Thursday, August 19, 2021

A Forgotten Libel Suit Filled with Unforgettable Characters


© 2021 by Hugh Stevens

     Sometimes the account of a lawsuit reads more like the script for a morality play than a simple piece of legal lore.  This is such an account.

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.           


Wednesday, September 4, 2019

The Kindness of Strangers

Our saga began on Saturday, August 17, near Littleton, Massachusetts.
            Marilyn and I were driving south on I-495 on the first leg of our journey home to North Carolina following three delightful weeks hanging out in Maine.  We were headed to Old Lyme, Connecticut to meet some former Raleigh neighbors for supper, spend the night at a local inn, and drive on to the Philadelphia area on Sunday morning.
            Marilyn was at the wheel when the Low Fuel warning light came on.
            “You don’t have to pull off right away,” I said.  “We have enough gas to go another 40 miles or so.”
            Marilyn ignored me, which turned out to be our first stroke of good fortune.  “I don’t like to take a chance,” she said, and immediately began looking for the next exit.
A couple of minutes later, we swung off the interstate toward Littleton.  A sign pointed us to the west for gas but didn’t say how far off the highway it was.  After half a mile, no station had appeared.  Then a second warning light came on.  “Check Tire Pressure,” it said, indicating a problem with our left rear tire.
            “No need to panic,” I thought, because I had checked the tires just before we departed from Maine and had added air to that very one because its pressure was a couple of pounds lower than the others. 
“That tire that I pumped up is probably still a little low,” I said. “I’ll check it when we get gas.”  At almost that moment a gas station and convenience store appeared ahead.  Marilyn pulled up to the self-service pump.  As I pumped the gas, I could see that the tire was noticeably low and getting lower by the minute.  “Uh-oh,” I thought.
            When the tank was filled Marilyn moved the car to the side of an adjacent to a wash bay where the station’s air hose was located, but before I could do anything I saw that the tire was flat as a pancake.   Knowing that our Acura’s spare tire was a “donut” or temporary spare than could be driven only a few miles, and then at 50 MPH or less, it suddenly struck me that we were in need of a tire in a unfamiliar town many miles from our destination at four o’clock on a Saturday afternoon.  I entered the convenience store and approached the attendant, who was talking to a customer.  “I’m sorry to interrupt,” said, “but I have a flat tire and need to call Triple A.  Can you tell me the address here?” 
            “It’s 25 King Street,” she replied.  I thanked her and began dialing the AAA number on my cell phone as I returned to the car, where Marilyn was already removing our luggage, cooler, and other vacation detritus from the cargo area to get access to the funky little spare.  As I navigated AAA’s phone system, a man and young boy came out of the convenience store and approached us.
            The man gestured toward my hat, which bore a Carolina blue UNC logo.  He asked, “Could you use some help from a fellow Tar Heel?” 
            “That would be great,” Marilyn told him, and introduced herself.  “I’m Marilyn,” she said.  “Patrick,” he replied, and immediately began pulling the jack and spare out of the car.  I gave him a thumbs up and mouthed a “thank you” while I talked to the AAA dispatcher, who was sending a truck and said she would help me find a tire store nearby.  Almost immediately a huge truck pulled up.  On the door was painted “W.C. Gurrisi & Sons, Inc.” The driver jumped down, entered the truck’s cargo space, and emerged with a pneumatic lug wrench in hand.  While Patrick handled the jack, our second Good Samaritan, who introduced himself as “Bill,” removed the defunct tire and mounted the temporary spare.  The scene would have been familiar to anyone who has ever watched the pit crews at a NASCAR race.  They were done in five minutes or less.
