The Fall of the House of Zeus (47 page)

In the hothouse climate of the Scruggs case, some of those involved in the investigation wondered about the objectivity of Greenlee, a Sigma Nu. Their qualms doubled when Quaka, another Sigma Nu, was chosen to accompany him to see Lott.

At the meeting with Lott, who was accompanied by a lawyer, Dawson felt he had to take charge. He had doubts about Lott’s innocence. Yet Greenlee seemed deferential, and Quaka had no hard questions. Dawson pressed the former senator about the impact of a call to a judge who might hope to be elevated to the federal bench. Lott insisted that his discussion with Judge DeLaughter had been nothing more than a routine follow-up to Scruggs’s recommendation about an open federal judgeship. Lott told the prosecutors that he did not know Scruggs had a case pending before DeLaughter.

He reminded his visitors that DeLaughter never got the nomination. Lott was also in a position to say that his call on March 29, 2006, came after DeLaughter had already made one decision favorable to Scruggs in February, and the process to fill the judgeship with another candidate was well under way before DeLaughter’s final decree.

Dawson remained dubious about Lott’s explanation. A few months later, the prosecutors stopped short of a subpoena, but asked Lott to make available his records concerning his reviews of candidates for federal judicial positions.

After the group finished with Lott, Greenlee and Quaka went back to their hotel. Dawson headed to the suburbs of northern Virginia, where his daughter lived. As he was riding across the Fourteenth Street bridge over the Potomac he got a call from his associate in Oxford, Bob Norman. Scruggs’s lawyer John Keker had just telephoned and said he wanted to talk.

    Keker’s overture set in a motion a series of meetings between the prosecutors and defense attorneys in which the two sides privately probed each other for strengths and weaknesses. Because the prosecutors were required by law to turn over evidence, including the wiretaps and the videotapes of Balducci’s conversations with Judge Lackey, the defense attorneys saw some of the hard facts that confronted them.

It became something of a grim poker game, in which the prosecutors had aces and royal face cards showing. There were bluffs and bravado
in the talks. If the defendants wished to avoid a trial, the prosecutors suggested prison sentences—as much as ten years for Scruggs—they might be willing to offer in exchange for guilty pleas. Both sides realized that a trial conviction could result in much harsher prison terms.

The prosecutors figured that Dick Scruggs would take the gamble. He had the reputation of a risk-taker, a fighter pilot, a man always skating on the edge. But Langston, who was now cooperating with the prosecutors, confided to them his belief that Scruggs, his former client, would plead guilty in the end.

After the defense attorneys reported to their clients the gist of their talks with the U.S. Attorney’s Office, all early proposals by the prosecutors were rejected.

    
In the councils of the Scruggs defense team, it was time to regroup and rebuild after Langston’s abrupt departure. Keker took complete control of Dick Scruggs’s case.

Sid Backstrom would be represented by Rhea Tannehill, a friend he trusted, but they would rely on the more experienced criminal defense lawyer from Jackson, Frank Trapp.

Zach felt comfortable with the man close to his family, Mike Moore, but developments in the case prompted him to retain others. During the exploratory talks, prosecutors hinted they might drop charges against Zach if persuasive evidence could be produced that he had not been in Backstrom’s office during a critical point in Backstrom’s conversation with Balducci on November 1—the day Balducci first wore a body wire.

Zach hired Todd Graves, a former U.S. attorney from Missouri, to handle negotiations with the federal prosecutors. Graves had been recently forced out of office during a purge of U.S. attorneys by the Bush administration, one of ten officials believed to have been targeted by the White House and Attorney General Alberto Gonzales for failing to carry out prosecutions sought by Republican interests. Charges of political prosecutions were dominating headlines, and a congressional investigation led by Democrats was under way. With U.S. attorneys’ offices across the nation, including the one in Oxford, on the defensive, Graves was considered an ideal choice to assist Zach. Graves was joined by his partner Nathan Garrett. In addition, Zach retained another Missouri lawyer, Edward “Chip” Robertson, a former state supreme court justice who had been involved in some of Scruggs’s litigation against State Farm.

·    ·    ·

    
Steve Patterson pleaded guilty a week after Langston. His capitulation came as no surprise. He had been implicated in telephone conversations recorded by the FBI and had been floundering in the days since his indictment. Unwilling to pay the retainer sought by his first attorney, Patterson turned to Ron Michael, a friend who had once worked with him at Langston’s firm. For good measure, he also called on another lawyer with a familiar name, Hiram Eastland, a cousin of the late senator. But the name Eastland no longer carried much weight outside the organization the old senator once directed.

Appearing before U.S. District Judge Neal Biggers the week after Langston had been reduced to tears in the same building, Patterson could not resist a bit of theatrics. As he stood before Biggers, the judge said, “Mr. Patterson, I thought I was having a Kafkaesque moment this morning when I read the paper: you’d already entered a plea of guilty. You know, that’s like that novel by Franz Kafka where this guy was charged, he was convicted, and he was executed, and he never went before the court. It was like a surreal thing. But you haven’t been before the court on a guilty plea, have you?”

“No, sir,” Patterson deadpanned. “The press stays ahead of me all the time.”

He admitted guilt to one count of conspiring to bribe Judge Lackey. Patterson said he had never set out to corrupt a judge, implying that he had been drawn into the crime by others. “I stand here a blessed man,” he said. “My family, church and community have stood by me.” To complete the deal in which all other criminal charges against him were swept away, Patterson promised to cooperate with the prosecutors and to submit to a polygraph to verify that he was telling the truth.

Patterson offered no defense in the Lackey bribery. Though he had been involved in hiring Peters in the second case, Patterson subsequently ridiculed the decision to ask Senator Lott to contact DeLaughter.
In testimony Patterson gave more than a year later in a deposition, he said he learned of Lott’s action in a telephone call from Langston. “I shall never forget that call because I thought that was the most insane thing I had ever heard in my entire life,” Patterson said. “That a United States senator whose brother-in-law was in a case of this magnitude would actually call the judge and ask him—I thought that was just going way over the line. I thought it was politically stupid, thought it made no sense.”

With Patterson’s plea, Scruggs recognized that the prosecutors now
had four witnesses—Patterson, Langston, Balducci, and Peters—prepared to testify that he had been involved in an attempt to sway Judge DeLaughter in the Wilson case. It not only opened Scruggs to a second charge in Scruggs II, but it also gave the prosecutors a powerful weapon: Rule 404(b).

    Keker, who commanded a fee of $900 an hour, found himself facing a difficult task, but it was hardly the first time he had been in that position.
In the thirty years since he and a partner founded the law firm of Keker and Van Nest in San Francisco, the office had swelled to a force of fifty attorneys, and Keker had won a reputation as one of the leading criminal defense lawyers on the West Coast.

He came from a city with a long history of colorful advocates. Melvin Belli, the first to claim the title of King of Torts, had represented an impressive cast of characters in his heyday; his clients ranged from Jack Ruby and Errol Flynn to the Rolling Stones. During the cold war, Vincent Hallinan, another San Francisco lawyer, was known as a passionate defender of leftist causes, an unpopular job in that period. Keker helped win an acquittal for Hallinan’s son Patrick—a criminal defense lawyer himself—in a celebrated case in 1996 involving a questionable drug charge brought by the federal government. Defending Hallinan, Keker lashed out at a U.S. attorney as “a chicken-shit” and complained about “fanatic prosecutors who believe that people who represent people accused of crime are the same as the people who are accused of crime.”

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.