NMC – Judge Davidson denies DeLaughter motions
Early in his opinion denying DeLaughter’s motion to dismiss the mail fraud count, Judge Davidson strongly signals how much he’s not buying arguments that diminish the seriousness of what’s at issue:
DeLaughter, in the introduction to his motion, diminishes the charges against him. According to DeLaughter, the Government seeks through this prosecution to turn a judge’s ex parte communications into a federal crime, and if what DeLaughter allegedly did is a federal crime, then any judge who receives ex parte communication from any attorney in [a] case before him and then receives an endorsement from that attorney subjects himself to federal prosecution. The Indictment, however, alleges much more than a simple ex parte communication. In fact, it alleges that DeLaughter afforded the Scruggs’ legal team secret access to the court, along with the court’s proposed opinions, and therefore, received an unfair advantage in the Wilson v. Scruggs litigation.
Judge Davidson then goes on to reject the specific arguments raised– that there was not a state law violation, that the mailings were insufficient because they were required– and leaves the mail fraud count in place.
The issue here is how the court deals with admission of statements coconspirators made; the Government must first show that there is a conspiracy and that Judge DeLaughter was a part of it before the statements come in. The Fifth Circuit has held that a court can carry this issue with the case, allowing the statements to come in provisionsally and then rule at the end of the Government’s case whether the predicate was proven. If the court rules that the conspiracy hadn’t been proven, the court would rule them out, and instruct the jury to disregard them.
As if a jury would be able to do that. But then, there’s this practical matter that may be in the back of Judge Davidson’s mind: If the Government doesn’t prove the conspiracy, there’s also going to be some pretty serious prospects for a directed verdict.
Judge DeLaughter argued that the percularities of Judge DeLaughter’s role and the difficulties the Government was going to have connecting the dots required a pretrial hearing in this case. Judge Davidson states pretty firmly that the motion would require two trials and he doesn’t intend to do that. He’s going to follow the default procedure of carrying the issue with the trial.
The opinion is here.