If there are recorded telephone conversations on top of videotapes of the meetings between Balducci and the state judge, something that has already been disclosed, then the defense will have to begin by attacking any ambiguity in those conversations. That would be one component of what I suspect will be a two-prong legal strategy: first, throw Balducci under the bus as someone who lied to Scruggs and the others to carry out his own (delusional) bribery scheme, and then argue that someone as smart as Scruggs would never concoct a “boneheaded bribery scam” with the scheming Balducci.
The first step is to portray — or demonize — Balducci as a misguided sycophant who wanted to curry favor with Scruggs in order to jump on his gravy train. Then, assert that Balducci lied to Scruggs and the others in order to win a favorable ruling in the attorney’s fee dispute — a variant on the Richard Scrushy Defense in the HealthSouth prosecution. This is a delicate maneuver, of course, because it requires Scruggs and the others to come across as gullible enough to fall for the entreaties of Balducci.
The second phase is to castigate the bribery scheme described by the government as a product of Balducci’s imagination. The fact that there was any documentation for the payments shows that Scruggs and the others thought Balducci was on the up-and-up because who in their right mind creates a paper trail for a bribe? This is the flip-side of the gullibility argument, that if this really was a bribery scheme then Scruggs would have done a better job of hiding it. That argument is dangerous, however, because it risks having the jury conclude that Scruggs was really using Balducci as a cut-out to hide the scheme, and the “boneheaded” paperwork was part of a grand plan to hang him out to dry if necessary.
White Collar Crime Blog