© 2021 by Hugh Stevens
The
TIME is 1983-85.
The PLACE is the Superior Court of
New Hanover County, North Carolina.
THE PLAINTIFF is Dr. John Dees, a
physician and Democratic party operative from Burgaw, North Carolina.
THE PLAINTIFF’S LAWYER is John J. Burney
Jr., a bombastic, Bible-thumping Wilmington trial lawyer, decorated World War
II veteran, and Democratic State Senator.
THE DEFENDANTS are The Wilmington
Morning Star, a daily newspaper owned by The New York Times, and two
of its reporters.
THE DEFENSE COUNSEL are Raleigh
lawyer Wade Hargrove, his law partner Wade Smith, and their young associate, John
Edwards.
THE JUDGE is Charlie Winberry, a
large man with a big personality and two passions: Wake Forest University and
Democratic Party politics.
THE KEY WITNESS is Douglas
McCullough, an assistant U.S. Attorney.
OUR STORY begins with the Morning
Star’s coverage of the sentencing hearing for Ron Taylor, a state
representative convicted on federal racketeering charges in 1982. The paper’s report, written by reporters Ray
Belew and Judith Tillman, focused on a videotape played in federal court in
which Taylor suggested that Dr. Dees, whom he described as “the head politico
in Pender County,” needed money and might take a bribe or engage in other
illegal activity to get it. In writing
the story, which was headlined “Dr. Dees denies implications by Taylor,” the
reporters contacted Dees and quoted his suggestion that Taylor was merely
“name-dropping” to impress the federal agents.
Despite the fact that the newspaper had given him the opportunity to
respond to Taylor’s accusations, Dees sued the Morning Star for libel.
David Thurm, the New York Times’ in-house
counsel, retained Raleigh lawyer Wade Hargrove to defend the suit. Hargrove, who was General Counsel to the North
Carolina Association of Broadcasters, had established his reputation as a
skilled media lawyer. He had never
defended a libel suit in a jury trial, but he knew defamation law well and
advised his clients about it. He knew
that jurors were notoriously hostile to news organizations, so the favored
defense strategy was to look for an opportunity to “kill the case on motions”
and avoid a trial. Adopting that
strategy, Hargrove moved to dismiss Dr. Dees’ complaint on the grounds that the
Morning Star’s story was privileged as a fair and accurate report about
a public judicial proceeding. To his
dismay, Superior Court Judge James “Lew” Lewellyn summarily denied the motion, requiring
the case to proceed to discovery and trial.
When
the case was calendared for trial in the fall of 1985, the parties filed a
flurry of pretrial motions, including Hargrove’s motion to have Dr. Dees
declared to be a public official or public figure in light of New York Times
v. Sullivan. If successful, the
motion would trigger the “actual malice” rule and greatly enhance Dees’ burden
of proof. The motion was grounded on
Dees having held numerous public positions, including Director of the Pender
County Health Department, a trustee of Pender County Memorial Hospital and
UNC-Wilmington, and chair of the Democratic Party for the Third Congressional
District.
Hargrove and his young colleagues
had researched and briefed the potentially critical motion, but he was worried,
because the judge assigned to preside over the trial was Charles Winberry. Like Dees and Burney, Winberry had long and
deep ties to the North Carolina Democratic Party. As a registered Republican, Hargrove felt surrounded, so he walked into the office next
door to talk with its occupant, his law partner Wade Smith.
The two Wades had been close friends
since meeting as law students at Chapel Hill.
They not only practiced law together; they also made music as members of
Bloomsbury, a local folk and bluegrass group. Smith, who hid a brilliant legal mind behind
an Andy Griffith downhome demeanor, had become one of North Carolina’s most
respected and successful criminal defense lawyers by defending several
high-profile profile murder cases, including the trial of U.S. Army Captain Jeffrey MacDonald, a Green
Beret physician charged with killing his wife and two daughters at Fort Bragg. By enlisting Smith’s help, Hargrove hoped to
draw not only on his courtroom savvy, but also on two potentially critical
facts: first, that Smith was wired into the inner circles of the North Carolina
Democratic Party; and, second, that Charlie Winberry, who was a member of the
Party’s inner circle, owed him.