            While Bill and Patrick worked, the AAA dispatcher was giving me a combination of good and bad news.  The good news was that Sullivan Tire, a venerable New England company with which I had done business previously including replacing ruined tires in Boston and Maine on two previous trips had a location less than two miles away in Westport, an adjoining town.  The bad news was that the store would close at five o’clock and would not be open on Sunday.  I looked at my watch as I dialed the number.  It was 4:20 PM.  I hastily described my situation to the gentleman who answered the phone.  “Get here as quickly as you can,” he said, “and we’ll see what we can do.  I don’t know if we have your tire in stock, but as it happens this is Massachusetts’ tax-free weekend, so we will be open tomorrow.”  I quickly scribbled down Patrick’s and Bill’s names, thanked them profusely but inadequately, and drove off.
            We arrived at Sullivan Tire shortly before their closing time.  After looking up my name and history in their computer system, the manager said, “I can’t do anything today because my technicians leave at five.  I have a tire in stock that could get you back to North Carolina, but it doesn’t match the tire we put on your car last year, so you’d need to replace it when you get home.  Since tomorrow is the one Sunday in the year that we are open, I can get the right tire in the morning and get you out of here by noon or a little after.  That’s what I recommend.”
            Astonished by our good fortune over having hit on a 1-in-52 chance to get a tire on Sunday, we readily agreed.  While Marilyn called our friends to let them know we weren’t going to make it to Connecticut, I dialed the inn in Groton where we had booked a room for the night.  When I explained why we wouldn’t be coming, the manager graciously canceled the reservation without penalty.   At that point I exhaled fully for the first time in an hour and put in a call to a nearby Hampton Inn, which had a room available.
            When we checked in at the hotel, our good luck continued.  Upon learning that we were stopping for the night by accident, the desk clerk said, “Well, you reserved a king room, but I’m going to upgrade you to a king suite at the same rate.”
            The rest of our bad luck/good luck story unfolded beautifully.  The king suite was comfortable, the Italian restaurant recommended by the desk clerk was terrific, the new tire was on the car by lunch time on Sunday, and despite heavy traffic we made it to Kennett Square, Pennsylvania for dinner.  After two delightful days exploring Longwood Gardens, Winterthur, the Brandywine River Museum and the Nemours Estate, we arrived home safely — and gratefully. 
Looking back, we were amazed by our good fortune.  Imagine how much worse our stroke of bad luck would have been if Marilyn had not exited the interstate when she did; we would have been stranded on the side of a busy highway instead of at the gas station where help was available. Who could have imagined the simultaneous appearances of Bill and Patrick, both of whom were away from their own homes when fate turned them into a team of tire-changing dynamos?  How could we have anticipated that Sullivan Tire would be open on the one Sunday in the year that we needed them, that the Connecticut hotel would cancel our reservation at no charge, or that the Hampton Inn receptionist would upgrade our booking? 
There’s no way adequately to thank these strangers for their kindness, and only one way even to try.  We can only hope that someday, somewhere the opportunity will arise for us to pay them forward.        

