The women were desperately trying to save him from the possibility of a terrible sentence.
Diane and Amy belittled the stigma of a misprision of felony conviction. “What’s that? It’s nothing,” Diane said. Amy said she could accept the prospect of a relatively short prison sentence, but not the specter of a long one. If the plea bargain ensured that Zach would not be jailed, Diane and Amy argued, he should accept the offer.
Outside, a harsh rain pelted the grounds of Scruggs’s property, where the first manifestations of spring were beginning to show in the scores of flowering shrubs planted the year before.
Zach thought to himself: I can fight the government, but I can’t fight my family and my lawyer, too.
Three days later, Zach stood before Biggers, laboring to appear as humble as possible. He attached the honorific “Your Honor” to each of his answers as the judge led him through a sequence of pro forma questions. At the end, Judge Biggers asked, “Do you plead guilty or not guilty to count one of this information?”
“I plead guilty, Your Honor.”
David Sanders, one of the prosecutors, told the judge that the government would recommend probation. Throughout the negotiations, Zach’s attorneys felt comfortable with Sanders. He was younger and seemed to understand the intricacies of Zach’s case. They believed Sanders had been consistent in his dealings with them and had pushed for a deferred prosecution in his discussions with his own colleagues. But Sanders was the junior member of the prosecution team, and within days he would be leaving the U.S. Attorney’s Office to become a federal magistrate.
Biggers informed Zach that the court would not be bound by the prosecutors’ recommendation, and he mentioned that a three-year prison sentence was still possible under the law.
Before the session ended, Zach sought permission to speak. “I’d like to start out by telling the court, and the public, that I had no knowledge that Tim Balducci bribed Judge Lackey,” he said.
Zach’s comments were a reflection of his attitude. He continued to assert innocence, even though he had just pleaded guilty.
“I didn’t conspire to bribe Judge Lackey in connection with an arbitration order,” he continued, “and I would have stopped it had I known.”
Zach did not realize that his remarks were triggering an adverse reaction among the federal authorities in the courtroom. As he spoke, he ratified their belief that he was prideful and arrogant, a young man who deserved to be cut down a notch.
“As a member of the Mississippi bar,” Zach went on, “I had a duty to prevent such contacts from occurring and to report them, and I failed to do so. I am truly and humbly sorry for that, and I apologize to the court, to the legal profession I love so deeply, and to the people of Mississippi.” He closed by saying that he hoped his case might serve as a lesson to lawyers in the state.
Zach’s speech failed to move Biggers. “All right, Mr. Scruggs,” the judge said, dismissing him. “Of course, the legal profession that you say you love so much, you will not be a part of it for the rest of your life.”
CHAPTER 25
In the welter of betrayals and personal hatreds that characterized the Scruggs case, one man seemed to emerge with his reputation enhanced: circuit judge Henry L. Lackey. Publicly promoted as a hero by Grady Tollison, whose lawsuit had led to Balducci’s bribe, and hailed by federal prosecutors for his willingness to report Balducci’s first inappropriate approach, Lackey enjoyed an afterglow of admiration. In commentary headlined “Consider Judge Lackey” displayed on the front page of The Clarion-Ledger’s Sunday Perspective section, one Mississippi attorney wrote, “Thank God for men like Judge Henry Lackey!”
After serving in relative anonymity in rural North Mississippi, the old judge seemed to be reaching apotheosis. The Mississippi Supreme Court would give him their highest honor, the Chief Justice Award, while the state bar association added its Judicial Excellence Award.
In interviews, he liked to describe himself as simply a “country bumpkin” who loved the law. But a month after the guilty pleas by the members of the Scruggs Law Firm, Judge Lackey’s genial side gave way to a more disagreeable nature when he made a dramatic appearance in the reopening of Johnny Jones’s suit against the remnants of the Scruggs Katrina Group.
