Defense lawyers in bribery case accuse government of “outrageous conduct”

Published 6:03 pm Tuesday, February 12, 2008

Lawyers for three Mississippi attorneys charged with trying to bribe a state court judge accused federal authorities Monday of relying on “made-up conspiracies” to manufacture a case against their clients.

Richard “Dickie” Scruggs, his son and law partner, Zach, and attorney Sidney Backstrom were charged in November with conspiring to bribe Circuit Judge Henry Lackey for a favorable ruling in a dispute with other lawyers over $26.5 million in fees.

In court papers filed Monday, defense attorneys asked a federal judge in Oxford, Miss., to dismiss the charges against the three lawyers, citing the government’s “outrageous conduct” in the case.

Defense lawyers claim investigators enlisted Lackey to “instigate the crime” and later concealed evidence that Scruggs and his associates weren’t involved in the alleged bribery scheme.

To support that argument, defense attorneys cite excerpts from wiretapped conversations between Lackey and attorney Timothy Balducci, who already has pleaded guilty to a conspiracy charge in the case.

Scruggs’ lawyers say the taped conversations show that Lackey, acting as a “government agent,” solicited a $40,000 bribe from Balducci “in an unsuccessful attempt to create evidence of a crime.”

“This is the crux of the government’s outrageous conduct: blatantly manufacturing a crime where there was no evidence of a previously existing crime,” defense lawyers wrote.

The tapes also show Balducci repeatedly telling Lackey that Scruggs wasn’t involved and wouldn’t know about their conversations, according to defense lawyers.

“Yet, after eight months of efforts to find — and then create — evidence of a crime, the government was still left with only made-up conspiracies,” Scruggs’ lawyers wrote.

U.S. District Judge Neal Biggers Jr. didn’t immediately rule on the motion to dismiss the charges. Biggers has set a March 31 trial date for Richard and Zach Scruggs and Backstrom. U.S. Attorney Jim Greenlee did not immediately respond to messages left Monday at his home and office.

Richard Scruggs is one of the nation’s wealthiest plaintiffs lawyers, having earned tens of millions of dollars from tobacco and asbestos litigation.

Lackey was presiding over Scruggs’ dispute with other lawyers over $26.5 million in fees from a mass settlement of Hurricane Katrina insurance lawsuits. Prosecutors claim the attorneys offered to pay Lackey to issue an order sending the case to arbitration.

Defense lawyers, however, said it would make “precious little sense” for Balducci to bribe the judge for an arbitration order because it was a request they were likely to win anyway.

“Moreover, sending the case to arbitration was no guarantee of victory on the merits of the case,” defense lawyers added.

On Sept. 18, investigators were listening when Lackey told Balducci he needed money to “help get me over a little hump I’ve got,” defense lawyers say. On Sept. 27, Balducci allegedly gave Lackey $20,000.

“I want you to know, though … this is just between you and me,” Balducci told Lackey during that Sept. 27 meeting, according to defense lawyers.

“Now I would think Mr. Scruggs would have to know something about it,” Lackey said.

“Here’s how it works,” Balducci responded. “(There will) come a time where I’ll sit down in private and I’ll tell him that I solved a problem for him.”

Balducci, who is cooperating with authorities, was confronted by investigators on Nov. 1, and later sent into the Scruggs Law Firm wearing a bodywire, defense attorneys say.

Also on Monday, defense lawyers asked Biggers to bar prosecutors from using material from dozens of wiretapped conversations.

The lawyers say investigators taped two calls between Richard Scruggs and Steven Patterson, a former state auditor who has joined Balducci in pleading guilty to conspiring to bribe Lackey. Scruggs’ lawyers didn’t describe the substance of those conversations in court papers.

Zach Scruggs and Backstrom are seeking separate trials. In court papers Monday, an attorney for Zach Scruggs tried to downplay his client’s alleged role in the case.

“If the alleged conspiracy were a movie, Zach Scruggs’s character might not even have a name, or, more likely, would have been cut from the final script,” his lawyer wrote.