Famed tort lawyer Richard F. “Dickie” Scruggs finally got some good news. Though special prosecutors in Birmingham, Ala., planned to appeal a federal judge’s February dismissal of their criminal contempt charge against Scruggs, they inadvertently let the deadline pass for doing so.
Last week a federal judge denied the special prosecutors’ request for a retroactive extension of time in which to file their appeal. U.S. District Judge Roger Vinson concluded that their slip-up did not constitute the sort of “excusable neglect” for which such allowances could be made.
Amid Scruggs’ many legal problems at the moment – including his federal guilty plea last month to conspiring to bribe one Mississippi state judge and his ongoing federal scrutiny in connection with similar accusations involving a second one – the criminal contempt charge has understandably taken a backseat in the public eye. Nevertheless, the episode that prompted the charge is of interest for the light it sheds both on Scruggs’ push-the-envelope approach to litigation and his snug relationship with Mississippi Attorney General Jim Hood. (For background, see my recent feature story about Scruggs’ assault on State Farm Insurance Company.)
The criminal contempt charge had arisen from Scruggs’ circumvention of a federal court order issued in December 2006 by U.S. District Judge William Acker, Jr., of Birmingham. In that case, a firm called E.A. Renfroe & Company, which contracts out claims adjusters to major insurance carriers, had sued two of its former employees, Cori and Kerri Rigsbys, who had become “insiders” working with Scruggs on his suits against insurers over their post-Hurricane Katrina claims-processing policies. In December 2006 Judge Acker ordered the Rigsbys to return thousands of pages of State Farm documents they had secretly copied. Rather than let the Rigsbys turn over those documents to Renfroe’s counsel, as Judge Acker had contemplated, Scruggs asked Attorney General Hood to have his office request the documents from Scruggs (even though Hood’s office already had a set). Hood’s office did so, and Scruggs then sent the documents there instead of to Renfroe’s lawyers, theorizing that doing so would then be allowed under a “law enforcement exception” contained in Judge Acker’s order.
Judge Acker disagreed with Scruggs’ interpretation of his order, and in June 2007 he recommended that criminal contempt charges be brought against him. Birmingham’s U.S. Attorney, Alice Martin, declined to prosecute, prompting Acker to appoint three private attorneys to act as special prosecutors: Charles E. Sharp, Jr., and Joel Williams, both of Birmingham’s Sadler Sullivan, and former federal prosecutor Michael Rasmussen. Those three filed a formal criminal contempt charge against Scruggs last August.
On February 29, however, Judge Vinson dismissed that charge, concluding that Judge Acker’s order – which was directed only to the Rigsbys and their “agents” and “attorneys” – did not reach Scruggs, because he had never formally entered an appearance on the Rigsbys’ behalf in the Renfroe case. (This was so, in Vinson’s view, even though Scruggs represented the Rigsbys in other cases, had hired their lawyers in the Renfroe case, and was paying those lawyers. Indeed, he had also pledged to indemnify the Rigsbys if they were ordered to pay any damages in the Renfroe case. Basically, he was the master puppeteer behind everything.)
As a fallback grounds for dismissal, Judge Vinson also found that, “while there is a cloud of impropriety surrounding what Scruggs did,” his conduct, nevertheless, did fit within the literal terms of Acker’s order.
The special prosecutors had planned to appeal both of Judge Vinson’s rulings, and originally thought that they had until yesterday, April 29, to do so. But their deadline actually ran out in late March. As he admitted in a motion filed April 15, special prosecutor Sharp had simply looked at the wrong provision of the Federal Rules of Appellate Procedure – the one for civil appeals, which affords the government 60 days, rather than the one for criminal appeals, which affords it just 30 days. He did not realize his mistake until it was too late.
In an interview, special prosecutor Michael V. Rasmussen – the only special prosecutor with experience as a federal prosecutor – notes that he had only worked as a trial prosecutor, that “the government seldom filed appeals, and it had an appellate section which usually handled that.” Special prosecutor Sharp did not immediately respond to a call or e-mail seeking comment.
Below are all the key documents. Read ’em and weep.