Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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Surprise, surprise! After seven months, the DOJ denied my appeal seeking disclosure of Ed Peters' immunity deal with the government. Here is the letter denying the appeal.

Previous posts about DOJ's refusal to disclose Peters' immunity deal are here, here, here, and here. 

In the last of the above-linked posts I point out that former DOJ prosecutor Tom Dawson disclosed the terms of Peters' deal in Kings of Tort, which Dawson co-authored with Jackson political observer Alan Lange:

On page 199, the book states that in exchange for immunity, “Peters would surrender his law license, resign from the bar permanently, and forfeit all monies received from Scruggs and Langston, in addition to [throwing Bobby DeLaughter under the bus] testifying truthfully.” That’s it.

The fact that DOJ continues to refuse to produce the agreement when one of its former prosecutors disclosed the terms of the deal in a book makes me want to run out and join the Tea Party. You've got to love the bureaucracy.

Needless to say, I am not going to waste my time filing a lawsuit trying to confirm what Dawson disclosed in his book.

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You can ask Madison-Rankin DA Michael Guest one question—what would it be? If you’re like me, it would be why hasn’t he prosecuted Ed Peters for conspiring to bribe Bobby DeLaughter?

But if you’re Clarion-Ledger columnist Sid Salter, it would be questions like “what’s your favorite color?” Here is Salter’s Sunday morning with Michael Guest. Questions included soft-balls such as “what attracted you to the job of District Attorney” and “tell us about your childhood.”

Inexplicably, Salter did not ask Guest why he did not bring charges against Ed Peters for conspiracy. Peters, Joey Langston, Steve Patterson and Tim Balducci met at the Jackson or Madison airport to discuss the bribing Judge Bobby DeLaughter. Both the Jackson and Madison airports are in Guest’s jurisdiction. 

Federal authorities granted Peters immunity for his cooperation with respect to federal charges. But Guest could have asserted state charges against Peters (and others). His failure to do so is one of the mysteries of the judicial bribery scandal. It would have been nice if Salter had asked him about it.  

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Saturday’s Clarion-Ledger ran this article on the Eaton v. Frisby case, focusing on the fact that most pleadings in the case are being filed under seal. When I looked at the file a few months ago there was no legitimate justification for sealing nearly the entire court file. Eaton—the party that hired Ed Peters—is behind all the sealed pleadings with the backing of Judge Swan Yerger.  

There were a few interesting quotes in the article. First, this one by Frisby attorney Ed Blackmon:

Blackmon said he doesn't expect an end to the case anytime soon, and added during an interview earlier this month, "I think the case is about to take a dramatic turn."

"I can't say anything about what is going on because everything is under seal," he said. "It's an unprecedented sealing of all documents." 

 A dramatic turn? Given the back story in this case, a dramatic turn will be a huge news event. Blackmon is right that the sealing of all documents in this case is wrong unprecedented.

Also interesting was this quote from Eaton spokesperson Don McGrath:

"We didn't have him (Peters) to do anything improper," McGrath said. "We want to see this come to an end. We want our day in court."

McGrath said Peters only became involved in 2007. "We in no way asked Ed Peters to try to influence Judge DeLaughter or any other judge," McGrath said.

If that sounds familiar, it should. McGrath said the same thing in August, as discussed in this post. McGrath has a script and he sticks to it.

I would like to see Eaton and McGrath answer these two questions:

1. exactly who told you that you should hire Ed Peters? 
2. what was the reason(s) you were given for why you should hire Peters?

There are legitimate possible reasons for Eaton to hire Peters. But Eaton has not publicly identified any of those reasons and its stated reason that it hired Peters because of his trial prowess is not believable. Peters was never going to try that case for Eaton. He might have sat at counsel table, but that would have been to influence Judge DeLaughter—not actually try the case.

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The book Kings of Tort, by Alan Lange and Tom Dawson, appears to disclose the terms of Ed Peters’ immunity deal with the government.

On page 199, the book states that in exchange for immunity, “Peters would surrender his law license, resign from the bar permanently, and forfeit all monies received from Scruggs and Langston, in addition to [throwing Bobby DeLaughter under the bus] testifying truthfully.” That’s it.

