Cornered (11 page)

DeMoisey warned Williams that he was dealing with people who, for whatever reason, believed passionately in tobacco, from tobacco farmers, to the cigarette salesmen, to the company lawyers and executives. Accidents could happen. Not that either of the two men thought the law firm, or B&W, would be involved in harming them physically, but they were concerned about fringe elements. DeMoisey asked Williams to write up a summary of the documents in the form of an affidavit in expectation of death. It sounded dramatic, said DeMoisey, but the reason was that “either because of your own heart condition, or because some bubba from Shelby County could blow your shit away. Once they know that there is this document floating around, it will come to their attention that the last thing they want to happen is for you to die,” said DeMoisey. Williams agreed to the plan after secretly making a copy for himself. DeMoisey sent the documents back in a sealed box with a covering letter saying he had a client, whom he did not name, who had these documents and had become ill as a result of smoking and wanted to file a lawsuit. The law firm replied that they knew perfectly well that DeMoisey's client was Williams and that Williams was unhinged and the documents were meaningless. In fact, they had already probably been made public in previous lawsuits.

It was the bluff DeMoisey had expected. DeMoisey replied that if the documents were indeed meaningless, then Wyatt, Tarrant should give them to him for examination, and if they were right, he'd drop Williams and the case; otherwise his client would go ahead with a lawsuit. He wanted a reply within a week. Before the deadline, Wyatt, Tarrant went into local court in Louisville claiming that Williams had violated his confidentiality agreement and that if he was not restrained from disclosing the contents of the documents, the company would “suffer immediate and irreparable injury, loss, and damage.” Without even looking at the documents and taking Wyatt, Tarrant's view on faith, Judge Thomas Wine, of Kentucky's Jefferson Circuit Court, issued an order that was so severe it even prevented Williams from talking to his own lawyer, DeMoisey.

Actually, DeMoisey was quite happy with the outcome, though it was absurd. By their actions, Wyatt, Tarrant had confirmed that the documents were real, and it was going to be a long, drawn-out affair. For the moment, DeMoisey couldn't move on the case because he couldn't talk to Williams about the case. “In some twenty years of law practice, I had never experienced such a thing and nor had any of the lawyers with whom I discussed the case,” he said.

B&W was apparently worried that Williams had more documents than he had included in the sealed box. In fact, he had no more documents. The company made several unsuccessful attempts to depose him, but he always invoked his Fifth Amendment protection against self-incrimination. In October 1993, the frustrated Wyatt, Tarrant lawyers asked DeMoisey whether he would consider some kind of settlement if Williams would drop his claim and agree to a permanent injunction similar to the restraining order then in effect. DeMoisey insists no money was discussed. “How could we demand money for documents they already had?” he protested. The talks went nowhere. In the end, as far as Brown & Williamson was concerned, Merrell Williams was a thief and an extortionist, and they would continue to pursue him through the courts to ensure his silence. But Williams was no ordinary document thief: greater forces were at work.

*   *   *

T
HOUGH
B
ROWN &
W
ILLIAMSON
made no further legal moves against him, Williams felt the noose of the tobacco company tightening. Brown & Williamson was calling him a thief on the front page of the Louisville
Courier-Journal,
and he lived in an increasingly insecure world of his own, imagining his movements were traced and his phone calls monitored—by whom he did not know. There was no evidence of such things. But he was isolated and afraid. He couldn't talk to anyone about the documents, not his lawyer and not even his current wife, Sherry. By his own admission, he was driving Sherry crazy and he felt that if he stayed in Kentucky under such pressure, sooner or later something really bad was going to happen. In early February 1994, he decided to return to Mississippi. He had no job and had still not decided what to do with the documents.

Williams remembered the Nathan Horton case and the country lawyer, Don Barrett, whose spirited but ultimately unsuccessful challenge to the American Tobacco Company Williams had admired from afar. His mother, who lived in Jackson, had once met Barrett's father, Pat, and Williams decided to play his Mississippi connection to see if he could get a job with the Lexington law firm. He sent a fax to Barrett, who called him back and agreed to meet him at the Olde Tyme Delicatessen in Jackson.

