In the courtroom on the Scruggs deposition hearing (by NMC)
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Here’s a report from the courtroom on the hearing about a Scruggs deposition:
The lawyer for State Farm said (twice, in slightly different terms but meaning the same thing) that in a telephonic hearing in the last week, the lawyer for the attorney general said: “If they are successful in getting the TRO dissolved, they plan in very short order to proceed with a criminal investigation of State Farm and perhaps proceed to prosecution.” That seems to me the news from the hearing, second only to the judge’s ruling.
Watching the lawyering the smartest thing that Barney Robinson for State Farm did was begin his argument with an inarguable question that (if accepted as the issue) decides the motion for his client: “Does Mr. Scruggs have to obey a valid subpoena and appear for a trial deposition that has already been authorized by a court order in the underlying suit.” Well, yes, he has to do that. On the other hand, Robinson stepped in it slightly by rephrasing a question Judge Mills had asked Keker’s lawyer, and rephrasing it so one-sidedly that Judge Mills said (with reason) “I don’t believe I asked that question.”LeBlanc for Scruggs made an argument very precisely that, while it didn’t help his client today, ought to be picked up by Lawton Hester (for Jim Hood) next week. The attorney general is arguing that the federal courts do not enjoin state court criminal proceedings, a concept called Younger abstention. State Farm has responded that there are two exceptions to that: When the state and the investigatee have an agreement for no further prosecution, or when there is bad faith on the part of the prosecution. LeBlanc argued that “bad faith” in this context has a very precise meaning– that it requires showing that the prosecution lacks probable cause. Basically, LeBlanc was arguing that Scruggs couldn’t know either about whether there was an agreement or the probable cause issue. I’d expect to see the bad faith argument next week, along with the argument that the A.G. is already making– that there is no deal not to prosecute.
Hester for the A.G. said he was caught in the middle and didn’t really have a position, but that there just wasn’t enough time for the deposition.
February 1, 2008 at 6:41 pm
Thanks, NMC. I was just about to ask on the thread below who did the arguments for each side.
February 1, 2008 at 9:28 pm
There is no legal basis for the U.S. government to usurp the authority of the State of Mississippi to prosecute criminals, bad faith or prior “agreement” nothwithstanding. The U. S. District Court does not have jurisdiction in this case. The only recourse for State Farm is to get indicted (in Jackson County or by the State Grand Jury), move for an interlocutory appeal to the Mississippi Supreme Court and/or proceed to trial and then appeal to the Mississippi Supreme Court and, if unsuccessful, appeal directly to the United States Supreme Court, if cert. is granted. I cannot see for the life of me where the United States District Court can involve itself in the matter.
February 1, 2008 at 11:07 pm
That sounds way reasonable to me, too, UMATTY. It seems to me that SF has a heavy burden to overcome, but I don’t know because IANAL.
February 2, 2008 at 1:09 am
UMATTY … I agree. It will blow my mind if the court orders the AG to stop a state investigation.
February 2, 2008 at 1:28 am
1) it is very rare for a state criminal investigation to be enjoined. That is the whole idea behind Younger abstention– that’s the idea that federal courts don’t just enjoin state criminal proceedings.
On the other hand, if Judge Bramlette decides either that Hood has made an agreement to stop pursuing State Farm, or is pursuing State Farm in bad faith, then he can stop the prosecution. And I don’t see that as bad.
February 2, 2008 at 1:33 am
sorry I didn’t do (2) instead of “on the other hand”
Given that SF says “they agreed to stop”, I’m surprised it would blow your mind, Gearhart.
I’ll be interested in hearing the proof. My instincts are to assume the process works here.
This is a lawyer’s faith in process. It will give me a good opportunity to explain the whole point of abstention. And the point is this: We have these rules that pretty tightly restrict when a federal court can enjoin a state prosecution.
To put it colloquially, only when the state prosecution is very, obviously fucked up.
So we’re going to accept that the federal system rules are clear enough and restricted enough that we can believe the system works.
I hope. If not, we’re all screwed.
February 2, 2008 at 2:39 am
Speaking of abstention NMC, is that the f- word I see? lmao and rolling on the floor
Not that I’m not prone to use the word myself or offended to seeing it in print - it was just so unexpected aside from the fact that it’s the first time I’ve seen such a scholarly use of the word.
still lmao
February 2, 2008 at 4:49 am
nowdy, now don’t you be thinking of changing your handle, ’cause there’s already somebody out on the blogs who comments as ROTFLMAO — d’oh!
February 2, 2008 at 8:53 am
I’ve been thinking the same thing UMATTY and I have never heard of a federal court enjoining a state criminal investigation. How does the federal court even determine if it is the same, or even a related investigation?
I agree that there shouldn’t even be any standing for State Farm to move for an injunction, and relief, with any court, federal or state, until after they have been actually charged with a crime.
February 2, 2008 at 9:53 am
I think the fact that the state’s AG was the one who intertwined the criminal prosecution with settlement of a civil tort case IN FEDERAL COURT, may,….just may….. provide the basis for the federal court to retain jurisdiction, despite the “Younger” abstention —call it the “James gang” extension of jurisdiction by the federal court to enforce settlement agreements in its court. Yes, the federal court rejected the settlement plan most likely due to concerns that it did not adequately protect the policyholders as much as it lined the pockets of the lawyers and the insurer. But, this apparently was a separate “side deal” agreed to by our meddling AG, who should not have been involved at all in this civil Katrine suit. Oh what a tangled web we weave………….
February 2, 2008 at 11:35 am
Whether the state investigation gets the green light to proceed or not, I’m bettin’ the damage to Hood from the Scruggs depo is going to be substantial.
February 2, 2008 at 12:03 pm
BF, I thought if Bramlette rules for Hood, the deposition would stay under seal? Suppose he pleads the fifth?
February 2, 2008 at 2:13 pm
And, that is an importat caveat, friend. If Hood had had enough since to stay out of the civil suits, and to resist the temptation to tie them to the criminal investigation, this would probably be a slam dunk for non-intervention.
I know it has been said, but Hood is a horrible AG.
February 2, 2008 at 6:30 pm
Bellesouth, it is just about certain that Scruggs will invoke his 5th amendment privilege. So I think the only damage to hood from the deposition will come from the implications of his close associate taking the 5th.