Wednesday, February 21, 2024

Defensive star

Defensive star

Wade Smith’s reputation as the state’s top criminal lawyer
is due to more than just not-guilty verdicts.

By Edward Martin

Below on Salisbury Street, Raleigh’s rush hour has begun. In the worn courtroom, a deputy nods, his shaved head bobbing like a fishing float. Jurors gaze straight ahead at witnesses or at the black-robed judge and occasionally steal glances at spectators behind the rail. One of the spectators, a tall old man in a blue suit with a wilted red carnation, slumps on a bench beside his family.

Robert W. Scott, the son of a governor and U.S. senator, completed his own term as governor 30 years ago. At the defense table sits his daughter. Many considered her election in 2000 as commissioner of agriculture — another office her grandfather once held — as her first step in following her forebears to the governor’s mansion. Then came whispers about money in envelopes and schemes to cover its trail. Felony indictments followed, and she resigned in June.

Meg Scott Phipps, 48, says nothing. Speaking for her is a man with the wispy white hair of Robert Frost. After 40 years in practice, Wade Smith is no stranger to high-profile cases. After all, he is, in the judgment of peers who elected him to Business North Carolina’s Legal Elite, the state’s best criminal lawyer. And aside from the defense of Jeffrey MacDonald, the Green Beret doctor who butchered his family in 1970, this might be Smith’s biggest case.

He leans forward as he speaks. A master of minutiae with a reputation for meticulous preparation, he questions Bobby McLamb, whom Phipps defeated in the Democratic primary. Afterward, prosecutors allege, she bought his support by illegally paying off $60,000 of his campaign debt. “You had a dream, a vision, of becoming commissioner, didn’t you?” “Yes sir,” McLamb answers. “The night of the primary election was sad for you, wasn’t it?” “Yes sir, disappointing.” “You went over to Meg’s room at the old Raleigh Hilton, didn’t you?” “Yes sir.” “You offered her your support, didn’t you?”

Smith’s voice is soft, conciliatory. He paints during his time off — landscapes real and imagined, among other things — and, at 66, is learning to play the violin. This morning, like most mornings, he rose before daylight to practice for an hour. He plays banjo in his Lost Dog String Band and has picked with the likes of Doc Watson and Tony Rice. In 1994, when former N.C. Supreme Court Justice Phil Carlton was charged in a political eavesdropping scandal, he chose Smith to represent him. He attributes Smith’s success in part to his demeanor — an unforced ease combined with a British barrister’s respect for protocol. “He’s a musician in court. He’s still playing that banjo. He knows the rhythm, and he’s singing with it all the time.”

Smith’s record is probably no better than many other top defense lawyers, but those in the know say it can’t be measured by not-guilty verdicts. After all, many of his clients are indeed guilty, and except for a cadre of judges and prosecutors, few know about the sentences that, on his behalf, have been trimmed or the charges that have been reduced, dropped or never filed. While some lawyers are good in court and others are masters at negotiating the complex criminal-justice system, he excels at both. “Wade’s a realist,” says Terrence Boyle, chief U.S. District Court judge for Eastern North Carolina. “Some of the cases that have meant the most to him are ones you’ll never hear of.”

Bob Scott, 74, leans his chin on his cane and stares glumly at the floor. Today, witnesses have told tales of clandestine money, sex and power. Smith searches over and over for the right chord, the right note.

Ruby and Charlie Smith both dropped out of school in the ninth grade to go to work at Wiscassett Hosiery in Albemarle. After they married, they moved into a $4- a-month, four-room mill house, with cold running water inside and a privy out back. Ruby and Charlie — she died three years ago, and he, now 91, is in a nursing home — valued three things most: the Lord, their family and the education they never had. “They read the Bible and lived hardworking lives,” their oldest son recalls. “They went to church every time the door was open.”

Early on, Wade helped impress upon his little brother the power of the word. “I stood out in the back yard one day and decided to say every curse word I’d ever heard. And around the older boys in a mill town, I’d heard a lot,” Roger Smith, 62, relates. “Wade was there, and he said, ‘Wait right there.’ He went in the house and got Mother and said, ‘Roger, say them words again.’ I did, and when Dad got home from the mill, I got a good whipping. I guess Wade was just trying to show a young fellow the right road.”

Wade did yardwork until he was old enough to get a job at the Atlantic filling station, washing cars, working in the grease pit and pumping gas. He graduated from that to Wallace Biggers’ Standard Office Equipment downtown, where he worked through high school, cleaning typewriters and doing odd jobs.

On Sunday mornings, his parents would often drive to the Sandhills. Rockingham was 50 miles away, but like Albemarle, it was a hardscrabble mill town. Charlie’s father preached at East Rockingham Baptist Church. He was a master of the word, with a voice like William Jennings Bryan. After preaching and dinner, the family would gather in his living room. In hard, straight-back wooden chairs around a potbellied stove, he and his kin would hold forth. Roger recalls, “I can hear somebody say, ‘Well, I believe if you check Isaiah … ’ and somebody else would say, ‘Yeah, but over in Corinthians … ’ ”

Wade Smith wanted more than Albemarle could offer. “I saw sports as a way out. There was an extra edge, to try to run a little harder or hit the ball a little farther.” He chose football. A 5-10, 170-pound fullback, he played in only one losing game during his four years at Albemarle High. Scholarship offers poured in. “I thought about law, but I also loved painting. I considered architecture and was accepted at N.C. State’s School of Design.” But he accepted a Morehead Scholarship to Carolina, where he was captain of the football team and president of his class. As graduation approached, he began to listen for his calling.

