The Fall of the House of Zeus

by Curtis Wilkie

  Keker stood as erect as a sentry in the courtroom, and he was naturally combative. Rather than covering his walls with plaudits, he displayed busts of Napoleon to garnish his office. After graduating cum laude from Princeton in 1965, he served as a Marine lieutenant in Vietnam. Seriously wounded there, he returned stateside and obtained a law degree from Yale. He clerked for the chief justice of the U.S. Supreme Court, Earl Warren. His Marine background, coupled with his own liberal views, became special credentials when he took a leave from private practice to become associate independent counsel during the investigation of the Iran-Contra affair in the 1980s. His tough cross-examination of Marine Lt. Col. Oliver North, who claimed he was a patriot following orders from the Reagan White House, broke down North’s wall of self-righteousness and won a conviction.

  Yet Keker became best known for his defense work. When his friend, the commentator Ben Stein, was arrested for passing through an airport metal detector with an unloaded gun, he contacted Keker. “He got them to drop the charges,” Stein told reporters afterward. “He even got my gun back.”

  Keker’s clients included Black Panther Eldridge Cleaver. Even as he prepared to take up Scruggs’s defense, there were reports that Barry Bonds, the embattled home run king, wanted to hire Keker to represent him against perjury charges growing out of an investigation of steroid use in baseball.

  Instead, Keker devoted most of his time that winter to the Scruggs case as it played out in Oxford, nearly two thousand miles from San Francisco. His room at a bed-and-breakfast a few blocks from the federal courthouse was no match for the Four Seasons Hotel off Union Square, and local cuisine, while acceptable, offered no real substitute for the feasts of dim sum he found in Chinatown near his home office.

  For the cosmopolitan Keker, Oxford represented an out-of-the-way location. But he had another high-profile client whose case attracted coverage in newspapers across the country. And he had a familiar foe: a U.S. attorney’s office run by a Republican appointee and staffed with many Republican partisans.

  Although the government’s pursuit of Scruggs smacked of entrapment to his supporters, that defense could not be used because he had not dealt directly with a federal agent or an informant when he covered Balducci’s original payments with a $40,000 check. Instead, the defendants from the Scruggs Law Firm settled on a defense built around the argument that the government had created the crime for which they were being falsely accused.

  In a lengthy motion filed with the court on February 11, Keker asked for dismissal of the indictments on the grounds of “outrageous government conduct.” The document not only accused the federal government of turning Judge Lackey into an agent involved in “manufacturing a crime,” it charged that the government had “engaged in a pattern of concealing from this court” exculpatory evidence helpful to the defendants.

  The motion was carefully crafted and consisted of several key points:

  Balducci’s suggestion concerning an “of counsel” position for Judge Lackey at their March 2007 meeting was not intended as a quid pro quo for a favorable ruling in the Jones v. Scruggs case. Nothing of value was ever mentioned until the judge became aggressive.

  During the six-month interval between Balducci’s original meeting with the judge and the September day when Lackey asked for money, it was the judge, rather than Balducci, who repeatedly initiated contact.

  While the case lay dormant, with Balducci failing to follow through with any further improper requests, “the government and its agent Judge Lackey decided to instigate the crime …”

  It was the judge who called Balducci “out of the blue, using hushed, conspiratorial tones” to ask if the defendants in the Jones case would help him if he helped them.

  The government instructed Judge Lackey to ask for money.

  On the day Balducci delivered the first installment of cash, he told Judge Lackey “this is just between me and you … there ain’t another soul in the world that knows about this.” When Lackey interjected Scruggs’s name Balducci responded, “He’s not even involved at that level, Judge … Doesn’t wanna be. Doesn’t need to be.”

  Despite Balducci’s assertion that Scruggs had no part in the conspiracy, the government continued to pursue him.

  In its applications for wiretaps on Balducci’s phone, the FBI omitted information that cast doubt on the case the government was building.