Wade
Smith’s Democratic Party credentials were grounded in his having served two
terms as a state representative from Wake County in the mid-1970s, but his
relationship with Winberry was personal as well as political. In 1971 Winberry, who was then president of
North Carolina’s Young Democratic Club, was involved in an automobile accident
near Zebulon that resulted in the death of an N.C. State student. At the ensuing coroner’s inquest, Smith
defended Winberry, and he was exonerated.
Smith also had supported Winberry in
1980, when his nomination to a federal district judgeship was rejected by the
United States Senate’s Committee on the Judiciary — something the committee had
not done in 42 years. The committee’s vote
was based on the testimony of the defendant in a federal cigarette smuggling
case, who bragged to an informant that he had funneled payoffs to U.S. District
Judge John Larkins in return for light sentences. Winberry, he claimed, was the
conduit for the payments. Winberry
vehemently denied the allegations, labelling them “so ridiculous they don’t
even deserve comment.” Senator Robert
Morgan, who had recommended Winberry and whose 1974 campaign Winberry had
managed, also disparaged the allegations, but after independent investigations
by the American Bar Association and the judiciary committee turned up questions
about Winberry’s candor, the committee vote went against him, 9 to 6. Winberry was humiliated, but in 1982 Governor
James B. Hunt redeemed his honor by appointing him to the state superior court bench,
from which he would preside over the Dees trial.
Although Smith agreed to help
Hargrove with the critical Dees motion, he was preoccupied with the defense of
a murder case, so he and Hargrove weren’t able to devote much time to preparing
for the upcoming hearing. On the
appointed day, Hargrove picked up Smith for the two and a half hour drive to
Wilmington. In route, Smith relentlessly
picked his brain about the issues and the applicable law, which Hargrove knew
forward and backward. Finally Smith said, “O.K.
I’ve got this.”
When the hearing convened, Judge
Winberry engaged in the customary pleasantries with the lawyers and said to
Smith and Hargrove, “this is the defendants’ motion, so I will hear from you.”
Wade Smith stood up.
“Good Morning your honor,” he began. “I’m pleased to be here today with my friend
and law partner, Wade Hargrove.
“This hearing,” he began, “reminds
me of the story about a college professor who was awarded the Nobel Prize for
developing a breakthrough theory about nuclear physics. In order to capitalize on his newfound fame, the
professor arranged to give guest lectures at dozens of prestigious colleges and
universities all over the United States.
Now the professor didn’t like to fly, and he wanted to see the country,
so he hired a chauffeur to drive him from place to place. They developed a nice routine where the
chauffeur would drive the professor to each lecture and sit in the back of the
auditorium while the professor made his talk.
“One day, after the professor had
given his lecture twenty or thirty times, the chauffeur said, ‘You know,
professor, I’ve heard your talk so many times I’ve pretty much memorized it. I’ll bet I could give it as well as you.’
“’Well,’ the professor said,
‘frankly, I’m pretty tired of giving it, so why don’t we trade places
tonight? You can wear my suit and give
the lecture, and I’ll put on your uniform and sit in the audience.’
“So
they did.
“Well, your honor, everything went
well at first. The chauffeur delivered
the professor’s lecture flawlessly, word for word, to great applause. But then
the moderator said, ‘Professor, by our university’s long tradition, every
visiting lecturer is expected to entertain a question or two from the audience,
so I’m going to recognize Sam Jones, a graduate student in physics, to pose the
first question.’
“Before the chauffeur could object,
the student stood up and asked him an incredibly arcane and convoluted question
about the professor’s theory. When he
had finished, the chauffeur said, ‘Mister Jones, that is a very simple question.
I am astonished that a graduate student in physics at this distinguished
university would ask such a simple question.
In fact, your question is so simple, I’m going let my chauffeur answer
it.’”
Smith paused just long enough for
Judge Winberry to absorb the story. Then
he said, “Your honor, Mr. Hargrove drove me down here this morning, and this
motion is so simple, I’m going to let him argue it.”
And he sat down.
After the laughter in the courtroom
subsided, Hargrove presented the argument, and prevailed. Winberry’s ruling put Dees in the position of
having to prove, by “clear and convincing evidence,” that the article at issue
was false, and that the newspaper had been reckless in publishing it.