When Williams arrived at the delicatessen, he found that Barrett had brought along Dick Scruggs, who was then unknown to Williams. They chatted for an hour and a half, mainly about social things and his need for a job. He says he never discussed Mississippi's suit against the tobacco companies. He thought that the smooth talking, neatly turned out Scruggs was an FBI agent, or something like that, such was his paranoia about the stolen documents. For their part, the two lawyers say Williams was nervous—“like a scared little deer”—and started an incoherent monologue about the tobacco companies hiding their knowledge of the hazards of smoking. He hinted that he had some incriminating documents, but never actually produced any. In fact, his conversation was so muddled that after the meeting, Scruggs and Barrett looked at each other and asked, “What exactly did he say?” Only one thing had been clear—Williams wanted a job. Scruggs gave him his phone number in Pascagoula, telling him to call if he needed help looking for work.

A few weeks later, Williams called from a pay phone outside Popeye's restaurant in Pascagoula. Scruggs was vactioning in Bermuda, but his secretary got him right away and he phoned Williams back at Popeye's. Scruggs arranged for Williams to take a paralegal job at a Pascagoula law firm. Although Williams never had a formal interview, he says that he never traded the documents for a job, or anything else. In one of the later depositions, B&W lawyers asked Williams, “They were prepared to hire you as a favor to Mr. Scruggs?” But Williams would say only, “They were prepared to hire me. They did hire me.” They paid him $36,000 a year—more than he had ever earned in his life.

When Scruggs returned from vacation, the two met again in Scruggs's offices in Pascagoula. B&W has charged that there was a conspiracy of plaintiffs' lawyers—including Barrett and Ron Motley—to buy the documents from Williams. Each time he was asked about this in a deposition, Williams took the Fifth—in violation of the court's order. Despite persistent questioning from B&W, he has refused to say who was at that Pascagoula meeting, whether he discussed the fact he had the documents, whether he produced any documents, or even whether he agreed to produce any at a later date. DeMoisey, his lawyer at these depositions, complained that B&W was trying to turn a civil-discovery deposition into a criminal-discovery case. At one point, DeMoisey told the judge he was having a problem trying to advise his client about how to answer “this nebulous potpourri of possibilities that they pick and choose from whenever it suits their fancy.”

Whatever was discussed, and whoever was present, the facts are that on April 15, Williams and Scruggs flew in Scruggs's private Learjet to Orlando, where Williams had deposited a copy of his documents with a friend for safekeeping. Williams arranged for the friend to bring the three boxes of documents from her house to the airport and have them transferred to the hold of Scruggs's plane. That way, technically, Williams did not personally hand over the documents and, therefore, technically was not in violation of the Louisville court order. Scruggs also found his own reason for not returning copies of the papers to B&W—which would have been the proper legal thing to do. Instead, he relied on an important exception in the law. If private company documents show evidence of fraud, then legal niceties covering their return to company headquarters, including the sanction of attorney-client privilege, go by the board. Scruggs asked Mike Moore and Don Barrett down to Pascagoula to join him when he opened the boxes and, in their minds at least, there was evidence of possible criminal wrongdoing.

Williams was later hired by Scruggs's own law firm. Scruggs also arranged for Williams to have a car and a small sailing boat. “I wanted to make sure Merrell was protected,” Scruggs would say. “Merrell was penniless and very ill from his surgery. He was frightened. I wanted to make him secure in Mississippi from the retribution and the revenge of the tobacco industry, so I'm glad I have been able to play a role in that.”

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O
N
A
PRIL
14, the day before the document exchange in Orlando, seven CEOs of tobacco companies testified before the Waxman committee in Congress. One by one they took an oath and swore their belief that nicotine was not addictive. Now, with Williams's documents in hand, Scruggs told his colleagues, “These guys are toast.” The official version of what happened next is that Scruggs showed the papers to Moore, who quickly understood that the documents suggested a massive fraud against the public health. The two men then hopped into Scuggs's Learjet and flew a copy of the documents to the Waxman committee in Washington. They actually flew to Washington with the papers on May 6, but a copy of the documents was with Waxman by the time they got there—courtesy of John Coale and Wendell Gauthier.