Wednesday, January 30, 2019

A peace-full home for Silent Sam?

            Like many UNC alumni, I’ve been talking with friends a lot recently about the disposition of “Silent Sam.”   Since neither I nor my friends have any real influence on the ultimate decision, our conversations have been, at best, aspirational.  After listening to many suggestions — some thoughtful, some emotional —  I’ve come to the conclusion that Bennett Place near Durham, an obscure and overlooked state historic site, would provide the statue of the Confederate soldier with his most appropriate home.
            Here’s why.
            First, I am convinced that returning the monument to McCorkle Place on the Chapel Hill campus, where it stood for 105 years, will engender protests and rallies  disruptive to the University’s academic mission, costly and difficult to control, and imbued with the inherent threat of violence.
            On the other hand, destroying the statue, or locking it away in a secret location, would constitute a denial or revision of North Carolina’s history, which in my view should be remembered honestly, “warts and all.”
            Some folks have suggested that the statue be placed in the North Carolina Museum of History or the  Civil War museum planned for Fayetteville.  I wouldn’t be offended by either outcome, provided that the monument would be thoroughly explained and contextualized.  I’m not enamored by the suggestion of the Bentonville battlefield, because it’s a place of war and conflict, whereas Bennett Place memorializes peace and reconciliation.
            At the end of the day,  I think the most appropriate location for Silent Sam is at the little homestead where Confederate General Joseph E. Johnston surrendered more than 89,000 troops under his command to Union general William Tecumseh Sherman on April 26, 1865, thereby effectively bringing the Civil War to its end.  This austere out-of-the way site, which preserves the modest farmhouse where Johnston and Sherman negotiated, is suffused with the sprits of peace and national unity, both of which would be welcome additions to the polarizing Silent Sam saga.  The exhibits and video available in the site’s museum explain what happened there evenhandedly, without polemics or proselytizing.
            Most of us learned in high school that the Civil War ended on April 9, 1965 when Robert E. Lee surrendered his Army of Northern Virginia to Ulysses S. Grant at Appomattox Court House.  It didn’t.  The Confederacy’s leaders did not acknowledge defeat and rebel soldiers, including around 40,000 bivouacked near Greensboro, remained in the field throughout the South.  Sherman and other Union leaders feared that instead of surrendering, the rebel armies would simply disband, melt into the countryside, and continue fighting as guerrillas.  These fears were shared by Johnston, who told Confederate president Jefferson Davis that in light of Lee’s capitulation his troops regarded the war as at an end and were “melting away like snow before the sun.”  Both generals’ worries were heightened by President Lincoln’s assassination on April 14.
            After three meetings and a couple of false starts, including President Andrew Johnson’s rejection of the original surrender terms offered by Sherman, the two generals reached an agreement on April 26 almost identical to the one signed by Lee and Grant two weeks earlier.  Over time the two foes became such good friends that Johnston served as a pallbearer at Sherman’s funeral.
            The spirit of mutual respect and forgiveness reflected in the two generals’ lifelong friendship also is reflected in the lone monument that adorns this peaceful place — two stone columns supporting a granite pillar labeled “Unity.”  It was erected in 1923 to celebrate the reunification of the country after the Civil War.  In that spirit,  I’d like to see it flanked by “Silent Sam” on one side and a companion statue of a Union soldier on the other.  Goodness knows, these days we need all the Unity we can find.

Sunday, November 18, 2018

Fifty Years as a Lawyer

           To my astonishment, 2018 marks my 50th year as a licensed attorney.  In October the North Carolina State Bar invited me and each of my fellow 50-year lawyers to submit a brief essay reflecting on our careers.  Here's mine.    

         I didn’t go to law school out of a life-long desire to be a lawyer; in fact, my ambition was to be a print or television journalist.  I went because a lot of my friends were going, because I won a scholarship, and because my Alamance County draft board had me square in its sights.  I reasoned — wrongly, as it turned out — that during my three years in law school the Vietnam War might somehow be brought to a merciful end.

          Passing the bar in 1968 allowed me to accept a commission as a lieutenant in the U.S. Navy’s Judge Advocate General Corps.  I served four years on active duty, during which I met my wife and learned way more about actually being a trial lawyer than I ever learned in law school, including the fact that I liked it and wasn’t bad at it.

          I came to Raleigh early in 1973 and joined the firm of Sanford, Cannon, Adams and McCullough.  Around 1977, through a great stroke of luck, I had the honor of succeeding the late William C. Lassiter as counsel to the North Carolina Press Association, which allowed me to combine my passion for journalism with my skill and training as a lawyer.  I’ve represented journalists ever since and, with the help of thoughtful and conscientious judges who cared about the First Amendment, even helped make some pretty good case law along the way.

          My law practice has been made fun and intellectually stimulating not only by the cases I’ve handled and the clients I have represented, but also by the great people I’ve met on my journey.  Over the years I’ve been blessed to work alongside many dedicated and talented colleagues such as Bob Spearman and Al Adams, both of whom sadly are now departed, and my current partners at Stevens, Martin, Vaughn & Tadych.  I’ve had the good fortune to appear before a wide array of great trial court judges like James H. Pou Bailey, Robert Hobgood, Earl Britt, Don Stephens and my undergraduate and law school classmate, Howdy Manning.  I’ve particularly loved appellate practice and my many opportunities to argue in the North Carolina Court of Appeals and  Supreme Court, and in the Fourth Circuit.  And I’ve had the great honor to be a member of the Wake County Bar, where civility, integrity and professionalism are endemic.

          My law practice has been enriched by the opportunity to teach law and journalism classes at UNC and, for 18 years, leading a “Free Press & Public Policy” seminar at the Duke University school named for my  hero and  mentor, Terry Sanford.  Students keep you honest and on your toes.

