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

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That's a question that was asked in this weekend's Clarion-Ledger article by Jerry Mitchell following the unsealing of Ed Peters' grand jury testimony [available here courtesy of NMC] in Scruggs-gate. 

The photo to the right is of Peters and Bobby DeLaughter. Now we know what they are smiling about.  

The article quotes Oxford lawyer and blogger Tom Freeland (NMC) on this issue and states:

Oxford lawyer Tom Freeland, who has covered the case closely on his website, North Mississippi Commentor, nmisscommentor.com, said Peters' statements "show a lot more about what was going on inside and how corrupt it was."

Elsewhere in the FBI statement, Peters described how he had been approached by both sides in the same lawsuit involving a fatality.

"It's totally unethical," Freeland said. "Peters is on both sides of a transaction, hoping money shakes loose."

What has surprised him is the Scruggs cases weren't pursued by Mississippi prosecutors.

"These are state crimes, too," Freeland said. "Both local and statewide prosecutors have left it alone."

Attorney General Jim Hood sent letters to the local district attorneys in those counties, offering his assistance to them.

District Attorney Ben Creekmore of New Albany said his office met with federal prosecutors and let them know if there was anything that needed to be pursued, he would.

"We felt like any insertion of our office into that whole mess would have gained very little as far as criminal justice is concerned," he said. "It would have been more attention-seeking than justice."

He added that his office has "our hands full with our dockets."

I raised this question in 2010 in this post about a Sid Salter interview of Rankin County District Attorney Michael Guest. Salter raised the question in 2008 in a column that he quotes in his comment responding to my 2010 blog post, and took issue to Johnny Come Lately's on this issue:

District attorneys in multiple venues in Mississippi have already spoken to the fact that since Mississippi's attorney general didn't prosecute public corruption cases against Peters, DeLaughter, Langston, Scruggs, Balducci, Patterson, et al, then they didn't think they had the resources to go after such charges either. If you will recall in the Neshoba County state charges against former Klansmen Edgar Ray Killen and other high profile cases, the local DA got the active support of General Hood's office and his personal intervention in the case.

But Hood took a pass on the judicial bribery cases altogether — all of them.

Where were you in 2008 on this issue, Mr. Thomas? Massaging your "certified civil trial advocate" plaque?

What color is that, Bubba?

Next time you have a question about how I go about the interview process, be sure and weigh in again. I love interaction with "certified civil trial advocates" — being a mere mortal and all.

 My Take:

I still can't get over the Salter personal attack, but that's neither here nor there. 

I find it interesting how this issue has evolved since Salter first raised the question in 2008. Salter seemed to blame Attorney General Jim Hood for there being no State prosecution against Peters. But Jerry Mitchell's 2011 article states that General Hood offered to assist local D.A.'s in prosecutions. And there were at least three D.A. jurisdictions where charges could have been brought. And the feds could have prosecuted too in either the Northern or Southern Districts.

So who's to blame for what many agree is an injustice that Peters was never charged? I never came up with a good answer to this question. I heard a lot of theories; many of which made sense. But I never heard what I thought was a good definitive answer.  

On the issue of Eaton's culpability for Peters' actions in the Eaton v. Frisby case, Tom Freeland makes a good point at NMC:

It strikes me that the question isn’t whether Ed Peters, hired as a lawyer by Eaton, was supposed to influence the judge– after all, isn’t that what lawyers do?  The question is whether Peters (who was hired secretly and off the record, a fact Eaton’s legal pleadings keep omitting) was hired to improperly influence Judge DeLaughter.

 Specifically, I would like to see Eaton's answer to these two questions that I posed in this 2009 post:

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?  

Because let's face it: somebody on the Eaton side of the 'v' knew that they were hiring Peters to improperly influence DeLaughter. Or at a minimum, they figured it out pretty quickly that that's what Peters was doing when he came back reporting to them on what he was doing.

Think about it. In the Scruggs v. Wilson case Scruggs' lawyers knew every move Peters made in communicating with DeLaughter. Eaton v. Frisby was a very complicated trade secrets case. Peters was not Eaton's primary lawyer—not even close. But we are supposed to believe that—completely on his own—Peters got up to speed on the details of the case and then discussed them with DeLaughter? Come on.

If you haven't seen it already, you want to check out this recent NMC post on Eaton v. Frisby. NMC also has Ed Peters' 302 Report here, which details Peters' involvement in the case. In the 302 report, Peters states that he was hired by Eaton lawyer Mike Shauman of the Quarles Brady law firm in Milwaukee and that Jackson lawyer Mike Allred was Eaton's local counsel. It's impossible to read Peter's account of his improper meeting with DeLaughter about the Eaton case without concluding that the Eaton camp knew about the meeting. 

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NMC had a great observation over the weekend on Jerry Mitchell’s Clarion-Ledger stories on Bobby DeLaughter:

The story has no news in it (except possibly the note that DeLaughter has not responded to the state bar’s petition to disbar him) and a lot of comment from Matt Steffey, who observes “Fundamentally Bobby DeLaughter is a good public servant who made some serious criminal mistakes.” The article also states: “Steffey said he foresees DeLaughter working for a law firm as a jury consultant, strategist, arbitrator, mediator or the like.”  I really have the sense that Mitchell is using Steffey as the reliable voice (as in always available to say what Mitchell wants in the story) for his feeling that DeLaughter’s prosecution of Evers should define DeLaughter, and not the pattern of corruption with Ed Peters as a judge.