Ironically, while DOJ continues to refuse to disclose Peters’ agreement because there is “no public interest” in it, Dawson disclosed the terms of the agreement in a book that has garnered wide public interest.  

It appears that Dawson wrote the section of the book covering the Scruggs prosecution, including Peters’ role in the case. The book states that “immunity for Peters was a travesty of justice tough call.” The book justifies the decision by asserting that Peters corroborated Balducci’s information in the DeLaughter bribery case and caused Joey Langston to plead guilty and testify against Scruggs. It states that without Peters’ testimony, a Scruggs II [DeLaughter case] prosecution would not have been be possible.

This assertion, along with the decision to grant Peters immunity, does not make sense. The book provides little factual support for the conclusion and other facts cited in the book do not support the assertion that the Scruggs II prosecution depended on Peters. 

Elsewhere, the book suggests that Langston, who was not involved in the scheme to bribe Judge Lackey, did not trust Scruggs and was eager to reach a deal with the government before Scruggs turned on him. The book also states that the government was holding a RICO prosecution over Langston’s head, which could have led to a divestiture of much or all of Langston’s wealth earned from his law practice. Obviously, getting to keep his money would have been a huge motivation for Langston agreeing to plead guilty and cooperate.

In Scruggs I Balducci immediately confessed and cooperated, leading to the disclosure of the DeLaughter bribe in Scruggs II. Patterson and Backstrom also quickly agreed to play ball with the government, according to the book. Patterson was involved in the DeLaughter bribery and could corroborate Balducci’s testimony. Langston was approached next and was eager to cooperate as well, according to the book.  

The book does not cite facts that make it sound like the government needed Peters to get to Langston. Instead, it looks like they could have gotten to Langston with Balducci's and Patterson’s testimony. From there, they could have gotten to Peters with the testimony of Balducci, Langston and Patterson. Then, Peters would have had to turn on DeLaughter in order to reduce Peters’ prison sentence. Immunity to one individual was not necessary.

In addition, there are other reasons that the theory that granting Peters immunity was necessary does not make sense. If the Scruggs II prosecution depended on Peters, then Peters could have kept his protege Bobby DeLaughter out of jail and on the bench simply by keeping his mouth shut. And since there would have been no Scruggs II prosecution, Peters would have kept his law license and the money he was paid for bribing DeLaughter and kept Langston and everyone else from being prosecuted in Scruggs II.

Again, this does not make sense. If this were true, then Peters would have kept his mouth shut.  

My interpretation of this is that Dawson is making a poor attempt to justify a bad decision. If all these guys were so eager to plead guilty, then the government did not need to give anyone immunity. There were rumors that the government lawyers panicked and hastily agreed to grant Peters immunity. Conspiracy theorists will have more sinister explanations, but I do not buy an argument that the government lawyers were tainted in favor of Peters. It appears to have been either a poor decision made in haste, or there is more to the story than disclosed in the book.

I recognize that it’s easy to criticize a decision on the back-end when everyone knows what eventually happened. But Dawson should be able to justify the decision in the book and did not.         

The book spreads the blame for the admittedly bad controversial decision among the entire prosecution trial team, which included Dawson, Asst. U.S. Atty. Bob Norman and Asst. U.S. Atty. Dave Sanders, and U.S. Attorney Jim Greenlee.

For prior posts about my efforts to obtain the Peters immunity agreement from DOJ see here, here, and here.

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Shockingly, the government has another trick up its sleeve to stall on producing the Ed Peters immunity agreement. Taking a page out of Dean Smith's playbook, the DOJ has gone into the four corners.

Note: The four corners offense is an offensive strategy for stalling in basketball. Four of the players stand in the corners of the offensive half-court and the fifth dribbles the ball in the middle. Most of the time the point guard stays in the middle, but the middle player would periodically switch, temporarily, with one of the corner players.

Amazingly, I was unable to find a decent video of the four corners offense despite an exhaustive (10 minutes on You Tube) search.

Here is the DOJ's letter .

I can sue DOJ to try to get a judge to order production of the agreement, but not until the appeal is decided. I'm sure DOJ will be in a big hurry to rule on (deny) the appeal. I'm starting to see how Yossarian felt.