When the case was called for trial
in the fall of 1985, Smith was tied up
in a murder case, so Hargrove put the trial tactics in the hands of 32-year-old
John Edwards, whose charming self-confident demeanor and intense preparation
had already produced two multi-million dollar jury verdicts in personal injury
cases. As the trial unfolded, the
defense team found itself facing a thorny and unexpected development when Hargrove
got a call from David Thurm, who had discovered that the Times had
published an editorial in 1980 praising the Senate Judiciary Committee’s
rejection of Winberry’s federal judgeship nomination. The newspaper’s lawyers also were concerned
that Burney and Winberry each had two degrees from Wake Forest University and
were devoted “Demon Deacons.”
Burney’s
first witness was Assistant U.S. Attorney Douglas McCullough, who had
prosecuted Ron Taylor. In the course of
his testimony, McCullough, who would later serve for 15 years as a judge of the
North Carolina Court of Appeals, described the videotape of Representative
Taylor’s interview with federal undercover agents. Edwards asked him whether Taylor had said or
implied that Dees “would take a bribe.” Since
the videotape itself was not in evidence, McCullough paused, thinking that Burney
might object that the answer called for hearsay. When no objection came, he said, “Yes.” Burney then called, and cross-examined as
adverse witness, the Star employees who had written and edited the
story. Dr. Dees then testified that the
newspaper’s story had made him “depressed and irritable,” that his
medical practice had declined “considerably” in its wake, and that he got fewer
Christmas cards and party invitations after it was published.
At
the close of Dees’ evidence, Edwards and Hargrove moved for a directed verdict
in the defendants’ favor. When Winberry
denied their motion, they elected not to put on additional evidence, a tactical decision that sent the case to the
jury but also gave them the right to argue to the jury before and after Burney
argued on behalf of Dr. Dees.
In
their closing arguments, Hargrove and Edwards urged the jurors to focus on the
evidence, including McCullough’s testimony that he agreed with the newspaper’s
characterization of Taylor’s statements about Dees. If anyone libeled Dr. Dees, Edwards said, “it
was Ron Taylor, not the Star News.” Dees’ attorney John Burney took a very
different tact. In his customary
flamboyant style, he made an impassioned and emotional presentation, telling
the jurors he had “spilled my blood three times during World War II to protect
this country’s freedoms,” including freedom of the press; describing the
“appalling” experience of liberating a Nazi concentration camp; charging that
the Star had set out to “gut” Dr. Dees; and declaring that defendant
Tillman had “the face of a Madonna, but a soul of sawdust.”
After
hearing Winberry’s instructions, the jurors retired to deliberate. Edwards told Hargrove that although he didn’t
know what the verdict would be, he was confident about the votes of two young
women. “We connected,” he said, “and I’m
sure they are with us.” After discussing
the case for several hours, the jury retired for the night without a verdict.
The
next day, Winberry invited the lawyers into his chambers for a chat. He told them that although he couldn’t hear through
the wall exactly what was being said in the adjacent jury room, he could tell
that voices were raised and the arguments were heated. Twice that day the jurors emerged and asked
Winberry to review his instructions about the elements of libel and the definition
of “clear and convincing evidence.”
Again, they went home for the night without having reached a verdict.
After
deliberating for another day, the jurors reported that they were “hopelessly
deadlocked” over the threshold issue, which was whether the newspaper’s article
was false. Ten jurors thought it wasn’t,
but two maintained that it was. (Post-trial
interviews with the jurors, Hargrove said, revealed that the two holdouts were
the two young women about whose votes Edwards had been so sure.)
Faced
with the jury’s impasse, Judge Winberry declared a mistrial and said he would
reconsider a defense motion for a directed verdict. After affording both sides the opportunity to
present briefs and arguments, he allowed the motion in February, 1986,
dismissing the case. Dees and Burney elected
not to appeal, thereby consigning the matter to history.
Charlie
Winberry died four years later, in 1989.
He was just 47. Dr. John Dees died in 2003. John Burney passed away in 2010. Wade Hargrove continued practicing law until
his retirement in 2017. John Edwards
became North Carolina’s best known trial lawyer, a U.S. Senator, and a
candidate for Vice President of the United States. After his political career imploded in the
face of marital and sexual scandal, he returned to practicing law and is still
winning big jury verdicts in personal injury cases.
Wade Smith is 83. He is still practicing law and telling stories.