Cornered (10 page)

Like most corporate whistle-blowers, Williams was viewed as part hero, part fool, and always regarded with suspicion. Is he mad, or does he really have a social conscience? Is he out for personal gain? Or does he simply crave attention? In the 1960s and 1970s the first American whistle-blowers exposed toxic chemical dumping, unsafe drugs, and asbestos diseases and were often branded as leftist troublemakers: Karen Silkwood and her documentation of unsafe practices at the Kerr-McGee nuclear power plant in Oklahoma is one case.

Merrell Williams's stolen documents were certainly in this category. What he extracted from Brown & Williamson's confidential files had never been unearthed in forty years of litigation against the tobacco industry. The papers would be vitally important to those seeking to change the way the industry does business and especially to the anti-tobacco lawyers in the Third Wave. But tobacco was not nuclear power; Williams was a dissident in an industry that most people readily accepted as an essential, even desirable part of human culture, a big taxpayer and a key prop of American agriculture.

By liberating evidence of wrongdoing from the files of the tobacco industry, Williams was not destined for instant social sainthood. There was no guarantee that he would even become a national hero; just the grim prospect of prolonged litigation as the industry tried to make him the issue, not the documents. His decision to steal them in the first place was filled with conflicting motives, and then his second decision to hand them over to plaintiffs' attorneys suing the tobacco industry was complicated and probably will always be somewhat unclear.

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I
T WOULD BE FAIR
to say that prior to 1993, little in Merrell Williams's half century of existence gave any hint that he would one day be famous. He was born in Louisiana into a middle-class family. After leaving high school, he had drifted in and out of colleges, jobs, and marriages. At one point, he was enrolled in drama classes at Baylor University, Waco, Texas, and dedicated himself to acting. Although he was, and clearly still is, rather accomplished at theatricals, he has not been on stage since his college days. Then, his appearances were interspersed with bouts of drinking and carousing as a member of a group of campus rebels who had united under the banner of the Brazos River Society, named after the river that flows through Waco. Among other pleasures, Williams smoked cigarettes—one of his favorites was Kools, a Brown & Williamson brand. He had a brief spell in the army, where military discipline and his own freewheeling lifestyle clashed in a terminal fashion one day only four months after he had joined up. Williams wanted to help a fellow private whose thumb had got stuck in the trigger mechanism of his M-1 rifle. The drill sergeant thought the unfortunate soldier should bear the pain without aid. Williams thought otherwise. The sergeant won, of course. Williams showed his disgust by rushing the sergeant and beating him on the head with his helmet, an act of foolishness that was put down to the excessive heat that day. He was honorably discharged shortly afterward.

Out of the service he went to Ole Miss (a decade before Scruggs and Moore). He showed promise in the liberal arts, earning a bachelor's and a master's degree in the same year, 1966. He met Noni, a law student, on a Tuesday and married her the following Saturday. The marriage was to last for nine years while he went on to the University of Denver and earned a Ph.D. in drama. He returned to Mississippi and taught at small colleges but was bored and unmotivated—by the subject and the students and by the meager financial rewards. He soon gained a reputation for being late for class and leaving early. In the late '70s he lost his job and moved to Oxford, an elegant university town. An old-car enthusiast, he tried importing classic cars from England and for a brief period ran an Irish-style pub. There he met his second wife, Mollie, a singer twelve years his junior. That marriage was to last ten years, and there were two daughters. The pub went bust, and Williams moved down to the Gulf Coast, where he then dreamed of becoming a shrimper.

Mollie soon tired of his lack of ambition and money. She persuaded him to move to Louisville, her home town, where Williams took a couple of menial jobs, raking leaves, house painting, and cleaning up at a car dealership. His health deteriorated, as did his relationship with Mollie. By the end of 1987, he was in the middle of his second divorce when a new opportunity suddenly arose. He had been taking prelaw courses at the University of Louisville and his name was on the list at the local bar association for students needing jobs. Toward the end of November 1987, he was called by the association and asked if he would be interested in a paralegal job—starting at $9 an hour—sorting documents for Wyatt, Tarrant & Combs, the largest law firm in Kentucky. His assignment, according to court files, would be “to analyze and classify documents in connection with the defense of smoking and health lawsuits.”