Uncertain how to handle the documents initially—after all, they were under a gag order—Scruggs and Barrett called Gauthier in New Orleans. Gauthier suggested Barrett bring the documents to the next Castano executive committee meeting and read out some of the better ones. There would be nothing wrong in that because the meeting included only lawyers and everything was privileged. They would then decide what could be done with them. Scruggs was not a member of the Castano group, but Barrett was. At the second meeting of the Castano executive committee in Coconut Grove in Miami on April 21, Barrett got up and started reading from the more sensitive documents. There was silence in the room. Barrett said he planned to give the documents to a state official (actually Mike Moore, although he didn't say so) and perhaps a newspaper in Biloxi. Coale, hearing the documents for the first time, grabbed Wendell and took him out into the hall. “You've got to get me a copy,” he told him. “I can make hay with these in Washington. Taking them to a state official is crazy. This is information, and in D.C., information is currency.” At the time, neither Coale nor anyone else outside the tightly knit Mississippi group of Scruggs, Moore, Barrett, and Motley knew that Moore was getting ready to file the first Medicaid lawsuit.

Gauthier and Coale copied a set of Barrett's documents. Neither Gauthier nor Coale knew at the time where they had come from, and the first time they heard the name Merrell Williams was several weeks later from another Phil Hilts story in
The New York Times.
Coale thought the documents had probably come from another case, maybe Cipollone in New Jersey. Coale had a contact in the office of Congressman Ron Wyden, Waxman's deputy on the committee. Coale called the contact and said, “These are the smoking guns you guys want.” In return, Coale said he wanted a line to the committee hearings to know what was going on. The next day, Coale FedExed a copy of the documents to Wyden's office. Back in Washington, Coale then ran off several more copies and started sending them to the media. This was not yet the full set, only a few hundred pages of the best documents Barrett had pulled from the three boxes of material.

The first member of the media to get the documents was Phil Hilts, who reports on medical and science matters for
The New York Times.
In late April, he received a call in the
Times
's Washington bureau from a government official who said he had internal documents about the tobacco industry. He asked Hilts to his house that evening; he didn't want to come to the
Times.
When Hilts arrived, the documents, about a hundred of them, were laid out on the official's dining-room table. They appeared genuine, and Hilts set about checking names, dates, and events. In fact, they were copies of the ones Coale had given to Wyden. On May 7, Hilts wrote what was to be the first of several newspaper stories about Williams's documents. This one was headlined, “Tobacco Company Was Silent of Hazards,” and was based on the Addison Yeaman memo that had so shocked Scruggs, among others. Hilts's story said only that the documents had been stolen by a former employee of a law firm doing work for Brown & Williamson. Regional papers—including the Louisville
Courier-Journal
—picked up the story. It was Kentucky Derby day, and Williams got a call from his estranged wife, Sherry. “You're all over the papers where the horses normally are,” she told him.

*   *   *

B
ROWN &
W
ILLIAMSON
tried desperately to plug the leak. At the company's request, the Superior Court of the District of Columbia issued subpoenas to Congressmen Waxman and Wyden to appear before B&W's attorneys “for the purpose of inspection and copying of all alleged B&W and affiliated companies' documents” in their possession. Members of the media who had written stories about the documents also received subpoenas, including
The New York Times, The Washington Post,
National Public Radio, CBS, and the
National Law Journal.
Waxman was stunned. “It was quite remarkable, not only had I never received such a summons, I had never heard of a committee chairman being subpoenaed by the target of its own investigation.”

The congressmen protested to the D.C. court and Judge Harold Greene ruled that B&W could not order members of Congress to appear anywhere, and certainly not before the attorneys of a corporation under investigation by Congress. Judge Greene noted that the Constitution gave immunity to members of Congress “for any speech or debate in either House” and that the so-called speech or debate clause had been broadly read to include everything “generally done in a session of the House by one of its members in relation to the business before it” as well as “those matters that are an integral part of the deliberative and communicative processes.” That included material gathered for the investigation, said Judge Greene, and he agreed with Waxman and Wyden that forcing them to release the documents could reveal the identity of their source to whom they had promised confidentiality. Breaking this promise would deter other sources from coming forward.