Scruggs defense team attacks investigators

John O'Brien Jan. 17, 2008, 11:00am



OXFORD, Miss. - The defense team of indicted trial lawyer Richard "Dickie" Scruggs plans to argue that Scruggs had no role in an alleged bribery scheme and the U.S. government misled those who authorized wiretaps.

In a previously sealed motion to continue the trial, San Francisco attorney John Keker laid out his future strategy. The trial's new start date is March 31.

Keker wrote that he envisions filing motions "made on the grounds that the affidavits submitted in support of the search and wiretap applications were false and misleading in their failure to disclose to the authorizing Court material and significant exculpatory facts, which, if known to the Court, would have vitiated a finding of probable cause..."

Scruggs and his two remaining co-defendants (son Zach and attorney Sidney Backstrom, both of the Scruggs Law Firm) are facing charges that they offered Lafayette Circuit Court Judge Henry Lackey $40,000 for a favorable ruling in a $26.5 million attorneys fees dispute. The fees were earned when 640 Hurricane Katrina cases against State Farm Insurance Cos. were settled.

Trial lawyer Joey Langston, who has defended Scruggs in court in the past, and former state Auditor Steven Patterson both entered guilty pleas last week over schemes that allegedly included Scruggs and are cooperating with federal prosecutors.

Patterson was business partners with attorney Timothy Balducci, who pleaded guilty soon after the Nov. 28 indictment and apparently led the feds to Langston, with whom he previously worked at The Langston Law Firm.

It is the Balducci-Lackey conversations that have drawn the interest of Keker. He said he will delve into:

-"The extent to which Judge Lackey created the alleged crime by suggesting, urging and constructing a bribe;

-The extent to which Judge Lackey, not Balducci, suggested a link between the created bribe and Richard Scruggs;

-The numerous protestations by Balducci that Scruggs was not involved, and that Scruggs did not know of any corrupt agreement; and

-Balducci's numerous protestations that he, and only he, was responsible for any corrupt arrangement."

Keker claims affidavits submitted in support for a search of the Scruggs Law Firm left out key portions of conversations between Balducci and Lackey.

"Where the affidavit describes the recorded conversation between Balducci and Judge Lackey on May 21, 2007, the affidavit fails to reveal that it was Judge Lackey who introduced the idea of Scruggs' involvement, saying, 'I just want to hear you say it again... you and Scruggs are the only ones who know about this?' the motion says.

"The affidavit also fails to disclose that in this May 21 conversation, Balducci says a number of times that he does not want Judge Lackey to do anything improper, telling Judge Lackey, for example, 'you do what you feel comfortable with' and 'I don't mean to make you uncomfortable... if it's not something that you feel right about, you do what your heart tells you... I've got complete confidence that this is completely fine... I would never put... you nor me in that position... I have complete confidence that it's fine.'"

Keker also says there is evidence that during a $20,000 payment to Lackey, Lackey tells Balducci that he only wants the money if it is Scruggs'. Balducci responds by saying, "There ain't another soul in the world that knows about this."

When Lackey attempts to connect Scruggs to the payment again, Balducci says, "There will come a time where I sit him down in private and I will tell him that I've solved a problem for him."

Keker anticipates moving to dismiss the indictment based on outrageous conduct by the government.

"The significant exculpatory facts discussed above were not disclose in the affidavit submitted to support the Sept. 25, 2007, wiretap on Balducci's phone," Keker wrote. "Evidence obtained for that wiretap was then in turn used, together with a similarly misleading affidavit, to obtain the Oct. 16, 2007, order authorizing a wiretap on Patterson's phone.

"That evidence in turn led to the confrontation of Balducci on Nov. 1, 2007, and secured his cooperation. And that in turn led to further tainted evidence used to secure a grand jury indictment."

Scruggs is known mainly for leading a group of attorneys who negotiated a $246 billion settlement with the tobacco companies on behalf of several states, a process that became the inspiration for the 1999 film "The Insider." That group of attorneys earned $1.4 billion in fees.

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