former judge bobby delaughter asks judge to quash subpeona from dickie scruggs

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) No. 09 CR 002 v. ) Judge Glen H. Davidson ) RICHARD F. “DICKIE” SCRUGGS, ) ) Defendant. )

BOBBY B. DELAUGHTER’S EMERGENCY MOTION TO QUASH SUBPOENA

Co-Defendant, BOBBY B. DELAUGHTER, by and through his attorneys, THOMAS

ANTHONY DURKIN and LAWRENCE L. LITTLE, pursuant to Fifth Amendment of the

Constitution of the United States, respectfully moves this Court, on an emergency basis, to quash

the subpoena that counsel for Co-Defendant Scruggs has served upon him in the above-captioned

case, which commands DeLaughter’s appearance on March 26, 2012, at 10:00 a.m.

In support of this motion, Defendant, through counsel, shows to the Court the following:

1. On July 28, 2009, DeLaughter pled guilty to one count of attempting to obstruct,

influence, and impede an official corruption investigation and grand jury proceeding in violation

of 18 USC § 1512(c)(2). On November 13, 2009, DeLaughter was sentenced to 18 months in the

custody of the Bureau of Prisons, and a period of two years supervised release. DeLaughter is

currently serving his supervised release portion of his sentence in the Eastern District of

Louisiana, and must request permission of the Court to travel outside that district.

2. On March 14, 2012, undersigned counsel, Durkin, received a letter from

Scruggs’s counsel containing a witness subpoena commanding DeLaughter’s appearance at the

Case: 3:09-cr-00002-GHD-SAA Doc #: 188 Filed: 03/23/12 1 of 6 PageID #: 1807

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hearing.1 This subpoena requires DeLaughter to physically appear in the Federal District

Courthouse in Oxford, MS, in the context of the §2255 proceeding filed by Defendant Scruggs

on March 26, 2012, at 10:00 a.m. A copy of this letter, the subpoena, and the check for fees is

attached hereto as Exhibit A.

3. Counsel for DeLaughter have repeatedly informed Scruggs’s counsel that

DeLaughter will assert his Fifth Amendment privilege not to be compelled in any criminal case

to be a witness against himself. Counsel for DeLaughter also so notified government counsel of

DeLaughter’s position. Further, Scruggs’ lawyers have so acknowledged DeLaughter’s right to

assert his Fifth Amendment privilege in its March 7, 2012, Motion in Limine regarding

DeLaughter’s potential testimony. (Docket #173.) In this pleading, Scruggs seeks either judicial

immunity for DeLaughter or an adverse inference against the government for its failure to seek

immunity for DeLaughter.

4. In its Response (Docket #185), the government cites Fifth Circuit precedent, U.S.

v. Chagra, 669 F.2d 241 (5th Cir. 1982), to the effect that judicial immunity is not appropriate

under these circumstances. While undersigned counsel do not wish to argue the position of

either party on this issue, counsel feel compelled to remind the Court and the government that,

contrary to its suggestion in its response, “one of the Fifth Amendment’s basic functions is to

protect innocent men who otherwise might be ensnared by ambiguous circumstances.” Ohio v.

Reiner, 532 U.S. 17, 21 (2001) (internal quotations and ellipses omitted). Further, while the

Court has yet to rule on Scruggs’ motion in limine, it would seem that should the Court not see

fit to issue judicial immunity as the government suggests is the law of the Circuit, there will be

no possibility that DeLaughter will have any testimony to give. Likewise, while undersigned

1 Counsel had agreed to accept service on DeLaughter’s behalf.


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counsel do not profess to be familiar enough with Scruggs’ claims in this § 2255 proceeding, at a

glance the very relevance of DeLaughter’s testimony—even if he were to be immunized—seems

questionable, at best.

