The Fall of the House of Zeus (49 page)

    Keker asked Judge Biggers for permission to call Judge Lackey as a witness. He said Lackey “can fill in how this crime was created.” In remarks earlier that morning, Keker talked of how Lackey had been “pushing, pushing, pushing” for six months to insert Scruggs’s name into his dialogues with Balducci.

“I don’t mean to be harsh about this,” Keker said, “but at that point, it’s almost extortion.”

Keker felt that Lackey’s credibility would not hold up under strong questioning. He believed that Lackey, acting out of his hatred of Scruggs, had prodded and goaded his younger friend, Balducci, into the crime. Keker wanted to force Lackey to explain fully his role in the case. It might be possible to transform Lackey’s image from that of a heroic judge defending the principles of justice to that of a contemporary Iago.

Judge Biggers was unwilling to call Lackey to the stand. He had already heard enough of the defense’s claim that Lackey, acting as a government agent, had created a crime by asking for money. The defense had failed, Biggers ruled, to demonstrate “outrageous conduct” by the government.

“The law required that in order for such a motion to be successful, the defendants must not have participated in any active way in the carrying out of the crime,” Biggers said. “All the evidence to this point is that they did. So it would seem to the court it would be futile to bring in these other witnesses to testify about what they did and what the defendants did because the defendants are unable, will be unable, to show that they were merely passive participants in this crime.”

Scruggs and the others at the defense table could not believe what they were hearing. In their interpretation of Judge Biggers’s remarks, he had found them guilty before their trial.

Keker made a final attempt to argue that the defendants were drawn into the crime by government action and “extortion circumstances.”

But Judge Biggers cited precedent: “A defendant claiming outrageous conduct bears an extremely high burden of proof.”

Additional witnesses, he said, “would not wipe out the clear evidence that’s before the court now that there was an active participation of the other defendants in the carrying out of this crime.”

Three hours after the hearing opened, the “outrageous conduct” motion was denied, and the defense was left with only its effort to suppress evidence obtained through wiretaps and search warrants authorized by Judge Biggers.

That, too, failed.

D
isheartened by the setbacks, the Scruggs defense team explored another avenue. They would stage a mini–mock trial in early March before a group of independent “jurors,” to weigh their chances in the real trial set to begin in less than a month.

It was an elaborate production, arranged by a consultant specializing in pretrial focus groups, and carried out in deepest secrecy. The setting bore no resemblance to a federal courtroom. Sam’s Town Hotel and Casino, overlooking the Red River in Shreveport, Louisiana, was chosen as the site, and dozens of residents of the area who knew nothing of the case were hired to serve on four separate jury panels. Scruggs agreed to underwrite the costs—which were considerable.

On the night before the formal arguments would take place, eight members of the team, along with one defendant, Sid Backstrom, flew into Shreveport to begin planning for the war game. Neither Dick nor Zach Scruggs attended.

The format required a reversal of roles for some of the group. Mike Moore, calling on his courtroom experience as a prosecutor, would present the government’s case. The defendants would be represented by other attorneys on the team. Chip Robertson, one of Zach’s lawyers, was given the task of delivering the government’s rebuttal to the defense.

To begin the long day of deliberations, the “jurors” and the attorneys
gathered in a large ballroom of the hotel. In lieu of witnesses, the “trial” consisted of five presentations—one by Moore, three on behalf of each of the defendants, and a closing argument by Robertson. At the end of each performance, the “jurors” adjourned to four smaller rooms to consider the merits of what they had just heard. Each time, they were asked to fill out questionnaires and to indicate whether they were leaning for conviction or acquittal.

In spite of his close friendship with the Scruggs family, Moore gave a fervent argument for conviction. He cited the evidence that would be introduced in the actual trial and did his best to damn the defendants. “This is not the first time they’ve done this,” Moore thundered, referring to the second case involving Judge DeLaughter.

The defense lawyers followed, using a line of attack just rejected by Judge Biggers: that the government had created a crime. They also accused one of the witnesses, Balducci, of perjury in his grand jury testimony and implied that another principal witness, Judge Lackey, had had ulterior motives in initiating the investigation.

