Two motions to sever, Backstrom and Scruggs. The gravamen is prejudice. The first argument was from Zach Scruggs’s side. Trapp argued there is a huge spread between proof about Zach and Dick—only three thin threads about Zach, only if he is aware: Being present in the initial meeting, Zach being in the conference room when the order was delivered; may have been in the room with Balducci for a small part of the conversation when Balducci was acting as a government agent. There is a danger he may be convicted due to the weight of the evidence against the others.
Dawson argued for the government. When specifically asked about whether there is anything that links the 404(b) evidence to Zach, he did not answer. This is slightly odd, because there is a link.
Trapp: Only asked for severance from Dick Scruggs. Argued: Disparity of the amount of evidence, that there is limited evidence. He did a really nice riff on sweet potatoes. He said, “This is a term that has multiple meanings. Sometimes it means Vardaman sweet potatoes, sometimes it means the order, and sometimes it means money.” This got audience laughing. He was arguing hard and well that this is not a place where limiting instructions would work because of the flow of stuff coming in.
Then he said: “The trial within the trial will be sensational.” He mentioned headlines about Trent Lott and the sensational personalities. There is a tsunami of ill will in this case, and he indicated the gallery in the court room and the “bloggers’ desire for a conviction.” Judge Biggers said that the jury can be insulated from the gallery.
He argued that Mr. Backstrom is just a regular working lawyer, and if he did not have the good fortune to work for the Scruggs law firm, none of this would have happened. He said that he is not aware of a drop or scintilla of the 404 evidence that would apply to Mr. Backstrom. The judge seemed particularly interested in getting very clear, focused answers on this subject from the prosecution.
Dawson responded again, said these arguments are purely speculative and you don’t grant motions to sever on speculation. The judge asked direct questions about the 404(b) matters and whether there is other evidence or other witnesses that link to these defendants. Dawson didn’t answer directly, saying he is not required to give a witness list now.
Judge Biggers during all this closely questioned Tom Dawson about statements made earlier in Bob Norman’s presentation indicating that the 404(b) matters may not have been a crime. Dawson said it doesn’t matter whether Judge DeLaughter was corruptly influenced, and that it was enough to show bad acts with the intent to corruptly influence him. Judge Biggers asked questions heading toward the fact that Joey Langston has pled guilty to bribery relating to that—at one point saying that he hoped the government had facts to establish bribery, given that guilty plea. On further questioning about what the government was going to do about that matter, Dawson stated that Judge DeLaughter was before the Public Integrity Division of the Justice Department at this time.
Without ruling, Judge Biggers moved on to the change of venue motion. On this, Keker started out by saying that “I haven’t made any bets that you are going to grant this motion,” that he had made this in many cases and it rarely works, but what is different here is who is interested in the case. He mentioned the Clarion Ledger, Daily Journal, Oxford Eagle, and the student writing for the Daily Mississippian. He said this is the thing: People in Mississippi are interested in this case and people elsewhere aren’t.
He started quoting Legalnewsline. He said people are interested in this because it is a fall from grace, and a fall from grace of someone who lives in Mississippi. He described quotes from Gov. Barbour and Mississippi Supreme Court justices. He said the Wall Street Journal has run some articles, but that Louisiana, Tennessee or Texas would be different. He specifically argued that the difficulty about getting people who don’t know Judge Lackey (and cited an article in the Oxford Eagle about Judge Lackey) and how well known Trent Lott is in Mississippi.
If the judge didn’t grant it, they would be making some special requests about voir dire. The judge noted they had done this thorough research, and asked whether they found all opinions on the subject are negative. Keker said that the cases were impressionistic. Keker talked about Barbour again, and then the State Farm v. Hood case. Keker then said his associate has done all this research and found not one article saying “I don’t think he did it.”
Judge Biggers: “This is one of the most thoroughly researched briefs I have ever seen, but it’s hard for me to believe there were no statements” favorable to Dickie. The associate was allowed to come to the podium and talk about his research. Keker then took back over: What we found “was people piling on. Mr. Merkel. Mr. Tollison. The notion being at last he’s getting his comeuppance.” Keker says that Dickie’s friends are stepping back and seeing how it turns out.
At this point, Judge Biggers said, “If you had a preference, where would you have it?” Keker starts talking about New Orleans, and then anywhere.
Judge Biggers said, “I don’t know about the interest being only in Mississippi. I had lunch in Montana with several lawyers and they knew all about it. One asked whether the Grisham novel King of Torts is based on Scruggs. I know Grisham has denied that.” This then made an obvious segue—Oh, yeah! There was a positive remark. Judge Biggers said that “John Grisham’s opinion is respected in this area.”
When Keker sat down, and Dawson got up, Dawson said, “Well, he hasn’t offered to go to the Northern District of Alabama.” Keker stood up and said that nothing bad happened in the Northern District of Alabama and we’ll go there too. This was one of the few times that things got testy in the courtroom.
One message being delivered was that people in the area know and respect Judge Lackey, and we need the case moved to somewhere that isn’t true.
Dawson discussed the Fifth Circuit cases saying voir dire is the best method for dealing with these issues. He stated that all of the cases were state cases involving horrific crimes being tried in the county where the crime occurred. Judge Biggers noted that the Oklahoma bombing case had been moved. He asked if Dawson knew of any other federal cases that had been moved. Dawson described the North Mississippi Savings and Loan collapse case in the 1980s here, and that a jury had been seated by 1:00.
Dawson said there were several solutions about jury selection—anonymous jury, district wide jury, and others, and that they had not made a motion on that because it would be premature.
Keker reacted immediately against an anonymous jury, saying that would be prejudicial.
Trapp for Backstrom noted that Judge Lackey’s circuit court district constitutes six of the seven counties in this district.
Judge Biggers ruled. He said there is no evidence about how many people in this county subscribe to the Clarion Ledger. There is no information in the record about how many subscribe to the Tupelo Journal. He says most people get their information now from television and there isn’t evidence of huge television coverage. There is no evidence of what percentage of these jurors are exposed to the coverage and no evidence that these defendants can’t get a fair trial. There are over a million people in the northern district of Mississippi.
There is additional information to be given on the motion to suppress, and on 404(b) and the motion to sever, he is going to rule on next Tuesday.
Keker then submitted a jury questionnaire for the court’s consideration. Keker then wanted to talk about open issues: Limine motions, housekeeping, timing of Jenks material. Keker said there is housekeeping stuff and they may need to be another hearing date. He said, depending on the 404(b) ruling, everything taken out of Joey Langston’s office is discoverable.
