who would file charges.

For that, Scruggs' legal team moved to disqualify not just Acker, but all federal judges for the Northern District of Alabama.

"Undersigned counsel have great respect for all the judges and magistrate judges in the Northern District of Alabama, so it is with trepidation but out of great concern that we raise the issue of recusal," says the motion, filed Nov. 13.

"Simply put, how can any one of the Honorable William M. Acker's colleagues, in a case in which he has taken a great personal interest, including signing the charging document 'on behalf of the United States of America,' decide the issues involved -- including the request to dismiss charges and/or to set aside the appointment of prosecutors -- without thinking about the effect the rulings will have on the esteemed Senior Judge with whom he or she serves?"

The Court agreed with Scruggs' argument and referred the issue to the 11th Circuit federal court.

"While the Court is of the firm opinion that it could fairly and impartially preside over this case and decide the issues therein, it is acknowledged that the impartiality of the judges of this Court might reasonably be questioned by an objective observer given the totality of the circumstances," Judge L. Scott Coogler wrote.

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