ScruggsBlawgletter admires good writing, no matter whence it comes. But we like it better when a judge produces it.

Last week, Fifth Circuit Judge Jacques Wiener did a fine piece of work. It kind of sings. And it tells the on-going tale of Dickie Scruggs, the rich lawyer who flew too close to the sun. We think you'll enjoy his narrative of the facts:

    Scruggs made both a name and a fortune as a plaintiffs’ attorney in asbestos and tobacco litigation. Along the way, he became entangled in many fee-sharing disputes with co-counsel, one of which resulted in a lawsuit filed by Robert Wilson in the Circuit Court of Hinds County, Mississippi (“the Wilson Case”). Robert “Bobby” DeLaughter, best known first for successfully prosecuting Byron De La Beckwith for murdering civil rights leader Medgar Evers, sat on the Circuit Court of Hinds County, where he was assigned the Wilson Case and his path crossed with Scruggs.

Scruggs wanted a sure thing in the Wilson Case, having recently lost a similar fee fight. As the presiding judge, DeLaughter could put his finger on the scales. DeLaughter coveted a federal Article III judgeship more than anything else; as the brother-in-law of then-United State Senator Trent Lott, Scruggs could influence the person who sent candidates to the President. In early 2006, Scruggs retained Ed Peters, a close friend and mentor of DeLaughter’s, as a secret go-between who conveyed an offer: If DeLaughter would help Scruggs win the Wilson Case, Scruggs would recommend DeLaughter to Lott for a district court judgeship.

    DeLaughter kept his end of the bargain: When Scruggs badly needed a trial continuance, DeLaughter entered, verbatim, a scheduling order prepared by one of Scruggs’s attorneys, despite having disclaimed input from either party. DeLaughter also reviewed yet-to-be-filed motions for Scruggs, advising how he would rule and which arguments needed work. During 2006, three judicial vacancies opened on Mississippi federal district courts. In March 2006, after being passed over for nomination to one of those seats, DeLaughter relayed his dissatisfaction and concern that “he was doing his part of the bargain and that . . . Scruggs was not going to fulfill his part of the deal.” Immediately thereafter, Scruggs had Senator Lott call DeLaughter. Although the record suggests that Lott did not say that DeLaughter was being considered, DeLaughter nonetheless came away with the impression that he was in the running for the seat.

    Mollified that Scruggs was keeping his end of the bargain, DeLaughter continued secretly to tilt the scales in the Wilson Case. When Wilson filed a potentially dispositive motion asking DeLaughter to quantify the amount of fees Scruggs still owed, Scruggs’s attorneys did not know whether to oppose the motion and pursue a full trial or to agree to submit the quantification issue to the judge. DeLaughter assured them that Scruggs would win the quantification motion, and he did. After faxing a preview of his order to Scruggs’s counsel, DeLaughter held that Scruggs owed no more than he had already paid and denied Wilson’s motion for reconsideration without comment. But the quantification order was so
favorable that even Scruggs’s attorneys worried that it could not be affirmed on appeal, so Scruggs settled the Wilson Case before appeal with the help of DeLaughter, who revealed Wilson’s confidential settlement position.

    These machinations came to light when members of Scruggs’s legal team began cooperating with the government’s investigation of an unrelated judicial bribery scheme. A grand jury returned an indictment charging Scruggs and DeLaughter with one count of conspiracy to commit federal programs bribery, in violation of 18 U.S.C. § 666, and three counts of aiding and abetting honest-services mail fraud, in violation of 18 U.S.C. §§ 1341 and 1346. The honest-services counts in the indictment alleged “a scheme and artifice to secretly and corruptly influence” DeLaughter, thus “depriving [Wilson] and the citizens of the State of Mississippi of their intangible right to [his] honest services.” In particular, the indictment alleged that Scruggs prevailed on Lott to consider DeLaughter, and “in return” DeLaughter provided secret access and favorable treatment.

    Scruggs pleaded guilty to a superseding information charging him with a single count of aiding and abetting honest-services mail fraud, in violation of 18 U.S.C. §§ 1341 and 1346. Like the original indictment, the information alleged a scheme corruptly to influence DeLaughter and deprive the citizens of Mississippi of their right to his honest services, describing Scruggs’s call to Lott on DeLaughter’s behalf. But the Information omitted that which DeLaughter did for Scruggs “in return.”

    Pursuant to a plea agreement, the charges in the indictment were dismissed. Scruggs was sentenced to imprisonment for seven years, concurrent with a prior five-year term for conspiring to bribe another judge who was presiding over a different fee dispute.

    On June 24, 2010, the Supreme Court issued Skilling v. United States in which it addressed the constitutionality of 18 U.S.C. § 1346, the honest-services statute. Section 1346 states that “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” To avoid problems of constitutional vagueness with this definition, the Court in Skilling limited the application of the statute to paradigmatic bribery and kickback schemes only.3 In June 2011, Scruggs filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, contending in light of Skilling that, as he did not admit to bribing Judge DeLaughter, he is not guilty of a crime.

    The district court concluded that, by pleading guilty, Scruggs had procedurally defaulted on that claim. After a two-day evidentiary hearing, thedistrict court issued a thorough 48-page opinion denying the § 2255 motion because Scruggs had not shown either his actual innocence or cause and prejudice. The district court issued a certificate of appealability on the issue of “actual innocence” and “other issues in the opinion,” and Scruggs timely filed a notice of appeal.

United States v. Scruggs, No. 12-60423, slip op. at 1-4 (5th Cir. Apr. 12, 2013).

Scruggs lost the appeal, by the way. We can imagine your surprise.