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.           

           

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