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Once again the Justice Department refused to turn over Ed Peters' immunity agreement. Here is the DOJ's response. I received what appears to be a form letter like the one that DOJ sent last time, as discussed in this earlier post.

But this time DOJ added a note on the last page:

NOTE: We have received your letter dated Sept. 16, 2009. Is the immunity agreement you seek a public record?

Great. A clue. I take this to mean that DOJ is either trying to be helpful, or playing games. I'm a natural cynic, so it's not much of a question to me. But I'll take the bait anyway and request all public records.

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Judge Davidson's opinion authorizing the delivery of materials related to Ed Peters' grand jury testimony in the DeLaughter criminal case to Judge Barbour (presides over Frisby employees' criminal trial) and Judge Yerger (presides over Eaton v. Frisby civil case) has been reported on multiple sites. Here is the AP newspaper article, and posts by NMC here and here. There is a link to Judge Davidson's opinion in the second NMC post. Judge Davidson's opinion states that there is authority to support requiring disclosure of the information.

Unfortunately for the public, the information will be provided to the judges under seal. Judge Yerger has already shown a tendency to seal evidence related to DeLaughter-Peters in the civil case even when the justification appears real thin. It will probably be easier for him to seal material from a grand jury investigation, which normally remains confidential.

The most interesting element of the story is the capacity for Eaton's spokesperson to continually stick his foot in his mouth. Eaton spokesman Don McGrath is quoted in the articles:

"We in no way hired [Peters] to influence Judge Delaughter or any other judge on Eaton's behalf," McGrath said. "We feel that our case is very strong, and I think the government's case is very strong."

You would think that Eaton would do a better job in screening McGrath's quotes. Here, he should have said that Peters wasn't hired to "improperly" influence Judge DeLaughter. Lawyers are most definitely hired to influence judges. Isn't that how cases are won? By influencing judges and juries? There is nothing wrong with hiring lawyers to influence judges--it's when you hire a lawyer to improperly influence a judge that you get into trouble.

In Eaton v. Frisby Ed Peters did not: originate the case, file an entry of appearance, appear as counsel on any pleadings, draft any briefs or other pleadings, appear at any depositions or appear at any hearings. So what was his job, Eaton?

We do know that Eaton did not like Special Master Jack Dunbar's rulings in the case and Ed Peters worked as an intermediary between Judge DeLaughter and Larry Latham and that DeLaughter unilaterally replaced Dunbar with Latham, until Latham smelled a rat and reported the whole thing to Judge Yerger. This falls outside the category of properly influencing a judge. Eaton will of course claim that it did not know what Peters was doing. It is unknown what Peters may say about this. But it brings one back to the question: what did Eaton think Peters was doing?  

I have not read a quote from Eaton giving a logical and coherent reason for its hiring Peters. Let's face it, everyone knows that Eaton hired Peters because of his relationship with DeLaughter. If Eaton denies this fact, it is going to damage all other arguments that Eaton makes. It's guilt by association: this Peters argument is hogwash, so the rest of your arguments must be hogwash too. And Eaton did not have to deny that it hired Peters to help with DeLaughter. All it had to say was that Eaton hired Peters because of his credibility with DeLaughter, but that everything was supposed to be on the up and up. If Peters did something improper, Eaton did not know or approve. But Eaton appears to be beyond making this assertion at this point and is stuck with arguments that no one believes.    

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Point of Law has this post about Governor Barbour speaking about the judicial bribery scandal in Mississippi. The original question appeared to be about tort reform, but Barbour worked in the scandal:

BARBOUR: I don't think it was related to the tort reform, but as you know, some of the more prominent plaintiffs' lawyers in my state got into trouble. ...

I hate it. It's bad for the court system, it's bad for everybody. One of the things I really believe is, the public has to think the legal system is on the up and up. I mean, that's just really, really important.

Once in my career, I was the deputy chairman of the International Democrat Union, which despite its name - Democrat and Union - is the organization of conservative parties of the world that President Reagan started with Mrs. Thatcher and Chancellor Kohl. And I was struck by how much people in other parts of the world realized the importance of the rule of law in America. And it is not that way everywhere. There are advanced countries that are very prosperous that don't have nearly the confidence, faith and commitment to the rule of law that we do.

And for us, an advantage for us is the little guy generally believes that the court system is on the up and up.

