OXFORD, Miss. - The defense team of indicted trial lawyer Richard "Dickie" Scruggs made full use of its last chance to make demands Monday.
Motions asking a federal judge to suppress evidence obtained through wiretaps and either dismiss all charges or move Scruggs' judicial bribery case to another venue were filed on the last day for pretrial motions.
A March 31 trial date looms for Scruggs, 61, accused of bribing a state judge in a dispute over at least $26.5 million in attorneys fees earned in Hurricane Katrina settlements. He faces a maximum 75-year prison sentence and $1.5 million in fines.
San Francisco attorney John Keker says the government attempted to manufacture a crime for Scruggs to commit through the cooperation of Lafayette County Circuit Court Judge Henry Lackey and attorney Timothy Balducci. Balducci and business partner Steven Patterson, a former state Auditor, pleaded guilty to the alleged scheme.
"Not only did the government pursue Balducci to the point of manufacturing a crime for him, but it also engaged in a pattern of concealing from this Court the excessive government involvement in the alleged crime along with relevant exculpatory information in order to procure wiretap orders and search warrants which forth fueled the government's efforts to implicate others in the manufactured crime," Keker wrote to U.S. District Judge Neal Biggers.
"Defendants Dick Scruggs, Zach Scruggs, and Sid Backstrom come now to move that the Court dismiss the Indictment due to the government's outrageous conduct in pursuing its investigation."
At the heart of Keker's argument are the search of the Scruggs Law Firm and wiretaps obtained by federal investigators through Lackey, who agreed to record conversations with Balducci. Keker says the government ignored evidence that exonerated Scruggs.
"Two principal defects infect each of the affidavits submitted by the government in support of their wiretap and search warrant applications," Keker wrote in a motion to suppress the fruits of the wiretaps and search. "First, while the affidavits try to paint a dark picture of a conspiracy among defendants to bribe... Lackey going back to March 2007, the affidavits omit numerous specific facts known to the government which show that no such conspiracy existed and that, in fact, it was the government that created the alleged crime here.
"Second, the government omitted from its supporting affidavits specific evidence from audio recordings that exculpates defendants and defeats the government's conspiracy claims."
That evidence includes Balducci telling Lackey that he would one day tell Scruggs that he had taken care of a problem for him, indicating Scruggs was not aware of the alleged scheme. In another conversation, though, Balducci said only he, Scruggs and Lackey knew of the alleged scheme.
Keker also claims that FBI Agent William Delaney wrote misleading statements in some of his affidavits in support of extensions of the wiretap.
"Delaney's affidavit states that, during a May 21, 2007 recorded conversation between Balducci and Judge Lackey, 'Balducci assured Judge Lackey that nobody other than Balducci and Scruggs know of the arrangement suggested by Balducci to Judge Lackey,'" the motion says.
"However, Delaney's affidavit fails to reveal that it was Judge Lackey who prompted Balducci to discuss Scruggs's involvement, saying 'I just want to hear you say it again.... You and Scruggs (are the) only one(s who) know anything about this?'"
"This omission thus conceals Lackey's aggressive efforts to target Balducci. Delaney's affidavit also fails to disclose that during their May 21st conversation, Balducci said a number of times that he did not want Judge Lackey to do anything improper."
The motion to dismiss also notes that Lackey told Balducci he did not want the $40,000 payment if it was not Scruggs' money, to which Balducci responded, "This is just between me and you... there ain't another soul in the world that knows about this."
"Despite the fact that the government knew that Scruggs was not involved in the alleged conspiracy that it had set in motion, the government continued to pursue Scruggs, all the while concealing from this Court its role in creating the crime as well as facts exculpatory to defendants," Keker wrote.
Attorneys for the three defendants also separately asked that three of the counts in the six-count indictment be dismissed. The three charges deal with a statute that criminalizes bribery involving federal funds.
Keker asked that any evidence from the plea agreement of Booneville attorney Joey Langston not be allowed. Langston and Balducci represented Scruggs in another attorneys fees dispute in Hinds County, and Langston admitted to attempting to bribe Circuit Judge Bobby DeLaughter with consideration for a federal judgeship.
The government had moved to introduce evidence from that case into Scruggs' case. Keker decided that he wanted to exclude "evidence concerning an alleged attempt to corruptly influence a different judge of a different court in a different case by different attorneys in a different year.
"Defendants emphatically deny this uncharged allegation, which has never been litigated in any court. Admission of this extrinsic evidence will create a 'trial within a trial;' will consume perhaps more time even than the trial of the offenses actually charged; will unduly prejudice Defendants, two of whom have nothing to do with the 404(b) material; and will deprive Defendants of a fair trial on the offenses that are charged."
Lastly, if all else fails, Keker wants the trial moved to a different federal court within the Fifth Circuit but outside of Mississippi. He claims the jury pool has been influenced by the attention the media has paid to the case.
"Defendants recognize that changes of venue are not routine," the motion says. "But this is hardly a routine
case. This case has attracted extraordinary pretrial publicity throughout Mississippi, headlining newspapers in Northern Mississippi multiple times per week.
"Even pre-trial motions on attorney substitutions are widely covered and hotly debated. Fueled by sensational allegations and conspiracy theories, Mississippi state officials, local bloggers and everyday citizens from across the state have strived to make Dickie Scruggs a poster-child for greed, attorney malfeasance and tort reform."
Scruggs also faces criminal contempt charges in Alabama.
Scruggs made his fortune in litigation against asbestos companies and by representing several states in their case against tobacco companies. His work helped lead to 1998's Tobacco Master Settlement Agreement, which has an estimated worth of $246 billion to the 52 participating states and territories.