The federal law involving conspiracies is very scary for a criminal defendant. Once there’s a bit of proof (well, to a preponderance of the evidence) that a defendant has joined into a conspiracy, everything anyone said while furthering the conspiracy comes into evidence against the conspirators. There is law in the Fifth Circuit (the federal circuit court where Mississippi is located) that allows a hearing (a James hearing) that says: Till the government proves a defendant is in the conspiracy, the government can’t prove co-conspirator statements.
In Zach Scruggs’s case, there’s a ton of co-conspirator statements– Balducci, Backstrom, and Dickie Scruggs on tape– but a pretty thin amount of statements by Zach Scruggs. So now Zach Scruggs has made a motion for a James hearing, saying: Make the government prove pretrial that I was part of the conspiracy before you let in co-conspirator statements. I find this argument compelling. I do not know what the judge will do– my instincts tend in another direction– but this is the most compelling motion yet. I’d do a James hearing if I were deciding this. This one could go either way.