All of sudden we get judges getting convicted of taking bribes and lawyers, good lawyers - they may have been plaintiffs' lawyers and they may be on the other side from me, and politically and everything else - but they're good lawyers. To me it's sad, 'cause it's bad for what we all ultimately want in America, and we do want the rule of law, and we want a system that let's us progress. 

But the tort reform battle and the actual enactment of tort reform I don't think had any role in that. It was other stuff. Most of the litigation had actually started before.

MEESE: I understand that. I have always felt that, to some extent at least, the tremendous amount of money that came to be involved, and the way that the trial lawyers were holding their seminars and dealing themselves, led to the arrogance that led to people like Dickie Scruggs and Bill Lerach to have the bribes and so on...that the money in effect was so great for these trial lawyers that it almost corrupted the system and that's what led to some of these things that we've talked about.

BARBOUR: It's maybe a monetary takeoff on "Power corrupts and absolute power corrupts absolutely."

I don't always agree with Barbour, but he is dead on with his comments that it is important that the public believe in the integrity of the judicial system. The same applies for the bar. As a litigator, I realize that my client will not always win. But it is imperative that we be able to trust the process. Of course, according to DOJ there is no public interest in the judicial bribery scandal.

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A few weeks ago I made a Freedom of Information Act request to the Department of Justice seeking a copy of the government's immunity agreement with Ed Peters. DOJ refused my request. Here is a copy of DOJ's refusal letter. According to the DOJ, I am not entitled to the information because Peters did not consent and there was no showing that the public disclosure outweighs Peters' privacy interests. My request letter to the DOJ did not identify a public interest for the disclosure. My limited research on  the topic, however, suggests that this is not the type of private information that the privacy act was designed to protect. In addition, it's my understanding that the government should produce the information with the private information redacted.

The suggestion  that the public in not interested in the Peters immunity deal is a joke. I suspect that the DOJ does not want to produce the agreement because it is embarrassed that DOJ granted Peters immunity. My informal reading of public opinion both in and outside the bar is that Peters should have been prosecuted.

Rather than go straight to an appeal I am going to try to clean up DOJ's objections by submitting another request. If that request is denied I will appeal. In the meantime, if anyone already has the Peters immunity deal and is willing to share it with me I would appreciate it.

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Jimmy Gates at the Clarion-Ledger reports on a hearing yesterday in Eaton v. Frisby on the issue of whether the Peters-DeLaughter aspect of the case will be kept under seal. The more that this story develops the weaker Eaton's arguments sound. The article summarized the party's positions as follows:

Frisby:

But Alan Perry and Robert McDuff, attorneys for Frisby, now known as Triumph Group Inc., argued sealing should be done on a document-by-document basis.

"Closing everything engenders suspicion and mistrust," McDuff said.

Eaton:

Eaton has argued to keep many court papers sealed, including Yerger's order for Peters to give a deposition. Peters' transcript, however, would be sealed until the court makes a final determination, Yerger ruled.

Yerger asked [Mike] Wallace how Eaton would be prejudiced if the documents in the Eaton vs. Frisby case weren't sealed.

"By suspicion," Wallace responded.

Frisby has the better argument by far. We're ALREADY suspicious.Eaton wanting to maintain secrecy into the investigation of Eaton makes me more suspicious. If you did nothing wrong, why do you care if everything is public?

Eaton hired Ed Peters in the biggest civil case in Mississippi-- a theft of trade secrets case involving hundreds of millions of dollars. Peters' background was as a prosecutor, not as a civil trial lawyer who had obtained a lot of big verdicts. Then Peters did not file an entry of appearance in the case and Frisby did not even know he was on the case. Eaton says that it hired Peters because he had tried a lot of cases. But Eaton's story has some obvious holes.

First, when you hire a hot-shot trial lawyer you want that lawyer to appear in the case to try to scare the other side. Having Peters lay in the weeds does not really serve a purpose. Second, it begs the question of how Peters was being paid? Lawyers getting paid by the hour have an economic incentive to formally appear in the case so that the opposing party has to mail them all their pleadings. In a case this big, a lawyer billing by the hour stands to make a lot of money just reading all the pleadings that the parties file. That was apparently not a big concern for Peters.