5. Undersigned counsel had proposed that, under these circumstances, the parties

stipulate that if DeLaughter were called as a witness, he would assert his Fifth Amendment

privilege, so as to avoid the unnecessary and pointless process of requiring DeLaughter to seek

permission of the Court and travel from New Orleans to Oxford. While the government is

willing to enter into this stipulation, counsel for Scruggs rejected this proposal on March 22,

2012; and is insistent upon DeLaughter’s physical appearance at the Oxford courthouse on

Monday morning.

6. Scruggs’s counsel’s insistence on DeLaughter physically appearing in Court and

compelling DeLaughter to the witness stand only to assert his valid constitutional right is both

vexatious and wrong—not unlike the impropriety of a party calling a witness to the stand only

for that witness to assert his Fifth Amendment right in front of the jury. See, e.g., U.S. v.

Bowman, 636 F.2d 1003, 1013 (5th Cir. 1981) (“There is strong Fifth Circuit precedent against

allowing witnesses to assert the Fifth Amendment in the jury’s presence. The general rule is that

once the trial court has satisfied itself as to the validity of the witness’s Fifth Amendment claim,

it may, in its discretion, decline to place the witness on the stand for the purpose of eliciting a

claim of privilege”); U.S. v. Lacouture, 495 F.2d 1237, 1239-40 (5th Cir. 1974) (affirming trial

court ruling that witness, who stated to court during in-chambers examination that she would

assert Fifth Amendment, could not testify before the jury and that counsel could not make

reference to her failure to testify); United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)


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(“[i]f it appears that a witness intends to claim the privilege as to essentially all questions, the

court may, in its discretion, refuse to allow him to take the stand”); Bowles v. United States, 439

F.2d 536, 542 (D.C. Cir. 1970) (observing “the rule that a witness should not be put on the

witness stand for the purpose of having him exercise his privilege before the jury”).

7. Additionally, the insistence upon requiring DeLaughter to appear only to assert a

valid constitutional privilege, arguably runs counter to the spirit, if not the letter, of Rule 4.4 of

the Mississippi Rules of Professional Conduct, entitled “Respect for Rights of Third Persons.”

This section provides that: “In representing a client, a lawyer shall not use means that have no

substantial purpose other than to embarrass, delay, or burden a third person, or use methods of

obtaining evidence that violate the legal rights of such a person.” While Scruggs’s attorneys no

doubt wish to represent their client zealously, this should not come at DeLaugter’s expense.

8. Lastly, as noted above, DeLaughter is currently serving the supervised release

portion of his sentence, which requires permission from the Court to travel outside the Eastern

District of Louisiana. It is incongruous to counsel that this Court would wish to grant such

permission for such a meaningless appearance. DeLaughter is making great personal strides to

put this painful episode with Scruggs, Peters and the like behind him and has relatively new

employment in New Orleans. Not only can he not afford to miss work and jeopardize his

employment, it is not in his interest to become part of the media circus this hearing for Scruggs is

likely to attract. In short, he simply should not be compelled to appear under all of the foregoing

circumstances.


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Respectfully submitted,

s/ Thomas Anthony Durkin

THOMAS ANTHONY DURKIN

s/ Lawrence L. Little LAWRENCE L. KITTLE, Attorneys for the Defendant Bobby B. DeLaughter.

DURKIN & ROBERTS 2446 North Clark Street Chicago, IL 60614 (312) 913-9300 LAWRENCE L. LITTLE & ASSOCIATES, PA 829 North Lamar Boulevard, Suite 6 Oxford, Mississippi 38655 (662) 236-9396


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CERTIFICATE OF SERVICE

I hereby certify that the foregoing BOBBY B. DELAUGHTER’S EMERGENCY MOTION TO QUASH SUBPOENA was served on March 23, 2012, in accordance with Fed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district court’s system as to ECF filers. /s/ Thomas Anthony Durkin THOMAS ANTHONY DURKIN 2446 North Clark Street Chicago, IL 60614 (312) 913-9300


Case: 3:09-cr-00002-GHD-SAA Doc #: 188-1 Filed: 03/23/12 1 of 5 PageID #: 1813

former judge bobby delaughter asks judge to quash subpeona from dickie scruggs

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