Williams was put to work with paralegals from two other law firms, Vinson & Elkins of Houston and Atlanta's King & Spalding, both long-term tobacco industry counsel. The task went by the noncommittal title of “Subjective Coding Project,” which meant sorting archive documents on product promotion and smoking and health going back to the '50s. The paralegals worked in an old warehouse in Louisville's East End, once the center of Kentucky's tobacco industry but now a rundown neighborhood of abandoned buildings. The room where they worked was filled with boxes of documents and a sign over the doorway read, “No One Permitted in the Room Without Authorization.” The clerks were required to sign a confidentiality agreement. They were given photo-ID badges and required to keep time sheets. There was a permanent guard on the building.

The company documents were not confined to Brown & Williamson, but often included exchanges of memos and letters with other tobacco companies. B&W was a wholly owned subsidiary of the British tobacco giant BAT Industries, and many of the documents concerned contacts with its London-based parent. Williams quickly learned that the tobacco companies had done extensive research about the effects of nicotine and the cancerous agents in tobacco smoke, but had not made that research public. He began to realize that he was looking at a widespread cover-up of the harmful effects of smoking. The company lawyers had actively participated in this cover-up, using lawyers' devices, such as attorney-client privilege, to keep internal memos confidential. The lawyers had even set up a secret fund enabling them to sponsor, and monitor, tobacco research that would be especially useful in defending liability suits. They had also suggested ways that scientific reports could be censored to remove facts embarrassing to the industry. Some of the documents were so startling that Williams started to make notes on scraps of paper, taking them to the bathroom and stuffing them into his socks.

Over time, Williams grew bolder. He took whole documents out of the building and copied them during his lunch hour. He would carefully fold the documents into envelopes so they wouldn't get dirty and then put them inside his shirt, or sometimes he would wear an old exercise back brace and stuff them into that. The problem was they made a crinkling noise as he walked. So Williams carried an open bag of potato chips and munched as he passed the guard. Occasionally, he would offer the guard a chip. He was never stopped.

Stealing the documents became an obsession for Williams, but as the collection grew, he wondered what to do with it. Should he make the papers public and, if so, how? Williams says the resolution to his problem came one cold day in February 1990, when he went for a walk in the hills outside Louisville. A lapsed Catholic, he started to pray, “God, just tell me what I've got to do, just help me, send me a message. Send somebody to help me.” He says that quite suddenly he lost his fear and decided he must make the papers public. “I'm not saying that God told me to do this, but after that, I did.”

In the Louisville library a few days later, Williams came across reports on the Nathan Horton trial in Mississippi and on the appeals in the Rose Cipollone trial in New Jersey. Often quoted in these accounts was Professor Dick Daynard of Northeastern University in Boston, who ran the Tobacco Products Liability Project. Williams persuaded a friend in Louisville who was training to be a lawyer to call Daynard and say he knew of a woman who had some confidential tobacco documents. (He thought the pretense that he was a woman would give his identity added protection.) Daynard agreed to talk to “the woman” and gave a number to call. Williams called back, admitting his true identity, and they set up a meeting at the home of an old undergraduate friend of Williams's in Orlando, Florida. Williams brought a box of the documents to the meeting. Daynard was stunned at what he saw and immediately warned Williams that if he passed on the documents and was discovered, he could be in very serious trouble. At best, given the power of the Wyatt, Tarrant law firm, he would certainly never find another job in Louisville; and, at worst, B&W would sue him for stealing the documents and he would end up in jail. As to publishing the documents, Daynard said it was possible Northeastern might do it, but his own organization—the Tobacco Products Liability Project—had no money, and even the university would be extremely wary of the legal risks. Daynard had one further suggestion—a meeting with Morton Mintz, a retired investigative reporter with
The Washington Post
who, as a freelancer, was still writing articles about corporate wrongdoing, including the tobacco companies. A second meeting was arranged to which Mintz came. He, too, was astonished by the documents. He suggested to Williams that the two might collaborate on a book, but Mintz abandoned the idea after a few months. As a freelancer, he had no financial backing and he was also concerned about the wrath of Brown & Williamson's legal department. Once the company discovered he had the documents, as it would as soon as he started checking them out, they would sue him even before he could publish anything. Mintz said later, “I thought about it and decided it's one thing to be a martyr for some productive reason, but there's no sense in being a martyr for no productive reason.”