The concept of the exercise was to evaluate the strength of the prosecution’s case and to give the defendants a realistic view of the risk they were taking if they actually went to trial. Robertson, acting as a prosecutor, was given the final word, and he hit hard with the 404(b) evidence that Scruggs had been involved in a second bribery.

At the end of the day, the panel members were asked to sit in judgment. While the “jurors” debated, video cameras in each room fed their discussion to four different monitors in an adjacent room. The lawyers, wearing headsets, were able to follow the various deliberations. In some talks, participants felt the defendants should be held to a higher standard because they were lawyers. On the other hand, there were “jurors” who expressed doubts concerning the government’s case and speculated about the extent of entrapment. But ultimately, the same conclusion was being reached in every room: the defense had been overwhelmed by the introduction of the second case and the suggestion that Scruggs had a history of bribing judges.

All four of the panels voted to convict both Dick Scruggs and Sid Backstrom. Zach escaped with a couple of hung juries. There were no acquittals.

    
Faced with the unhappy results from Shreveport and a federal judge they believed hostile, the Scruggs group grew pessimistic as their options ran out.

If convicted in the fast-approaching trial, the defendants would more than likely spend many years in prison. Scruggs, approaching his sixty-second birthday, would be an elderly man if he survived to see freedom again. Backstrom’s small children would be grown before he was released, and no one was quite sure what might happen to the fine new home under construction for his family. For thirty-three-year-old Zach, the idea of any time in prison was unthinkable.

Alone among the three members of the Scruggs firm under indictment, Zach had begun to feel isolated by events. With his knowledge of the evidence in the government’s possession, he realized that his father and Backstrom were vulnerable. But he felt strongly that he would be exonerated by the lack of any explicit demonstration of his guilt. He began to wonder if his father might use him as a bargaining chip, offering a guilty plea in exchange for dropping charges against his son.

If the defendants chose to plead guilty in order to be ensured lighter sentences, the deadline set by Judge Biggers to enter pleas in the case was even more imminent: only a week away.

Publicly, the defendants gave every indication that the case would be fought to trial. But inside the strategy sessions at the Scruggs Law Firm, emotions ran from anxiety and anger to resignation that guilty pleas might become necessary.

With access to much of the government’s evidence, the defendants were able to anticipate the testimony against them. Scruggs listened to disks containing nearly one hundred recordings of conversations involving Balducci, Patterson, Lackey, and sometimes himself. Much of it was irrelevant to the case or too elliptical to be used against him. But one recording was damaging: his November 1 conversation with Tim Balducci regarding an additional payment to Judge Lackey. Scruggs could hear himself say, “I’ll take care of it.” He thought to himself: That’s what put the noose around my neck.

As they reviewed the potential witnesses with their lawyers, the defendants felt contempt for their onetime associates who had turned on them: Tim Balducci, Joey Langston, and, to a lesser extent, Steve Patterson. But they reserved their greatest resentment for a man they did not know, Judge Lackey. They felt him duplicitous, conniving, and a philosophical partner of Grady Tollison in the effort to bring them down. To lighten the atmosphere, some members of the defense team would break into a riff from the old Johnny Rivers song “Secret Agent Man,” to refer sarcastically to the judge.

Scruggs had hired a private detective to look into the backgrounds
of various characters involved in the case. After the investigator began making inquiries into some of Lackey’s private business dealings in Calhoun City, the judge was said to be incensed when he learned of it. The defendants knew Lackey’s position would only harden.

In moments when they resorted to mordant humor, members of the defense team joked that they might better address their remarks to Biggers’s life-size portrait, which hung in the courtroom, rather than to the judge himself, in order to get a more sympathetic hearing. The oil painting, a fine likeness by the Oxford portraitist Jason Bouldin, became a subject of their derision, for special temperature controls had been mounted on the courtroom wall to prevent the canvas from rotting.