          Most importantly, my entire life during the past 50 years has been elevated and enlivened by the unwavering love and support of my wife Marilyn, whose own career as an advocate for abused and neglected children made North Carolina a better place.  No lawyer ever had a better companion for the road.

Monday, May 7, 2018

Bob Spearman's Obituary

        Bob Spearman, an honored trial lawyer who led the legal fight to breathe life into the North Carolina Constitution’s guarantee of a sound basic education for all public school students, died on December 3, 2017. The causes were dementia and Parkinson’s disease. He is survived by his wife of 44 years, Patricia Hinds Spearman; daughters Madolyn Marschall (Mark Salditch) of Baltimore and Dorothy Marschall of Corte Madera, California; grandchildren Zoe Salditch, Leah Salditch, Ellis Hurtado and Weston Hurtado; and sister Mary Lindsay Spearman of Chapel Hill.

        Robert Worthington Spearman was born in Durham on January 23, 1943, the son of Walter S. and Mary E. Dale Spearman. During his formative years in Chapel Hill, where his father was a beloved professor in the UNC School of Journalism, he attended the public schools, delivered the Chapel Hill Weekly for pocket money, became an Eagle Scout, and developed his lifelong love for birds and Carolina basketball. For high school his father, an ardent Democrat, sent him to the Groton School in Massachusetts because President Franklin Roosevelt had gone there. He served as co-captain of the Groton basketball team, graduated first in his class, and was awarded a Morehead Scholarship.
In the fall of 1961, Bob embarked on his near-legendary tenure as a student at UNC, where he compiled a perfect 4.0 academic average and became the first (and only) person in history to be elected president of both the student body and Phi Beta Kappa. He was a member of Chi Psi fraternity, the Order of the Golden Fleece, the Order of the Grail, and the Society of Janus. As Student Body President he and other student leaders worked alongside Chancellor William B. Aycock, UNC President William Friday and Governor Terry Sanford to oppose North Carolina’s infamous “Speaker Ban” law, which was the subject of his senior honors thesis. After graduating with highest honors in 1965 Bob attended Oxford University (Merton College) on a Rhodes Scholarship. At Oxford he earned First Class Honors in Philosophy, Politics and Economics and played basketball, where one of his teammates was Princeton All-America and future U.S. Senator Bill Bradley. “The implicit understanding,” he said, “was that if Bradley was open and I took a shot instead of passing to him, I would come out of the game.”

        After graduating from the Yale Law School in 1970, Bob served as law clerk to U.S. Supreme Court Justice Hugo Black. At the time neither knew that it would be Justice Black’s last term on the Court, or that Bob would help him draft his last and most famous opinion, in the “Pentagon Papers” case. Returning to North Carolina in 1971, he entered private law practice in Raleigh. He practiced with Sanford, Cannon, Adams & McCullough and its successor firms for his entire career, retiring on January 1, 2010 from Parker Poe Adams & Bernstein. Although he handled a wide array of antitrust cases and other complex commercial and business litigation in both state and federal court, Bob was best known for his creative and energetic representation of public school students from poor and rural counties in the landmark case known as Leandro v. State of North Carolina. The Leandro case, which was filed in 1994 and is still pending, resulted in two major State Supreme Court opinions. The first ruled that North Carolina schoolchildren have a judicially enforceable constitutional right to a sound and basic education. The second affirmed a series of later superior court decisions after trials, and held the State had wrongfully denied this right to many State schoolchildren. Bob’s Parker Poe colleagues, for whom he was a mentor and role model, are carrying on
his fight.

        Bob’s honors as an attorney included his election to the American College of Trial Lawyers and his service as a director of the American Judicature Society. He served as a faculty member for the National Institute of Trial Advocacy, taught trial practice at the UNC School of Law, and was a frequent lecturer at judge’s conferences and lawyer seminars.
He also served as chair of the Wake County Democratic Party from 1979 to 1981, and as chair of the State Board of Elections from 1981 until 1985. He was a founder and chair of the North Carolina Center for Public Policy Research.