Third, Eaton's claim is just intellectually dishonest. Although I believe that there should be, there is no prohibition in Mississippi of hiring a lawyer because of the lawyer's perceived relationship with the judge. The lawyer can't discuss the case with the judge, but he can work on the case. And if the judge respects the lawyer because he knows him, that's just part of it. Our system trusts the judge to not let the relationship influence him and the lawyer to not contact the judge about the case. Here, Eaton could literally just have said that it hired Peters because it thought that Peters could help it with the judge. But Eaton can't say that here, since DeLaughter had no way to know that Peters was on the case, since Peters never filed an entry of appearance.

Eaton appears to be conceding that Peters had improper contact with DeLaughter. Larry Latham's testimony in a 2008 hearing before Judge Yerger pretty much proves that fact with circumstantial evidence. Eaton's defense appears to be that it did not know what Peters was doing. But that begs the question of why Peters would do it on his own? Tim Balducci did it with Judge Lackey because he was sucking up to Scruggs. Peters did it with DeLaughter in the Langston case for a million dollars. But in the Eaton case why would Peters, with Scruggs' million already in his pocket, risk his and DeLaughter's freedom on a case where he wasn't even the lead local attorney for Eaton? When he didn't even appear on the pleadings? When if he was getting paid by the hour he would get paid the same win or lose? It just doesn't make sense unless:

1.  Peters and DeLaughter were so corrupt that they did not even think about crossing ethical lines; or
2. Eaton and/ or one or more of Eaton's other lawyers knew what Peters was doing.

If there's another plausible explanation I'd like to hear it.

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The Clarion-Ledger contained two stories on Sunday about the controversial decision by the federal government to grant Ed Peters immunity in the judicial bribery scandal involving Judge Bobby DeLaughter. One is an opinion piece stating that Peters got off easy. The other article  mentions the fact that Peters could still face prosecution, stating:

But that doesn't mean Peters won't be charged in other districts for his alleged wrongdoings in other cases DeLaughter heard, Mississippi College School of Law professor Matt Steffey said. "Many people are justly concerned that Mr. Peters and Mr. Peters alone escaped criminal liability."

But at this point it appears that Peters will escape prosecution. The article quotes Hinds County D.A. Robert Smith as stating that he will not prosecute Peters:

Hinds County District Attorney Robert Shuler Smith said his office wouldn't investigate Peters because it's been a federal issue. "They've never called me and asked for our help," Smith said.

Smith said there was not a conflict of interest because of his relationship with Peters, who publicly endorsed Smith for district attorney. The two once were seen eating lunch together in Hattiesburg earlier this year. Smith said Peters was giving him advice on running a DA's office.

That's weak. Smith might as well just admit that he feels indebted to Peters. Smith is letting Peters take a walk not only in Scruggs v. Wilson, but also in Eaton v. Frisby if the facts in the government's 404(b) motion in the DeLaughter case are true. Here is NMC's discussion of that issue. Peters was prepared to testify that he conspired with DeLaughter in Eaton.

As for Mississippi Attorney General Jim Hood:

A spokesperson for Attorney General Jim Hood neither confirmed nor denied an investigation by Hood's office.

Many of Hood's prosecutions have been of the shoot first and ask questions later variety. Given this tendency to rush in, I doubt that Hood will prosecute at this late date. His office just will not come out and admit it.

That leaves one person not mentioned in the article who could prosecute Peters: Rankin-Madison County District Attorney Michael Guest. According to Tim Balducci, Peters, Steve Patterson, Joey Langston and Balducci met at the Jackson or Madison airport to discuss Peters' communications with Judge DeLaughter about Scruggs v. Wilson. Both airports are in Guest's jurisdiction. While I am no criminal law expert, it sounds like a conspiracy was committed in Guest's jurisdiction. It is unclear why Guest, who is a Republican, would not be eager to prosecute in this high profile case. It is unclear whether Guest has a personal relationship with Peters or if pressure has been put on Guest to not prosecute in the case. At this point, it looks like Guest is the last hope for those who would like to see Peters held accountable for his role in the scandal. Clarksdale attorney Charlie Merkel expresses the sentiments of many when he states:

"I hope [the investigation] goes forward, and I hope the rest of the culprits get nailed, but I am not optimistic that will happen."

