Prosecutors call Scruggs' motion "harassment"

John O'Brien Feb. 7, 2008, 1:30pm




BIRMINGHAM, Ala. - In response to indicted trial lawyer Richard "Dickie" Scruggs calling their motivations for bringing criminal charges against him into question, three federal prosecutors say Scruggs needs to give it a rest.

Charles Sharp, Michael Rasmussen and Joel Williams, appointed by federal judge William Acker to bring the indictment, filed Wednesday their reply to Scruggs' motion for an evidentiary hearing. Scruggs wants a probe to determine any ulterior motives the trio may have.

The three say those issues were already dealt with last year in a similar attempt by Scruggs.

"Once again, Scruggs has moved, without citing a case which actually supports his request, for an unwarranted examination of Judge Acker and the Special Prosecutors, seeking a laundry list of work product information, without any factual or legal showing," the reply says.

"This harassment serves no value other than to distract attention from Scruggs' own contemptuous conduct, for which a factual showing has been presented."

Scruggs is charged with violating a Dec. 2006 order from Acker that told Scruggs to return insurance documents obtained through a pair of sisters who worked at E.A. Renfroe that were related to victims of Hurricane Katrina to the attorneys of the company and State Farm Insurance Cos.

Instead, Scruggs gave them to Hood, who had sued five insurance companies -- including State Farm -- over their handling of Katrina claims. Renfroe was working with State Farm, which has since settled a lawsuit against Hood, on the claims.

Acker recommended to U.S. Attorney Alice Wilson that Scruggs, who is also facing judicial bribery charges in Mississippi federal court, be prosecuted for contempt, but she declined. So he appointed three special prosecutors to bring the charges.

Scruggs and San Francisco attorney John Keker, who is also handling Scruggs' other criminal situation (he is alleged to have attempted to bribe a state judge in a dispute over at least $26.5 million in Katrina fees and faces up to 75 years is prison) wanted to make an issue of the appointment.

"It is critical, when private attorneys are appointed to prosecute a criminal contempt, that they be 'as disinterested as a public prosecutor who undertakes such a prosecution,'" Keker wrote.

"As such, the Court must determine whether the appointed private counsel have 'a personal interest, financial or otherwise,' in the conviction of Scruggs... Likewise, should the Court decide that Judge Acker has 'participated in' the private counsel's investigation, 'supervise(d)' their exercise of authority, or 'review(ed)' any of their actions, that would render their appointment unconstitutional."

Rasmussen is a former federal prosecutor, and Sharp and Williams both work at Sadler & Sullivan in Birmingham.

When the issue was before the Eleventh Circuit Court of Appeals last year in Renfroe's case against the Rigsby sisters, Acker responded to Scruggs' claims, which were eventually denied.

"Never before in my 25 years on the bench have I found it necessary to employ Rule 42, a procedure that is rarely invoked by any judge," he wrote. "After taking the unusual step of appointing the special prosecutors, I depended upon them to prepare and to file the charging document, and I stepped aside."

The prosecutors say Scruggs should not be bringing up the issue of their impartiality now. That is what appeals are for.

"Absent a showing that the Special Prosecutors have a pecuniary interest of other disqualifying conflict in the outcome of this prosecution and that such interest or conflict is proven by clear and convincing evidence to have caused demonstrable actual prejudice to Scruggs, and that exceptional circumstances exists to contest the process now rather than after a conviction, Scruggs' motion for dismissal is due to be denied," they say.

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