        Because Bob loved birds, nothing made him more conflicted and flummoxed than a gang of red-bellied woodpeckers who relentlessly attacked the cedar siding on his and Pat’s Raleigh home. After several attempted remedies proved to be useless — including placing a fake barred owl and a scarecrow on the roof — Bob essentially declared a unilateral truce and wrote a hilarious essay about the “woodpecker war” that he distributed to friends and family. 

        He also loved good food, good wine, good books, his family, his alma mater, and reunions with his Groton, Carolina, Oxford and Yale friends and classmates.
A celebration of Bob’s life will be held at a later date. His family suggests that memorial contributions be made to The Carolina Covenant Scholarships General Fund. Office of Scholarships and Student Aid, The University of North Carolina at Chapel Hill, P.O. Box 1080, Chapel Hill, NC 27514-1080.

Remembering Bob Spearman

I was honored to be asked to speak at Bob Spearman's Memorial Service on April 29, 2018.  Here's the text of my remarks, to which I adhered pretty closely except for adding a story about how Bob and I each won a bottle of wine on a long-ago flight to San Francisco by being the first to answer questions in a trivia contest put on by the flight attendants.  Bob was the first passenger to identify the four states whose capital cities begin with the same first letter as the state, and I was the first to come up with the names of the seven dwarfs.

Separately I have posted Bob's obituary.

          I met Bob Spearman in the fall of 1961, on the first day of freshman orientation at Carolina.  We were introduced by Pete Wales, Bob’s Groton classmate and fellow Morehead Scholar, who was in my orientation group.  Both became my lifelong friends and now, sadly and unexpectedly, I have outlived them both.  I guess Billy Joel got it right: only the good die young, or at least before their time.
          Over the course of 57 years Bob and I took classes together, worked together and played together.  As undergraduates at Chapel Hill we also plotted and schemed together in an effort to defeat or repeal North Carolina’s infamous “speaker ban” law, an affront to free speech that was as noxious, notorious and unwise then as HB2 was recently.  Happily, our co-conspirators included then Governor Terry Sanford, UNC President Bill Friday, prominent UNC alumni, and other leaders of the state and university.  Confronting that serious and challenging First Amendment challenge not only helped cement my friendship with Bob; it also was an important impetus, together with the Alamance County draft board, in my decision to go to law school and to become a First Amendment lawyer. 
          Early on I realized two things about Bob: that he was incredibly smart, but he never tried to impress you with how smart he was.  To the contrary, he was one of the least pretentious people I have ever known.  We often talk about people as being comfortable in their own skin, but I don’t think that really applied to Bob because the stuff inside his skin included a spine made up of damaged and deteriorating vertebrae that made him very uncomfortable for much of his life.  Instead, I prefer to think of him as a person who, unlike most of us, was always comfortable in his own mind.
            Bob loved good food and good wine, but he was not a gourmet; he was a gourmand.  (Given the sophistication of this crowd, I’m sure I need not explain the difference.)  He would eat pretty much anything that was put in front of him — and often something that was put in front of the person seated next to him.   The one exception was Brussels sprouts, which he loathed.  When I asked him why, he said it was because at both Groton and Oxford they were always served the same way: cold and gray.  Collards, he believed, were an infinitely preferable green vegetable.