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Saturday's Clarion-Ledger contains this article about possible appointees for the Circuit Court Judge seat formerly held by Bobby DeLaughter. The article mentions Rep. Phillip Gunn and Judges Bill Skinner and Bill Gowan as possible replacements. Ipse Blogit has this position going to Gunn if he wants it. Ipse Blogit probably has much better sources on this than the Ledger.

Sunday's Clarion-Ledger has this article about the status of the judicial bribery probe and the Eaton v. Frisby case. While the probe may not be over, I have trouble believing that it is going anywhere. The original indictments of Scruggs and company were handed down quickly. With all of those guys cooperating it's hard to believe that it would take this long for more indictments. Everyone thought that there would be more lawyers indicted in the fen phen probe, but there never were. The judicial bribery probe looks similar as far as dying a slow death.

The most interesting part of the article were the quotes of Eaton senior vice president of communications Don McGrath. McGrath denies that Ed Peters was brought into the case to improplery influence Ed Peters:

"There are a lot of false statements in here," said Don McGrath, senior vice president of communications for Eaton, said of the document. "In no way did we ask Ed Peters to imply or ask or insinuate that he would do anything improper in trying to influence Judge DeLaughter or any other judge."

Asked why Eaton decided to hire Peters, a longtime prosecutor, McGrath replied, "There are few Mississippi trial lawyers that have as much experience as Ed Peters."

As for Peters not being listed with the other attorneys of record, McGrath explained that not everyone who works on a lawsuit gets mentioned. "There's no requirement to list everybody working on the case," he said.

I don't buy any of this. First, there is not one lawyer in the Jackson area who would believe that Peters' job on the case was to do anything other than influence DeLaughter. If Eaton's objective was for Peters to "properly" influence DeLaughter, that is a slippery slope. The fact that Peters never filed an entry of appearance, which is standard when a new lawyer enters a case, suggests that the intent was to improperly influence DeLaughter. Otherwise, how would DeLaughter know that Peters was even in the case, since he never appeared?

Second, the justification that Eaton hired Peters because of his trial experience is hogwash. If that was true, Peters would have been trying civil cases all over the state instead of focusing his civil practice on airport meetings sandwiched around lunch with the judge at Shoney's. If McGrath cannot do any better than this he needs to keep his mouth shut.

Third, although there is no requirement to mention everyone working on a case, why exactly did Eaton not disclose that Peters was on the case? The fact that it's not required sounds more like a defense than a real reason. Peters was involved in the case and apparently talked DeLaughter into replacing Jack Dunbar as special master. Peters went so far as to call Larry Latham to see if he would be willing to serve as special master, but later left a cryptic message with Latham to not mention his name. To Latham's credit, he immediately reported this. This leaves the question of what Eaton and its lawyers knew about all this.

According to Tim Balducci's testimony about Scruggs v. Wilson, Peters did not get hired and then never communicate back with the people who hired him. In the Scruggs case, Peters communicated his every move back to the Scruggs team. Why would it have been any different in Eaton? Why would Peters have taken it upon himself to get the special master replaced after a bad ruling?  And would he have done it without consulting with the other Eaton lawyers on the case? In my opinion, the answer is no. The bottom line is that the more information that emerges, the worse it looks for Eaton.

I intend to write more about this later, but there should be a rule or law in Mississippi that prohibits the hiring of a lawyer because of the lawyer's personal relationship with the presiding judge. There is currently no such prohibition.   

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In my last post I talked about how bad it looked for Judge Bobby DeLaughter in his upcoming criminal trial. I was not alone in this assessment andtoday's announcement that DeLaughter will enter a guilty plea to lying to the FBI is not surprising. In fact, it would have been shocking if DeLaughter had not pleaded guilty given the lineup of former lawyers who were lined up to admit that they bribed DeLaughter.

DeLaughter's downfall is, in my mind, the worst part of the entire judicial bribery scandal. The trials of Whitfield and Teel were arguably political and everyone involved always denied any impropriety. But in the DeLaughter case everyone involved except for Trent Lott has admitted to wrongdoing. Before this mess started there were many lawyers who held DeLaughter in high esteem. I respected DeLaughter and have previously mentioned the fact that I thought his book Never Too Later was well done. I was not enamored with DeLaughter on the bench because I thought he was too unpredictable. That perception now casts a cloud over his entire judgeship. Many lawyers who lost on a questionable ruling by DeLaughter will wonder if there was any behind the scenes impropriety. At a minimum, DeLaughter's judgment, the very foundation of a judge, now appears flawed. 

