To borrow a metaphor I used in a recent court brief, the arguments in Zach’s motion and reply brief do not appear to be merely grasping at straws, they seem to be imagining straws to grasp at.
Take a look at another paragraph, produced with the subheading used in the reply brief:
2. The Government’s alleged “clarification” of Balducci’s false testimony did not cure the lie
Immediately after Balducci testified that he told Backstrom and Zach Scruggs, “you’re paying for it,” the Government asked, “Is it possible that you might have used the term sweet potatoes again referencing the amount of money involved?” Balducci responds, “I think I did.” Resp. Br. at 3 (citing grand jury testimony). But this testimony merely seems to indicate that Balducci used the term “sweet potatoes” again when he was making the “we’re paying for it” comment. It does not plausibly “clarify” that Balducci never referenced in Zach Scruggs’s presence a payment of $10,000 to the judge at the judge’s request—a claim that Balducci prominently and falsely made to the grand jury not once, but twice, without any correction by the Government.
The Government can only mount this tepid defense of its grand jury questioning in the first place because the Court and all the parties now have transcripts of the November 1, 2007, transcript, and can follow along with the Government’s explanation of what it was allegedly trying to do. But a grand juror hearing Balducci’s false testimony would not—indeed, could not—understand that Balducci had earlier made the “sweet potatoes” reference only one time, and did so instead of (in his own mind, apparently), not in addition to, his allegedly specific reference to the $10,000. The Government knows that given Balducci’s twice-repeated and serious misstatement, it should have asked him to clarify that while in Zach Scruggs’s presence, he never referenced a payment of anything—whether of money or of something else of value, whether of $10,000 or any other amount—to Judge Lackey.
Finally, the Government never even attempted to correct Balducci’s false testimony that he told Zach Scruggs that Judge Lackey wanted something (whether money, sweet potatoes, or anything else) in exchange for and in order to enter his “amended” order. It never corrected Agent Delaney’s false testimony that Balducci told Zach Scruggs the judge had complained about Balducci owing him $10,000 under an “agreement.” These misstatements go to the core of what the Government now admits is the only evidence the grand jury heard regarding Zach Scruggs’s alleged knowledge and agreement to bribe Judge Lackey.
The sophistry of these arguments is just a little more than I can stomach. Consider this: in the November 1 transcript, a copy of which is at the end of this post, you can see for yourself on pages 19-30 that Zach Scruggs is an integral part of an extended conversation about a draft order from Judge Lackey. Not once does he question why he is in possession of such an order, nor does he apparently see anything wrong with it. In fact, incredibly, on page 28 he takes time during the discussion to denounce opposing counsel as unethical:
Well, shit you know, this is the proper thing to do, uh, uh, it, it’s just uh, you know, (UI) it’s just so unprofessional, uh, what these guys have been up to, and unethical. Attaching all these uh, things that they’re ciphering through and God knows what GRADY’s talkin’ to STATE FARM lawyers about. Hey, make this, you know, you got so and so, make that, buy that case we can … get all of it.
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