The case had been moved out of Lackey’s hands—for obvious reasons—and assigned to circuit judge William Coleman from Jackson, who presided at a hearing in Oxford to determine the extent of involvement in the bribery by the defendants in the civil action. Lackey’s role would shift from that of judge to that of witness.
Before Lackey took the stand, Dick Scruggs was called as a witness, and he repeatedly invoked his Fifth Amendment rights in refusing to answer questions posed by Tollison, who still smoldered. As a regional president of the American Board of Trial Advocates, Tollison sent a fiery email to its members. Though he did not believe in capital punishment, Tollison wrote, he would be willing to make an exception for judge-bribing lawyers.
With Tollison guiding him during his opening testimony, Lackey was loquacious. But the judge’s animosity toward Scruggs came tumbling out during a cross-examination by Oxford attorney J. Cal Mayo, who now represented Scruggs in the civil case.
Mayo found himself in a delicate position: the witness was a judge in whose court he would continue to practice. At the same time, he had a responsibility to his client to question Lackey’s motives. An additional source of tension existed in the courtroom. A decade earlier, Mayo had been offered a job by Tollison when Mayo worked as counsel for the University of Mississippi. Mayo sought advice from a friend who had experience with Tollison’s firm. He was warned of Tollison’s volatile personality. “Don’t go to work for him,” the friend urged Mayo, adding, “And if you don’t go to work for him, he’ll never speak to you again.” The prediction proved accurate. Although they practiced law in the same town for the next ten years, Tollison refused to acknowledge Mayo’s existence. During the run-up to the hearing, Tollison would not return Mayo’s phone calls or agree to an informal discussion of the case. Mayo decided that Tollison, riding a crest of favorable publicity for his part in bringing down Scruggs, now considered Mayo an acolyte of Satan.
Mayo employed a deferential manner in questioning Judge Lackey, but at the beginning of his cross-examination he touched on a sensitive subject: a suggestion that Tollison had engaged in improper ex parte contact with the judge a year before when he presented Lackey with an order to seal Jones’s lawsuit, a move that gave Tollison a tactical advantage.
Mayo: “Was anyone there at this time representing any of the other parties to this lawsuit besides the parties that Mr. Tollison repre-
sented?”
Lackey: “Oh, no.”
“And did Mr. Tollison tell you who any of the parties were?”
“I don’t believe he did.”
· · ·
“Did he tell you that there was an arbitration agreement that the parties had signed?”
“No.”
“Did he tell you that there had been settlement discussions ongoing?”
“Been what?”
“Settlement discussions between the parties.”
“No.”
“Did he mention that the entry of this order sealing the complaint might impact those settlement discussions?”
“No. He said it might help to keep from hanging their dirty wash out before the public.”
Mayo’s line of questioning drew Tollison out of his chair. He objected to “all this about my conversations,” and said it was irrelevant to the purpose of the hearing.
The objection was sustained, but Mayo managed to pursue Lackey with a few more questions.
“Did Mr. Tollison prepare the order that you signed?”
“He’s the one that gave it to me. I assume he did …”
“You didn’t prepare it?”
“No.”
“Had you ever signed an order sealing a case like this before?”
“No. Never been aske
d.”
The exchange set the tone for increasingly acrimonious responses from Lackey. He acknowledged that he’d fabricated several statements during his attempts to incriminate Tim Balducci, including a false claim of being under pressure from Tollison, and another tale of inadvertently having an out-of-court conversation with a member of Tollison’s firm. Lackey rationalized his “fabrications” with Balducci.
“I was not being truthful with him, and I didn’t think he was being truthful with me, but that doesn’t make any difference, his truthfulness to me.”
Lackey was asked about Balducci’s original request that Judge Lackey perform a “favor” for him by sending the case to arbitration. “Did there come a time, Judge Lackey, when you told him to stop, wait a minute, this is a case I’m involved in?”
“No,” Lackey said. “I was shocked that he would make that overture to me. I was incensed. I actually became physically ill because of it.”
The judge said he felt an obligation to report the overture by Balducci. “I didn’t know who to turn to in this circumstance. I didn’t know what kind of monster we were dealing with at this point.”