During the next two years, Williams continued to collect documents from the law firm. In the meantime, he married his third wife, Sherry Gibson, a nurse who lived in his apartment building. He was granted custody of his two daughters from the previous marriage and the restructured Williams family lived a relatively normal life—until February 1992, when Williams was told the project at Wyatt, Tarrant was being cut back and his job had ended. The role of Williams the mole, the undercover agent, was at an end. It had been the most exciting period in his life and merited a grand finale. On his last day at work, he brazenly took out his final, and biggest, batch of documents in a banker's box. Neither his supervisor in the documents room nor the guard on the door asked to look inside.

He sat at home for a year without a job, except for a short stint trying to sell cars. He was not feeling well. In March 1993, Williams felt “a curious little hum” in his chest, went to the emergency room of the local hospital, and minutes later was on the operating table having a quintuple bypass operation. Considering how he had maltreated his body over the years, Williams made a good recovery. By fall, he was fit enough to return to the question of what to do with his documents, but he was no longer feeling so sanguine about his role as courageous dissenter. Instead, he decided to turn his bypass operation into a personal-injury case, with Brown & Williamson as the defendants. In his collection of stolen papers he had internal company documents discussing how cigarette smoking caused heart disease. He needed a lawyer.

For his divorce from Mollie he had hired a well-known local lawyer from an old Kentucky family with the grand Southern name of Fox DeMoisey. During the divorce proceedings, Williams kept mumbling to DeMoisey about a highly sensitive project that he was working on and how it was bothering him but he couldn't talk about it—not yet anyway. DeMoisey was a busy man who ran his office single-handed, with his wife as the office manager, and he had simply ignored Williams's mystery project. A few weeks after Williams's operation, DeMoisey got a call from his strange client asking to come and see him in DeMoisey's office in downtown Louisville, a skyscraper building right next door to Brown & Williamson's headquarters.

“He looked terrible, like ten miles of bad road,” DeMoisey recalls. Williams launched into a rambling, incoherent account of the giant fraud that he believed he had uncovered. Toward the end of the conversation, Williams told DeMoisey that he had copied thousands of documents, many of them communications between lawyers. DeMoisey told him to stop the story right there. He didn't want to hear any more. Those documents were, in theory at least, covered by attorney-client privilege. In stealing them Williams could go to jail, and he, DeMoisey, could lose his license if he received them, or any information about them. Wyatt, Tarrant was the largest law firm in Kentucky, with 175 lawyers, a top-drawer client list, and an office building shared with one of the state's biggest banks. It also dominated the local bar association. One procedural slip and they could make a lot of trouble for a lawyer acting on his own, even if he was part of the Louisville establishment.

But DeMoisey, a man of six feet, six inches with a bushy mustache and the military bearing of a Civil War general, had never shirked a legal challenge, especially one that tweaked his own social class. He pondered the case over the weekend and met Williams the following week. Williams had three choices, he said: dump the documents in the Ohio River, try to go public, or settle the matter with a private claim against the company for damages to his health, implying that he would be using the documents as evidence. DeMoisey recommended that Williams file a private claim and, at the same time, give the documents back. That way, the documents would be authenticated, at least. In his job at Wyatt, Tarrant, Williams had access to company letterheads. For all DeMoisey knew, he could have forged the whole set of papers, and that was almost certainly what the company was going to charge, whatever the truth. B&W would simply brand Williams as a fraud. If Williams returned the documents and then demanded them back in litigation, as in the normal pretrial discovery, there was only one way B&W could prevent those documents from being produced and that was if they insisted that the documents were subject to attorney-client privilege, or work product—that is, work done by lawyers in anticipation of a lawsuit. In order to do that, B&W would be admitting that the documents were real. Another reason to return the documents was that B&W was bound to accuse Williams of being a thief. The legal definition of thievery is taking property with intent to permanently deprive. By giving the documents back, Williams would be confusing the charge. Whether Williams had actually stolen anything was questionable. There were laws about copyright and trademarks, but was it possible to steal information? He didn't think so.