Fancy Word for Court Corruption: "Earwigging"

Judicial panel discusses ethics in law at UM
The Oxford Eagle by Alyssa Schnugg - April 23, 2008

A panel of judges and lawyers told University of Mississippi law students Tuesday that "earwigging" is not OK and used the recent judicial bribery case involving Richard "Dickie" Scruggs as an example. Law School ethics assistant professor Ben Cooper pointed out that during a recent hearing where Scruggs pleaded guilty to conspiring to corruptly influence Circuit Court Judge Henry Lackey for a favorable ruling, Scruggs said he had no intentions of bribing Lackey in the beginning and the whole thing started out just to earwig the judge.

Earwigging is when a lawyer or someone involved in a case talks to the judge outside of the courtroom about the facts in the case, usually with the intention of influencing the judge. "The message seemed to be that while bribery was bad, a little earwigging isn't as bad," Cooper said of the Scruggs case. "Earwigging is generally forbidden." The panel consisted of Lackey, Cooper, Chief U.S. District Court Judge Michael Mills, local attorney Tom Freeland and assistant law profession Mercer Bullard.

"You can talk to a judge about football games, 'American Idol' or even your love life," Cooper said. "But when it comes to a case before the judge, that is off limits ... It comes down to fundamental issues of due process and fairness. We want judges deciding cases based on law ... we want fair process." The ethics panel was set up in response to the ethical and moral issues brought to light during the Scruggs case, Bullard said.

Scruggs, his son, Zach Scruggs, law partner Sidney Backstrom, former New Albany attorney Timothy Balducci and former Mississippi state auditor Steven Patterson were indicted in November for attempting to bribe Lackey with $40,000 for a favorable ruling in a lawsuit against Scruggs. All five men have pleaded guilty and await sentencing. The younger Scruggs pleaded guilty to a reduced charge of misprision of a felony — which means he had knowledge of a felony taking place and failed to report it.

Freeland, who has been following the Scruggs case extensively on the Folo blog Web site, www.folo.us, brought up several cases where earwigging resulted in reversals by the Supreme Court. "It's destruction of the honesty of the legal system," Freeland said. Freeland also said the Mississippi Bar needs to be more proactive is pursuing earwigging complaints, and that there should be a stronger duty of attorneys to report such actions. "The only way out is to police ourselves," Freeland said. Lackey, who helped the government in its case against Scruggs, talked about how being a judge in a rural area can make it harder to avoid talking to people involved in the cases he hears. "Your circle of acquaintances gets larger," he said. "But your circle of friends becomes smaller." Lackey said early in his career as a judge, family and friends would call him "Judge" instead of Henry.

"I would meet the 'can-a-mans' at the Post Office — those are the ones who ask, 'Can a man do this?' or 'Can a man do that?'" Lackey said. "It's indicative to a small town practice. It would be hard to tell them I can't discuss the case with them." Lackey told the audience of about 100 lawyers, judges and law students that they all had the opportunity to "do good." "When a client comes in your door, if the first thing you think about is how much money you will make off this guy or how much good can I do for him, that's the difference between lawyers," he said. "Someone once asked me what I'd want as my epitaph. I said, 'I guess I'd want it to say I was 'fair' — I don't mean mediocre now — but that I treated people fairly." Mills said despite recent events, earwigging and attempts to corruptly influence judges is not as common as "you all have been led to believe lately." He also spoke of another type of earwigging — blogging.

"I know if something is said about someone local, and if I don't read it, my clerk will make sure I see it," Mills said. "It's going to get copied and put on a judge's desk. And I think people know that and I believe some write comments to influence the judges. I believe this is something the Bar and judges will have to address one day. I've started instructing jurors to not go home and Google anyone's name associated with the case." During the question and answer part of the presentation, some students brought up the ethical issues in judges being able to know who donated funds to their campaign. Lackey agreed it's difficult to not be influenced. Mills said he had no problem with knowing who gave him money. "I have a harder time getting over knowing who gave to the other guy," Mills joked.