Lackey’s use of the term monster surprised Mayo, and he would return to that description later.
Scruggs’s attorney observed that two months after the first meeting between Balducci and Lackey, “Mr. Balducci has made no quid pro quo offer and he has offered no money” in exchange for a favorable ruling.
“He was lying to me, and I was lying to him,” Lackey testified. “That’s what happened.”
Confused over the lack of progress in establishing evidence of an actual bribe, Lackey had withdrawn from the case. Mayo asked Lackey about his decision. The judge said Bill Delaney, the FBI agent, came to see him immediately to encourage him to remain in the investigation.
“After talking with him and after realizing what a monster that we were probably dealing with, and the lives that he had probably destroyed, and the young lawyers whose lives and their families that he had destroyed, I agreed to get back in it,” Lackey said.
“And who is the ‘he’ that you’re referring to, Judge Lackey?”
“Talking about Dickie Scruggs.”
“And who was it that told you Mr. Scruggs had destroyed all those lives?”
“It’s evident what he’s done,” Lackey snapped. “It’s evident. Don’t you think he’s destroyed them?”
Mayo asked if this was part of the discussion he had with Delaney and John Hailman, the prosecutor.
“I didn’t know for sure at that point, didn’t know what type of monster we were dealing with. But I realize now. I think he’s done more to destroy this profession than anything that’s happened in my lifetime.”
During his testimony, Lackey created a new controversy. He said he informed an assistant district attorney, Lon Stallings, about Balducci’s visit shortly after it happened but felt reluctant to take the information to a higher level, to Attorney General Jim Hood, after Stallings told him that Scruggs had threatened Hood’s political future.
Lackey’s statement was somewhat rambling: “I knew from my information—if it was true—that Jim Hood had told Lon Stallings that Mr. Scruggs, through Mike Moore, had promised him if he didn’t go along with the settlement of these State Farm cases and allow them to collect this $26.5 million in attorney’s fees, that they would find a candidate that would run against him.”
Lackey had not forgotten that Scruggs had driven his friend George Dale out of the insurance commissioner’s office the year before. “They would fund” an opponent to challenge Hood “just like they were going to do the commissioner of insurance,” the judge declared. “Now, that’s what I knew.”
Moore, sitting in the courtroom, was outraged by Lackey’s statement. At a break in the hearing, the former attorney general told reporters, “Judge Lackey either is very confused or he made up the story out of whole cloth. Jim Hood is a very, very close friend. He worked for me, supported me in my first campaign. I encouraged him to take my place.”
Reached later by reporters, Hood said, “Mike Moore never approached me with such a message.”
Stallings said of Lackey’s testimony, “A few details got confused, but the thrust of his testimony was correct.” Stallings said Lackey didn’t trust the attorney general’s office because Hood, Moore, and Scruggs were all friends.
Before he left the stand, Lackey asked the presiding judge if he could “retrieve my personal notes rather than them being disseminated to the public.”
During his testimony he had carried with him, for reference, the journal that prosecutors had asked Lackey to keep concerning his dealings with Balducci. Copies of the document were turned over to attorneys on both sides, but Lackey said they should not be made public.
“I don’t mind the lawyers having access to them,” he said, “but there are other matters in here of my personal expression about certain things and certain people.”
The journal would reflect his ill prediposition toward the Scruggs group, which he had called “scum.” In an early entry, Judge Lackey had also referred to Balducci as “the little wop.”
Lackey’s request to restrict his journal was granted.
Throughout the spring, Scruggs prepared for prison. His sentencing would take place on June 27, and shortly afterward he would lose control of his future. A physical fitness buff, he began trying to work out regularly again at home. Seized by depression in the period after his indictment, his exercises had lapsed and the inactivity had contributed to his malaise. Now he felt a need to build back his strength.
