The Many Battles of Dickie Scruggs

Recently, a third front has opened up for Scruggs, this time a civil suit filed by State Farm accusing Mississippi Attorney General Jim Hood of conspiring with Scruggs to threaten the insurer with criminal charges if it did not settle Hurricane Katrina litigation brought by — you guessed it — Scruggs. State Farm noticed the deposition of Scruggs for February 1, which caused his attorney, John Keker, to send a series of e-mails (available below) stating that his client would assert the Fifth Amendment and not show for the deposition. Any criminal defense lawyer would instruct a client to assert the privilege against self-incrimination before trial, and that’s usually the end of the matter. But State Farm has advanced a particularly aggressive argument in a brief (available below) for wanting Scruggs to appear and take the Fifth in response to specific questions: “Even if Mr. Scruggs invokes the Fifth Amendment, his testimony is necessary because that invocation will entitle State Farm to a negative inference against Mr. Scruggs’ principal and co-conspirator, General Hood.”

Can that argument really work? While taking the Fifth can be a ground for inferring that the witness’ testimony would be incriminating, I have never heard of that inference being drawn against another person. While a statement of one conspirator may be used against another, that’s only for what was said during the conspiracy — and in furtherance of it — not at a subsequent deposition. It’s hard to see a court extending the potential inferential value of asserting the self-incrimination privilege beyond the deponent, and I doubt State Farm will be able to make this argument stick. The litigation points up another potential area for a government investigation, the relationship between Scruggs and AG Hood, which could spread quite far and wide in Mississippi. I suspect we have not seen the last set of criminal charges involving Scruggs. (ph)

WHITECOLLAR Crime Blog
2/2/8