  The FBI also submitted misleading summaries of recorded telephone conversations, never mentioning in documents filed with the court during the covert investigation that Judge Lackey had recused himself.

  Once Balducci was arrested, the government used him the same way it used Lackey: “as an agent sent on a mission to create evidence of a criminal scheme that did not exist other than through the government’s own machinations.”

  As a result of all of the overzealous investigation, Keker submitted, “the seed that the government planted in the spring and cultivated over the course of the summer and fall finally bore its bitter fruit”: the indictments of Dick and Zach Scruggs and Sid Backstrom.

  Drawing upon similar arguments, the defense also offered a motion to suppress evidence obtained from wiretaps on the grounds that the FBI had filed “false or misleading statements” to the court.

  The motions led to a critical hearing before Judge Biggers only nine days later.

  The case had been on a fast track ever since it was assigned to Biggers. Cases are routinely given by the federal court clerk to judges on a rotating basis, but the selection of Biggers raised some questions in legal circles because he had been the judge who earlier considered the FBI requests for wiretaps and issued the authorizations. Ideally, the judge who hears a case is not the same one involved in preliminary rulings during an ongoing investigation. With jurisdiction over the Scruggs case, Biggers was effectively sitting in judgment over some of his own decisions and presiding over a case he had been secretly following for weeks before arrests were made.

  Judge Biggers originally scheduled the trial for January, less than two months after the indictments. After the defense asked for more time, he pushed the trial date back to February. Following another request for a delay, Biggers yielded one more month. He set the trial for March and indicated that the date was firm.

  As a former prosecutor, Biggers had a reputation as a stern jurist with little sympathy for defendants. Even some bloggers who were demanding Scruggs’s head referred to the judge as “Maximum Neal.” In a recent case involving a local contractor for the failed state-owned beef processing plant, Biggers had rejected a plea bargain submitted by prosecutors that would have enabled the defendant to avoid prison. The judge wound up sentencing the contractor to twenty-two months.

  While Judge Biggers’s rulings in criminal cases seemed fearsome, he was generally respected for his judicious handling of a torturous civil case that had spanned decades in a race-related argument over state funding for higher education. He had been a state judge in 1982 when Senator Thad Cochran sent his name to the White House, and President Reagan followed through with the nomination. Biggers had never been considered an activist Republican or unduly political, and he drew little criticism. The only obstacle to Senate approval had been a scathing attack by his former wife, and that was resolved quietly, outside of any public hearing.

  After a quarter century on the federal bench, Biggers had become the senior judge in the Northern District of Mississippi. Whether the cases before him were criminal or civil, he was a grave presence in the courtroom. Peering over his glasses, he brooked no inappropriate humor nor any flippant remark. He epitomized the power of federal judges. Appointed for life, he could command marshals with the wave of his hand, reduce errant attorneys to mumbled apologies, and consign miscreants to prison without remorse.

  In hearing pretrial motions, Biggers approved two requests by the prosecution that were ordinarily reserved for cases involving the Mafia or mob-connected defendants. He ordered that the jury be sequestered for the duration of the trial and t
hat their names be kept secret. The rulings carried an implication that the defendants might try to rig the jury.

  But he granted Scruggs and the other two defendants a hearing on their “outrageous conduct” motion and their attempt to suppress evidence gathered from wiretaps. The defense team was eager to get a chance to cross-examine Tim Balducci and others, but members of the group were not sanguine about appearing before Judge Biggers.

  As they anticipated, the hearing became an uphill battle from the outset. Biggers said he had no intention of allowing the arguments to turn into a trial, and he limited Keker’s questioning of Balducci to three areas: the meeting at Scruggs Law Firm when the idea to approach Judge Lackey was first broached; Balducci’s meeting with Lackey later that same day; and the judge’s recusal.

  When Balducci was sworn in, it offered the defendants their first chance to see him since he had fed their names to the prosecutors and gone into hiding. He now seemed to them a bit weaselly. But he spoke with confidence as assistant U.S. attorney Bob Norman guided him.