Scruggs felt that Biggers had turned his courtroom into a modern-day Star Chamber, where a defendant had no rights. At a trial, he said facetiously, he expected to have a black hood placed over his head, and if he lost, he might be sentenced to twenty-five years in prison. Paul Minor’s conviction in a trial where another federal judge had made a number of adverse rulings played into Scruggs’s thinking. So did Minor’s prison term of eleven years.

Scruggs was tormented by his son’s predicament and tearfully talked about it with Chip Robertson, who had worked with the elder Scruggs in earlier litigation and now helped represent Zach. “I don’t care what happens to me,” he told Robertson. “I want to help my boy. He’s only involved in this because of me—and it’s killing me.”

Scruggs’s sleep deteriorated, and he fell back increasingly on the barbituates for relief. His life had gone into a sickening spiral, from the high of his tobacco triumph, when he had been hailed as a champion of the little man, to the lowly feeling that prison lay in his future. At home, he tried to maintain a stout appearance of innocence. Diane remained convinced that Dick would take the fight to trial. But in his deepest and most private thoughts—and in his counsel with John Keker—he knew that events had closed in on him.

Less than four months after the nightmare day in which he was arrested, was arraigned in a magistrate’s courtroom, and announced himself “not guilty,” Scruggs decided, as he later told a friend, “I had to stand there before Biggers and take an ass-whipping.”

    
Scruggs’s decision set off a scramble on both sides.

Keker asked for a meeting with the prosecutors on Wednesday after returning from Shreveport. Acting alone, he initiated the first round
of serious plea bargaining. The discussion was general and conducted in utter secrecy in a first-floor conference room at the U.S. Attorney’s Building, which is guarded and closed to unauthorized visitors. After talking with Keker, the three prosecutors—Dawson, Norman, and David Sanders—were left with the impression that Scruggs was willing to plead guilty to one count of conspiracy in the bribery case involving Judge Lackey and accept a five-year sentence. On the second case dealing with Judge DeLaughter, the prosecutors understood, Scruggs would not plead guilty unless a sentence for that offense ran concurrent with the first case; that is, Scruggs would face a total of no more than five years in prison.

The prosecutors were unwilling to agree to the proposal and renewed a demand for at least a seven-year sentence for Scruggs. They also expressed interest in a “global settlement” in which all of the defendants pleaded guilty in the Lackey case. Although Scruggs faced potential charges in the DeLaughter affair, neither Zach nor Sid Backstrom was implicated in the second case.

Keker came back with what became known as the “5-3-1” suggestion: five years for Scruggs, three for Backstrom, and one for Zach, in exchange for their guilty pleas in the Lackey case.

“What about Scruggs Two?” Dawson asked of the second case.

“We’ll take our chances on that,” Keker said.

Dawson said he had no authority to seal such an arrangement and asked for time to talk with his boss, Jim Greenlee, who was in Washington. Dawson thought to himself: This is a case a prosecutor lives to bring to trial, an arena with spotlights and headlines. He would never again have the opportunity to challenge a defendant so famous and high powered, to move from the shadows of an assistant prosecutor to the forefront of one of the biggest cases in memory. But a guilty plea would ensure a victory, and if Dick Scruggs was willing to stand up and admit his guilt, Dawson could say that justice had been served. When he reached Greenlee by telephone, he explained that the proposal was not entirely satisfactory. “But it doesn’t give me heartburn, either,” he added. “These things never please everybody. The big thing is that everybody will be convicted of a felony, and they’ll be disbarred forever.”

Greenlee approved of the 5-3-1 deal. “But what about the second case?” he asked.

“We’ll go ahead with that one,” said Dawson, who told Greenlee he was surprised Scruggs had left himself open to further charges in the DeLaughter case.

Dawson called Keker to tell him he had a deal. He asked Keker, who represented only Scruggs, if he could be assured that the other two defendants would accept the agreement. Backstrom was believed ready to surrender, but Zach had shown no indication that he would plead guilty. Keker said it might be a hard sell with Zach, but he felt he would do it.

    
After the Shreveport experience, Backstrom was leaning toward a guilty plea. He sensed that he had been doomed by a recorded November 13 telephone call with Balducci in which his friend talked explicitly about the bribe to Judge Lackey.