More important, he took steps to deal with a demon that only his family and a few close friends knew about: his dependency on the prescription drug that gave him a sense of well-being, even in times of stress. Fioricet had been readily available on the Internet, ninety tablets for sixty-five dollars. Once, when Sid Backstrom came to work hung over from celebrating a big lick by the firm the night before, Scruggs offered his junior partner a couple of “happy pills.” The medicine jolted Backstrom so strongly that he had to be driven home. Employees of the firm were accustomed to the task. Quite often they had to get the boss safely home.
In April, Scruggs quietly checked into a drug treatment center in Hattiesburg, a South Mississippi city 250 miles away from Oxford. He spent a week, cold turkey, in a recovery program, trying to rid himself of the craving.
He came home pronouncing himself cured. But within a few weeks, one of his secretaries, Beth Jones, discovered that he had accessed the office computer to order a new shipment of the drug via FedEx. She alerted Rex Deloach, the financial advisor who had effectively taken charge of affairs at Scruggs’s office. Jones and Deloach planned to intercept the shipment. On the day of the delivery, they spotted the FedEx truck parked on the square and waited for the order to be brought upstairs. After an unproductive interval, they peered from the balcony and spied Scruggs below, seated in his Porsche SUV. He had beaten them to the delivery man. Deloach called Diane. “He’s outsmarted us,” he said, suggesting that she intervene. Scruggs’s wife drove quickly downtown.
A few minutes later, Scruggs appeared in Deloach’s office. “I want you to be my witness,” Scruggs announced. He led his friend to the men’s room, where he opened the package and poured the tablets into the toilet.
Despite his action, the close-knit group at Scruggs’s office suspected he continued to sneak the medication for himself.
Disgraced by his guilty plea and remorseful over his son’s dilemma, it seemed natural for Scruggs to turn to any source of comfort he could find. He not only faced prison and the loss of his law practice, but had become a subject of debate at his alma mater, where there were calls to remove his name from a campus music hall. To spare Chancellor Khayat a wrenching decision, Scruggs wrote to ask that the name be taken down. The job was done overnight. The next day, no traces of the lettering remained on the building’s façade. (Scruggs also arranged a discreet disappearance of the words Scruggs Law Firm
from the front of his second-floor office overlooking the square.)
But his commitment to donate $5 million toward the construction of a new law school complex continued to cause division. The day after his guilty plea, Scruggs called Sam Davis, his childhood friend from Pascagoula who had become dean of the law school.
“Sometime we need to sit down and talk about how I’m going to fulfill my pledge,” he told Davis.
The dean, who had tried to reach him earlier to commiserate, said, “Dick, that’s the farthest thing from my mind right now.”
Scruggs had been the co-chairman of a drive to raise $10 million for the project and helped host a fund-raising gala in Oxford the year before, an event that took place three days after the fateful March 2007 meeting with Balducci and Steve Patterson.
Davis might have wanted to put off his worries about Scruggs’s money, but the subject remained very much on the minds of some law school professors who considered the gift tainted. At one faculty meeting, John Robin Bradley, a liberal voice at the school, observed, “We’ve not had the experience before of having wealthy people donate to us who were crooks. Other universities have had that experience. We should check on this, because I think there’s an ethical problem.”
Appealing for leniency from Judge Biggers, the Scruggs Law Firm defendants mobilized a letter-writing campaign among their friends.
Backstrom sent an email to his neighbors, thanking them for their “prayers and thoughts” and explaining that he had chosen to plead guilty rather than gambling with a trial that might have resulted in a lengthy sentence. “I think most of you know that I am not a risk taker, either professionally or otherwise,” he wrote. The two-and-a-half-year sentence he expected “will allow me to still see most of the years of my children (Jayne is 9, Drew is 7 and Seth is 3) growing up as compared to the terrible risk of not seeing any of those or later years …”
In these letters, Backstrom suggested, “you can request favorable consideration or leniency at the sentencing.” He added, “I don’t want to be presumptuous. If you are not comfortable writing such a letter, you need not.”
The Fall of the House of Zeus Page 39