Meanwhile, I find Steffey’s prediction that DeLaughter will find work as a jury consultant, strategist, arbitrator or mediator to be very naive. Here are several reasons for why I believe that Steffey is wrong:

1. I find it difficult to believe that any law firm will hire DeLaughter for any reason. He is going to be a disbarred pariah in the legal industry when he gets out of jail.
2. DeLaughter is not qualified to be a jury consultant. Professional jury consultants typically have a university education and research experience in fields such as psychology, sociology or behavioral sciences. In addition, in most Mississippi venues a local person who “knows everyone” is more valuable than a professional consultant.
3. I’m not sure what a “strategist” is, but it sounds like practicing law. DeLaughter will not be able to practice law.
4. Arbitration is on the decline. But even if it was not, who would agree to DeLaughter arbitrating their case? Plaintiff lawyers already have to deal with the perception by many of their clients that the legal system is crooked and corporations and other powerful litigants routinely “pay off” someone to get a favorable ruling. I can’t see plaintiff lawyers attempting to convince their clients to let DeLaughter decide their dispute. The same applies to defense lawyers, but for slightly different reasons. Insurance companies and corporations are much less likely than individual plaintiffs to believe that someone in the legal system has been “paid off.” But this does not mean that they blindly trust the system. Also, adjusters and in-house counsel are always thinking about how they can defend a decision within the company. Agreeing to allow DeLaughter to arbitrate a dispute would not be a decision that these individuals would feel comfortable defending to their superiors.
5. DeLaughter can’t be a mediator in a court ordered mediation, since the Mississippi Supreme Court requires court ordered mediators to be members of the Bar. As far as non-court ordered mediators, why would anyone hire DeLaughter? There are more mediators in Mississippi than there are mediations to go around, including many retired judges. I don’t see DeLaughter getting hired to mediate before retired judges such as Judge Charles Pickering or Judge Frank Vollor, not to mention established mediators such as Larry Latham, Bobby Sneed or Anne Veazey. 
6. The legal community is not willing to accept that DeLaughter was a good public servant who made a couple of mistakes. The problem with this is that we do not know if it was a couple of mistakes or a long pattern of corrupt conduct. And even if it was only a couple of mistakes, DeLaughter exercised such poor judgment in making the mistakes that I do not see him ever regaing the trust of the legal community.     

I can see DeLaughter writing books after his release. It’s Never Too Late was a good read and DeLaughter has a lot of interesting life experiences from which to draw.   

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The Saturday Clarion-Ledger was legal themed with three articles covering legal issues. There was this article about Big Law paying would-be associates to perform public interest work instead of starting work at the firm, which doesn't have work for new associates due to the recession. These are great programs for several reasons. Money starved non-profits and public policy firms get free legal work. The new lawyers get valuable experience and exposure to the poor and and mistreated that most would not otherwise obtain. The bad news is that this is a terrible sign for the legal industry in general and current law students in particular. For the legal industry it indicates how little work big firms have. For law students, if Big Law is paying new lawyers to work somewhere else, then the job market must be terrible.   

Another article was this article about this week's Mississippi Court of Appeals decision in which the Court ruled that a railroad did not have standing to challenge an adoption by a former employee who sued the company.

The longest article was this Jerry Mitchell article about the Mississippi Supreme Court reversing Judge DeLaughter's grant of summary judgment for attorneys Gene Tullos and Crymes Pittman. The article contained this statement:

Since that plea, the high court has upheld nearly all of DeLaughter's rulings in criminal and civil cases.

That did not seem right when I read the article. It did not seem right to Tom Freeland either, who wrote this post about it at NMC and commented:

Since the first of August, the Mississippi Supreme Court has published opinions in four cases appealed from rulings by Judge DeLaughter.  All four were reversed; it’s a small sample size, but the court hasn’t upheld a single one of DeLaughter’s rulings since the plea.   His rulings have faired better in the Court of Appeals– three affirmances, two in civil cases (one of the affirmances was a pro se criminal appeal).  Going back to when the cloud first formed over his head in December of 2007, there were two reversals and six affirmances by the Supreme Court, which is more what you’d expect.

I’m having trouble counting four reversals, no affirmances as “upholding nearly all of DeLaughter’s rulings…” since the plea.

Agreed. I try to read the Court's hand-down decisions every Thursday. My general impression, without going back and doing the research, was that Judge DeLaughter was usually affirmed before the judicial bribery scandal and has been usually reversed since the scandal. Perhaps that is just a coincidence. But perhaps it is not. Overnight, DeLaughter went from a very respected judge to a judge whose every ruling is suspect. It's only natural for the Court to take a harder look at DeLaughter's decisions.

As for the underlying Tullos case, it should be kept in mind that the Court's reversal was on procedural grounds and did not address the merits of the case. Both Tullos and Pittman commented for the Clarion-Ledger article and appear to have solid defenses. I think it was smart for Tullos and Pittman to comment to Mitchell to get their side of the story out to the public. I do not understand why more people who are parties in high profile cases do not get their story into to public domain.