If DeLaughter wants to truly make amends he should publicly come clean on any and all impropriety involving he and Ed Peters. It's hard to believe that DeLaughter and Peters got caught on the only case that they ever improperly conspired on. And while I am sure that DeLaughter still maintains that he didn't conspire with Peters in Scruggs v. Wilson, it is clear that at a minimum he allowed himself to be controlled by Peters. DeLaughter should publicly disclose every case that he and Peters discussed while DeLaughter was a judge. The files of those cases should be examined for any unusual rulings. 

The judicial bribery scandal has been a huge black eye for the Mississippi judicial system including the lawyers and judges in that system. If DeLaughter's plea brings the scandal to a close neither the public nor the legal community will believe that all the bad actors and illegal conduct has been exposed. So far the only person to publicly come clean is Tim Balducci and that is only because someone obtained a copy of his deposition in the Eaton v. Frisby case that was supposed to be sealed. We hear that all the lawyers in jail and Peters (who should be in jail) are cooperating with the government. But that does little to restore the public's faith in the judicial system because the government does not publicly disclose its investigation, which proceeds at a glacial pace. We need depositions or similar mechanisms to force all the principals in the Lackey and DeLaughter bribery scandals to publicly disclose everything that they know. If there are other lawyers or judges who committed illegal conduct, then they should be exposed, prosecuted and disbarred. We do not need this thing ending without knowing whether this was the tip of the iceberg or the whole iceberg.

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This is my first update in a week due to an ongoing trial in federal court in Jackson. I have another busy week ahead and will return to more regular blogging next week. Usually July is very slow in the legal world, but this year has been a notable exception. A huge story this week was the NAF completely pulling out of consumer arbitrations and the AAA pulling out of credit card consumer arbitrations. There is a clear indication that mandatory consumer arbitration will be dead soon. Other commentators who say that it's too early to tell are wrong. They remind me of people who go to the beach when a hurricane is about to hit to make sure it's for real. I saw the arbitration backlash coming several years ago, but it is arriving years before I expected. It appears that the NAF, and perhaps AAA, fear criminal investigations regarding the administration of arbitration claims. I expect there to be a lot more to come out about crooked arbitrations and people to go to jaiI. 

I give mandatory arbitration less than a year before Congress shuts it down. Mandatory arbitration is not popular with judges--even judges who enforce arbitration clauses. So don't expect the judiciary to rule that a Congressional ban on arbitration is unconstitutional. Any plaintiff lawyers with unfiled cases with arbitration clauses should sit on the cases as long as possible in order to allow arbitration's final demise.

On another subject, despite my trial I stayed up late one night this week reading Tim Balducci's deposition taken in Eaton v. Frisby. Balducci's deposition was fascinating. Chase Bryan at Forman Perry took the deposition and I do not think that was a coincidence. Bryan has been described as local counsel on the case for a Philadelphia firm and is below Alan Perry at Forman Perry in the defense pecking order. But Bryan and Balducci were law school classmates at Ole Miss in the early 90's and I could sense their familiarity in the deposition. One example is that Balducci repeatedly referred to Bryan as "Chase", but referred to Eaton lawyer Mike Wallace as "Mr. Wallace." It is rare for local counsel to receive such a marquee assignment and the move was a smart one. Bryan did a good job taking the deposition.

As for the deposition itself, I believe that Balducci was literally crying when he described his conduct as the biggest moral and ethical failure of his life. Two things lead to this conclusion: (1) the clearly emotional testimony and  (2) the fact that Bryan immediately said "lets take a break." It is customary in depositions to take a break to let a witness in tears compose themselves.