  Balducci said that he and Patterson had gone to Scruggs’s office to discuss another matter—the Kentucky coal miners’ mask litigation—“when the real reason for the meeting was revealed.” Johnny Jones had just filed his suit against Scruggs, and the case was in the hands of Judge Lackey.

  “It was generally known about my relationship with Judge Lackey,” Balducci testified, “and Zach was the first one to bring that up and asked if I thought it would be possible for me to go and have an off-the-record conversation with Judge Lackey and see if I could persuade him to rule in their favor.”

  Watching from the defense table, Zach had to restrain himself from shouting, “Liar!”

  Balducci recounted details of his meeting that same afternoon with the state judge. He admitted that his request of Lackey was unethical, but said he never intended for his suggestion about an “of counsel” position with the Patterson-Balducci firm to be considered a quid pro quo for the ruling he sought.

  Judge Lackey, he testified, “never gave me any indication that he was offended by it or that he felt that what I was doing was improper.”

  Weeks later, Balducci said, he learned from Sid Backstrom that Lackey had recused himself from the case. He described Backstrom as “frantic and angry” as he directed him to “get ahold of the situation and find out what’s going on and let us know.”

  It was Backstrom’s turn to be dismayed as he listened to Balducci’s testimony implicating him. Balducci said he called Backstrom immediately after Judge Lackey asked for a payoff six months after the first meeting.

  “I advised him that I’d just left a meeting with the judge; that the judge wanted forty thousand dollars to enter the order compelling the Jones case to arbitration,” Balducci said. “And I asked him [Backstrom], is that what they wanted done? Did they want to pay the money? And, if so, how did they physically want to do it? Did they want me to pay it?

  And, if so, were they going to cover me?” He said Backstrom promised, “Let me find out, and I’ll call you back.”

  Asked about his use of a plural pronoun, Balducci said that “they” referred to “the three defendants.”

  He also directly implicated Dick Scruggs. Balducci said that he and Patterson went to see Scruggs in late September to ask about a reimbursement for the $40,000 they were giving to Judge Lackey.

  “He said that he knew that we had talked to P. L. Blake, and that he had talked to P. L. Blake. And he knew that we needed the forty, and that we would be covered and not to worry about it.”

  In his cross-examination of Balducci, Keker pounced on several inconsistencies.

  One involved a classified FBI report, known as a 302 document, describing an interview with Balducci on November 2, the day after he had been stopped by the FBI leaving Judge Lackey’s office. In the report, Balducci is referred to as CHS, FBI lingo for “confidential human source.” Describing Balducci’s account of his first meeting with Scruggs concerning Judge Lackey, the agents paraphrased Balducci’s words and wrote, “DS [Scruggs] said he was not asking the CHS for anything illegal, but could the CHS see if the judge would move the matter to arbitration.”

  In a later 302 filed by Bill Delaney, the FBI agent who controlled Balducci’s movements in the case, it is clear that Balducci wanted to change the FBI report. On December 14, Delaney wrote, “The CHS advised he did not recall making” the statement that Scruggs “did not ask the CHS to do anything illegal.” Delaney reported that he had reviewed his own notes of the interview and concluded that “the original draft was an accurate reflection of that debriefing.” After telling Balducci of his conclusion, “the CHS believed if both interviewing agents recalled the interview as originally documented, then the CHS would concur.”

  Keker approached the witness and asked, “Did Dick Scruggs say he was not asking you for anything illegal, but would you see if the judge would move the matter to arbitration?”

  “Yeah,” Balducci said. Then he quickly corrected himself. “No—that’s not accurate.” He explained, “I understand that that’s written in that 302 … And I think that was incorrectly written down by the agent in that first debriefing, and I brought it to their attention later.”

  “So, later they let you see the 302 that they wrote, and you corrected it?” Keker asked.