          Bob liked to read about eating almost as much as he liked to eat.  One of his favorite authors was Calvin Trillin, the New Yorker writer whose first book was entitled “Alice, Let’s Eat.”  Bob shared with Trillin the view that the best way to show proper appreciation to one’s dinner party hosts was graciously to accept their offer of a third helping.  Another favorite was R. W. “Johnny” Apple, a New York Times reporter famous for his ability to knock out a riveting front page lede under the pressure of a deadline, and for the staggering size of his expense account statements.  Bob gave me books by Calvin Trillin (including the aptly titled “Third Helpings”) and sent me clippings of Johnny Apple stories.  I can still remember his delight over the September 29, 2003 issue of The New Yorker, which contained an article about Johnny Apple that not only ran to almost 10,000 words and was written by Calvin Trillin.  Bob sent me a copy of the article, which he devoured as enthusiastically as if it were a bowl of crawfish étouffée.
          Given the gusto with which Bob ate, it’s startling that he never acquired a physique like Johnny Apple’s, who was known around the Times both for his profundity and his rotundity.   To the contrary, Bob never seemed to gain any weight.  In his 50s and 60s he could still fit into clothes he had had as a college sophomore; in fact, he sometimes wore clothes he had owned as a college sophomore.
          There are many other things about Bob that I could talk about this afternoon, such as the astonishing breadth and depth of his knowledge; his love of both books and birds; the full-throated enthusiasm with which he watched Tar Heel basketball games on television; his mechanical ineptitude, which left him completely flummoxed when he was confronted by any tool more complicated than a wheelbarrow; or how he would go into an almost impenetrable zone of concentration and focus when he was preparing for a court hearing.  Instead, if you will forgive me for injecting a note of sadness into what is, after all, an occasion for joyous remembrances, I’d like to talk for a few moments about Bob at the end of his life.
          I didn’t see Bob’s steady decline into dementia coming; indeed, in retrospect I see that I didn’t even recognize it after it had begun.  Looking back, I see that if I had been more perceptive I would have realized that something was up when Bob abruptly retired from the practice of law that he loved so much; or when after he and Pat moved to Chapel Hill he didn’t do what so many retirees here do, which is to fill their schedules with the endless array of lectures, seminars, concerts, outings and spectator sports offered up by this great university.   Only when his dementia began to manifest itself in episodes of aphasia and forgetfulness did I come to realize that a more understanding friend would have said long before, “Bob, are you okay?  Is there something I can do for you?”
          Unfortunately, I didn’t ask.  For one thing, Bob’s and my relationship, like those of many men who are friends and colleagues, didn’t extend to asking each other such personal questions.  For another, I always thought of Bob as so self-sufficient and so much in control that it was impossible to think of him as needing help.
          Nearer the end of his life, when he lived first in a group home at the Governor’s Club and then in a memory care facility, I visited with him.  I would show up at the group home with barbecue sandwiches or a bag of BLTs from Merritt’s Store and a cold beer or two, and we would sit on the deck and watch the birds in the adjacent trees and I would read bird poems to him.  Later I got some great advice from my son George who, as an Episcopal priest, has many occasions to visit with folks suffering from memory loss.  He told me that often one of the last faculties that such patients lose is their ability to recall and enjoy music, which certainly was true for Bob.  Even when he could no longer speak or feed himself, he reacted visibly and happily when I cranked up my iPod and my portable speaker and played beach music and 1960s rock and roll hits from the Chi Psi juke box.  The Big Bopper’s “Chantilly Lace” was a particular favorite.
          So, I leave you with some unsolicited but heartfelt advice:  if you have a friend or family member whose mind is failing, don’t fall back on the excuse that “I just want to remember them the way they were.”  Suck it up.  Pay them a visit.  Talk to them, even when you have no idea whether they are taking in anything you are saying.  Sing to them or play music for them.  It will be hard, and you almost surely will leave with tears in your eyes.  But one of the last of the many things I learned from Bob is that it also will be therapeutic for the person you visit — and for you.

