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Is Zach Scruggs Innocent? 5th Circuit: Meh. It Doesn't Matter

By Robyn Hagan Cain on August 17, 2012 | Last updated on March 21, 2019

It took only a month for the Fifth Circuit Court of Appeals to decide that Zach Scruggs is stuck with his "earwigging" guilty plea.

Scruggs, who has already completed his sentence, told the appellate court in July that his plea should be thrown out because his conduct didn't constitute a crime under the Supreme Court's 2010 Skilling v. U.S. ruling. Thursday, the Fifth Circuit affirmed Scruggs' conviction, finding that he was not entitled to relief.

The younger Scruggs, you may recall, was implicated in the judicial bribery scheme that ended his father's career. The elder Scruggs, (better known as Dickie), is serving time in an Alabama prison -- and appealing a 2009 conviction for improperly influencing then-Circuit Judge Bobby DeLaughter of Hinds County.

In 2008, Zach Scruggs pleaded guilty to failing to report an "earwigging" conspiracy to improperly influence a judge. Scruggs claims he didn't know the plot would include paying bribes. Instead, he claims that he only knew about trying to influence the judge to send a case to arbitration, which would be an honest services violation, reports the Northeastern Mississippi Daily Journal.

In 2010, the Supreme Court held in Skilling v. U.S. that the honest services statue applies only in cases involving bribery and kickbacks. Since Zach Scruggs' plea was supposedly to a conspiracy to deprive the public of Lackey's honest services, it wouldn't count as a crime in light of Skilling because it didn't involve a bribe or kickback.

Scruggs' habeas appeal asserted that he was actually innocent, he involuntarily pled guilty due to government misrepresentation, and he received ineffective counsel.

Based on the facts, the appellate court determined that the ineffective counsel claim was untimely. The government misconduct argument was similarly dismissed, as the court found it untimely and without merit. Finally, the court reasoned that Scruggs' "actual innocence" didn't matter.

Actual innocence is not a free-standing ground for relief, but "a gateway to consideration of claims of constitutional error that otherwise would be barred." Since Scruggs' constitutional claims failed on the merits, the Fifth Circuit Court of Appeals declined to consider whether he was actually innocent.

Justice may be blind, but the Fifth Circuit can clearly see its calendar. If you want to preserve your client's shot at appeal based on actual innocence, you need to file a timely constitutional claim.

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