Balducci basically described himself as the brains of the operation in the Wilson v. Scruggs case. He made Joey Langston sound somewhat buffoonish. I don't completely buy the image of Balducci that he seems to have for himself. I get the impression that Balducci believes that he fell off the tracks morally when he got involved in the Wilson case. But I can't understand what he was doing working as an associate for Joey Langston at the time. Before going to Langston's firm Balducci had his own practice with Kent Smith for years. The two had been joined at the hip since law school and I've never heard an explanation for what led to their separation. Balducci apparently went back to work for Langston thinking that it would lead to a full partnership. If that was the case, Balducci should have known better.

Wealthy lawyers like Langston rarely ever cut someone in with a large piece of their practice. The state is littered with plaintiff lawyers who started working for a prominent plaintiff lawyer only to eventually go out on their own when partnership promises never materialized. Unlike in defense firms, it's extremely rare to see the same core group of lawyers at a plaintiff firm for years. Merkel and Cocke in Clarksdale is a notable exception.  

Balducci testified that he was the source of the $50,000 in cash that Langston first paid to Peters. What in the world was Balducci doing with $50,000 in cash sitting around the house? Keeping that much cash around is a bad idea for many reasons and wreaks of tax fraud.

As to the impact of Balducci's testimony on Eaton v. Frisby and the DeLaughter trial, it's hard to say. The vast majority of Balducci's testimony was based on hearsay that would not be admissible at trial. Mike Wallace skillfully established this point near the end of the deposition. But if Balducci's testimony is corroborated by Ed Peters, then I do not see how DeLaughter can be acquitted. And even if DeLaughter somehow escapes conviction, I don't see any path for his to return to the bench. It looks like the best case scenario for him is that he exercised terrible judgment in communicating with Ed Peters and was unwittingly used as a pawn by Peters, who he fawned over in his book It's Never Too Late.

As for Frisby,  Balducci didn't know anything about it or the lawyers in the case who he was asked about: Mike Allred, Rueben Anderson and Fred Banks. It's unclear what Judge Yerger is going to do in the case, but the longer he goes without dismissing the case for attorney misconduct the less likely that it will be dismissed.

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The Clarion-Ledger contained a story this week on the deposition of Tim Balducci in the Eaton v. Frisby case. Balducci was deposed in prison in June and the Clarion-Ledger obtained a copy of the deposition, despite the fact that the case was supposed to be sealed. The focus of the story was how Balducci's testimony will impact the upcoming criminal trial of Judge Bobby DeLaughter. According to Balducci, Judge DeLaughter became upset when he did not get a federal judge appointment after issuing rulings favorable to Richard Scruggs in the Scruggs v. Wilson litigation.

The Ledger ignored the large question of how Balducci's testimony will impact the huge Eaton v. Frisby case and the careers of some of the attorneys in that case. If it is determined that Ed Peters attempted to improperly influence Judge DeLaughter in the Eaton case, it could lead to state or federal criminal charges against Peters and others who he acted in concert with. It could also lead to the dismissal of the case and sanctions by the Court or Mississippi Bar against the lawyers who participated in any wrongdoing. The Eaton case is just as significant as the DeLaughter trial and the Clarion-Ledger should not ignore it.   

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On Friday the Clarion-Ledger reported that Hinds County Circuit Court Judge Swan Yerger stayed Eaton Corp. v. Frisby Aerospace pending a determination of whether former Eaton lawyer Ed Peters improperly influenced Judge DeLaughter when he had the case. Eaton is the plaintiff and alleges that former Eaton employees stole $1 billion in trade secrets and gave them to Frisby. If there is a bigger case pending in Hinds County I do not know what it is.

Frisby is represented by Jackson attorney Allen Perry. According to the Ledger: 

Perry argued Wednesday that Frisby has been put through "a lot of stuff because of what Peters and DeLaughter did to us."

"We know there was improper communications and he has admitted that fact," Perry said in court. "We have been done wrong and we are asking for justice."

Eaton attorney Reuben Anderson countered that Eaton is the real victim as the victim of the trade secrets theft. 

My initial reaction upon reading the article and Perry's quotes was that Frisby is full of it and the case should not be stayed. Upon further analysis, I changed my mind and agree with Judge Yerger's decision. It is prudent for Judge Yerger to stay the case until more of the Peters-DeLaughter facts are known. But unless more allegations surface that are directly related to this case, Frisby is probably going to have to defend the case on the merits. Otherwise, Judge Yerger probably would have already dismissed the case.