Monday, April 10, 2017

Remembering Al 2

             Here are the remarks that I was privileged to make at Al Adams' Memorial Service on April 9, 2017.  I am grateful to Al's family for asking me to participate alongside Charles Meeker, Dan Blue Jr., Betsy Buford and Tom Eichenberger. 
            I am humbled and honored to have been asked to share some memories of Al today; after all memories are what a memorial service is all about.  The ones I have chosen are not about the weary and ill Al of recent times.  Rather, they are of the vigorous and exuberant Al Adams alongside whom I was privileged to practice law.
            In the interest of time, I have eliminated all of the anecdotes that came to mind during the preparation of these remarks.  I hope they may kindle stories of your own; if so, go home,  pour yourself a drink, and tell them to each other.
            I learned a lot from Al.   For example, he taught me that when you go to court, you should always be respectful of the judge, even if he or she rules against you, and that you should always introduce yourself to the courtroom clerk, the bailiff and the court reporter and thank them for their service.
            Al also taught me that a proper refrigerator always had in it a bottle of gin and a jar of Zatarain’s creole mustard.
            Most of all, Al taught me although law is a serious business, life need not be.
            Frankly, I don’t remember many details, and in some cases even the outcomes, of the many legal cases that Al and I worked on together.  What I DO remember is the fun we had, especially when our work took us to New York and other places where Al could indulge two of his great passions: good food and grand opera.
            Al loved to eat.  His appetite was prodigious, his tastes in food were eclectic and ecumenical, and he seemed to know the best places to eat in every city and town in the country, from Southport to San Francisco.  The best thing about eating with him was the palpable and infectious enjoyment that he displayed, regardless of whether we were dining  at a fancy New York restaurant or having lunch at Green’s Garner Grill.  For Al, every meal was an event. 
            Some of Al’s gusto for food probably was attributable to the fact that he liked to preface a meal with a martini (or two).  He made me the first one I had ever had, straight up with a twist, which is how I like them to this day.
            Al enjoyed feeding others as much as he enjoyed feeding himself.   He loved hosting his annual pre-Christmas party, which drew dozens (sometimes hundreds) of friends to stand outside in the cold and eat steamed or raw oysters and Smithfield ham on saltine crackers topped with his famous rémoulade sauce.   He also loved mixing Bloody Marys, cranking out oyster omelets, and otherwise acting as the impresario of the Sunday brunch at Betty’s Emerald Isle beach house that was, for most of us,  the highlight of our annual firm retreats.
            As Betsy noted, Al also loved the opera, a fascination that he attributed to his mother.   As a relatively young widow who supported herself and him on her salary as a “Red Cross lady,” she didn’t have the wherewithal or the opportunity to attend the opera, but every Saturday afternoon during the season she would tune the radio to Texaco’s broadcast of the Metropolitan Opera’s matinee performance, filling her house and his head with music that he grew to love.   If we were traveling to New York on business, he invariably would consult the Met’s calendar before scheduling client meetings and depositions.  He was mesmerized by every performance from the moments the lights went up until the curtain descended on the dying or dead hero or heroine.  Italian opera was his favorite.  A well-rendered Puccini aria like “Un bel di” could practically lift him out of his seat, and could engender an elbow in his companion’s ribs.  They call it “grand opera,” he said, “because it really is grand.” 
            Al was particularly proud of the fact that we were in the house for a performance of “Aida” on the night that Jimmy Carter became the first, and to date the only, sitting president to attend a performance at the Met.  Al said, “I can’t imagine a Republican president doing something like that.”
            Food and the opera were only two of the things Al loved.
            Above all, of course, he loved his Betty.  In fact, he adored her, and her sudden and unexpected death left him bereft.
            He loved his family and gloried in his children, step-children and grandchildren.
            He loved his friends, including everyone who is here today and the many others who are no longer with us.
            He loved his country.  He was proud of his Navy service, and when he arrived at his and Betty’s beach house for the weekend the first thing he did was raise the American flag.
            He loved his State, which he served so well, and flew its flag, too.
            Al loved his university.  I don’t recall ever hearing him refer to a Carolina football or basketball team as anything except his “beloved Tar Heels.”  One of his great heroes was UNC president Frank Porter Graham, with whom he shared the quaint notion that the Sermon on the Mount was a statement of sound social policy.
            He loved Cameron Park, and through the Cameron Park Association, which he created, he worked tirelessly to rid it of the rooming houses and rental properties that had crept in, bringing with them the threat of neighborhood blight. 
            He loved his house on Woodburn road and enjoyed recounting its history.  When he and Betty reluctantly decided to downsize, he sold the house to Joyce Fitzpatrick and Jay Stewart on the condition that he had veto power over any of their political yard signs.  (A right that he exercised only once.)  At the closing, he cried.
            He loved sailing.  Of all my many happy times we spent together, none was happier than my week-long sailing trip to the Virgin Islands in 1988 with Al, Betty and the late Heman Clark.
            The point is that Al simply loved life.  Indeed, he loved it so fully, and lived it so ebulliently, there are too many such memories to recall or recount at one sitting, or even in one day.   He himself once summed it up perfectly as we sat on his porch drinking our martinis.  “I have,” he said, “the best time of anyone I know.” 
            Indeed he did.  And because he did, those of us who were fortunate enough to be his friends and neighbors and colleagues had a great time, too.