  “No. We had a discussion about that … I explained to them, ‘If that’s what I said, that’s not what I meant. If that’s what they heard, that’s not what I said.’ ”

  Later in his cross-examination, Keker bore in on the P. L. Blake connection.

  Balducci said Patterson had not been satisfied with Sid Backstrom’s assurance that their $40,000 would be repaid by Scruggs. “Steve said that he was going to contact P. L. Blake and make certain that he—Steve—got a direct word from Dick that Dick wanted us to go forward.”

  Keker: “And when Mr. Patterson contacted P. L. Blake, he never told P. L. Blake what you and he needed the forty thousand dollars for, did he?”

  Balducci: “I wasn’t privy to their conversation, sir.”

  “Did he tell you that he had not told P. L. Blake what you needed the forty thousand dollars for?”

  “Patterson told me that he told P. L. Blake that we were working on a problem to solve for Dick that he wanted us to solve, and that it was going to cost forty thousand dollars, and that we needed to know if he wanted us to solve the problem.”

  “Did Patterson tell you that he had never told P. L. Blake what the problem was?”

  “Yes.”

  · · ·

  After Keker completed his questioning—which had been limited by Judge Biggers—prosecutor Bob Norman opened a new line of inquiry to tie the government’s case to accusations of a second bribery involving Judge DeLaughter.

  He led Balducci to testify that he had felt comfortable in telling Judge Lackey there would be no problem in getting him $40,000 because “I had been privy previously to another matter in which Mr. Scuggs bribed another judge for a favorable outcome in a case, and I was aware of that.”

  “Your Honor,” Norman said to the judge, “that is the subject of our 404(b) motion … and I will leave that at this point.”

  Keker was not ready to abandon the subject and asked for permission to reexamine Balducci. Judge Biggers gave him five minutes to do so. The following colloquy took place:

  Keker: “You said you were privy to another matter where Dick Scruggs bribed a judge. What matter are you referring to?”

  Balducci: “A case involving an attorney named Bob Wilson who had sued Mr. Scruggs for asbestos and possibly tobacco fees.”

  “Was that case pending in Hinds County before Judge Bobby DeLaughter?”

  “It was.”

  “Was Judge Bobby DeLaughter bribed in that case?”

  “He was.”

  “By whom?”

  “By Dick Scruggs.”

  “And was the bribe a money bribe?”

  “No, sir.”

  “What
was the bribe that you’re referring to?”

  “He was offered a federal judgeship or he was offered the influence of Mr. Scruggs’s brother-in-law, who was Senator Trent Lott, to put him on the list for consideration of an open federal district judgeship.”

  “So we can get it, what do you understand—Mr. Scruggs called Mr. DeLaughter and said something?”

  “No, sir. Mr. Lott called Mr. DeLaughter.”

  “What are you saying?”

  “I’m saying that Mr. Lott called Judge DeLaughter, at Mr. Scruggs’s request, and told him that he was being considered to be put under—or put on the list for consideration for an open judgeship in that district, and that that was during the pendency of the case involving Mr. Wilson that was before Judge DeLaughter.”

  “And how do you know that that happened? You talked to Senator Lott about that?”

  “No, sir.”

  “How do you know that that happened?”

  “Because I was directly involved in the conversation between Mr. Scruggs and Mr. Langston where they were discussing it, where they discussed that the call would be made. And then I was privy to conversations after the call was made.”

  “When was that discussion, the one before?”

  “It was during the pendency of the Wilson case.”

  “Do you remember more specifically than that?”

  “It would have been around the summer of ’06.”

  “2006. So, June, July, or August 2006.”

  “I think the Wilson case—my best recollection is the Wilson case was tried in August of ’06. So it was shortly before that.”

  “Like within a month or two?”

  “Yes.”

  “Okay. You’re sure about that?”

  “It’s my best recollection, yes, sir.”

  “Because you were there. So if these conversations didn’t happen in June or July, then you’re just completely wrong about this, right?”