“My grandfather used to talk about being called to be a minister. I’d ask him, ‘What did you hear? Did you hear a loud, booming, deep voice?’ He’d say, ‘No, no. It’s more like a feeling.’ He’d say we’re all called to whatever we do. We just respond to the call.” For Smith, the call was to law.

He graduated from the UNC School of Law in 1963. (His brother — also a Morehead Scholar, English major, captain of the football team and class president — got his law degree there in ’67.) He landed in Raleigh as a clerk under Supreme Court Justice Carlisle Higgins, a Carolina fan who knew of him from his gridiron feats. “He taught me that lawyers have to be good storytellers,” Smith says, “about the people around us, about our clients.”

Smith and law-school classmate Harold Tharrington discussed forming their own firm but got no encouragement from other lawyers. “They said, ‘All the business is taken.’ This was in April or May of 1964, and I sat up all night in a rocking chair, thinking about it. I came in the next morning without having slept and said, ‘I’ll do it.’ ” They put their names in a hat and drew. The winner got his first in the firm’s name; the loser got the corner office in the suite they rented.

Thus was born Tharrington Smith, which today has 24 lawyers. Smith became a Wake County assistant district attorney. It was a part-time job, but it bolstered his income. Phil Carlton, another law-school classmate, says Smith’s reputation quickly took shape — aggressive but controlled. Fight hard, but lose well. “First off,” Smith explains, “these are cases, not causes. My high-school coach used to say I was the most competitive person he’d ever met. That in some ways has been the bane of my existence. But it also has been an element in whatever success I’ve had. Still, I don’t believe we’re in court to take scalps.” As a defense attorney, Carlton adds, “law-enforcement agents and prosecutors liked him because he shot straight. Some lawyers just want to talk macho — to get another notch on their pistol. Wade was more interested in results.”

After also clerking under Higgins, Roger joined the firm in 1968, probably surprising some in the family. “The last fight we had, Wade had gone off to college. He came home for the weekend, and we got in a fight at the kitchen table, Saturday at lunchtime. Mother and Dad stood there horrified, and Dad tried to pull us apart.” Growing up, their relationship teetered between rivalry and rapport, envy and admiration. But as partners, they clicked, another reason for their success. “Truth is,” Wade says, “he’s as competitive as I am, and certainly over the years I’ve stepped on his toes and he’s stepped on mine. But I’ve always been his best champion, and he’s been mine.”

Roger says their scraps were typical of brothers only 31/2 years apart. “As the years go by, you just spend all your antagonism. Wade was older, but I always wanted to be included in everything he did.” They slipped into a pattern that persists today. They often team up in research and in the courtroom. “We’ll sit down with a case for days, thinking and reviewing documents,” Wade says. “Then we’ll say, ‘All right, you take the opening, I’ll take the closing.’ ”

Wade Smith was elected to the N.C. House of Representatives in 1973 and again in 1975 before returning to law full time. “One of the big questions,” Terrence Boyle says, “is why he remained in law rather than a high government position.” One reason might be that law pays him and his firm very well — $300 to $500 an hour, with a case like Phipps’ often running $300,000 or more. When he goes to trial, it is often with high-profile cases.

In 1978, he won acquittal for Betty Lou Johnson, charged with first-degree murder for killing her husband, a Raleigh physician. It was one of the first successful uses of spousal abuse as a defense. The following year, he paired with a wild-haired Philadelphia lawyer named Bernie Segal to defend Jeffrey MacDonald, a boyishly handsome Green Beret doctor accused of stabbing his pregnant wife and two daughters to death at Fort Bragg — then stabbing himself.

Prosecutor Jim Blackburn alleged that MacDonald had used his medical knowledge to avoid vital organs and arteries to disguise the crime. “The stakes were extraordinarily high,” Blackburn recalls. “MacDonald had two of the best defense lawyers in the nation. But it was my firm belief that if you’re in a house where somebody dies and you’re the only one who lives, you’d better have one hell of a good explanation.” Smith and Segal argued that hippies chanting “acid is groovy, kill the pigs” had attacked the family. They faulted lax police work, claiming fibers found in the wife’s hand but nowhere else in the house and a mysterious woman whom police had spotted nearby after the murders as evidence of intruders.

When the defense rested, each side was given three hours and 15 minutes for closing arguments. “Bernie took all their time,” Blackburn recalls. “Wade never got to speak. So I walked over and give him 10 minutes of our time. He has the uncanny ability to make a jury think. ‘You must know he could never have raised his hand 30 times and brought down an ice pick or knife into the body of his children.’ ” As the clock ticked, Blackburn began to regret his generosity. “If he’d had 10 more minutes … ” Smith ran out of time, and MacDonald, in what Smith says ranks as the major disappointment of his career, was convicted.

A year later, Blackburn faced Smith again, prosecuting Robert Ward for disposing of 30,000 gallons of oil containing carcinogenic PCB by spraying it on roadsides in 14 Tar Heel counties. Exhausting his juror challenges, he faced having to accept one who clearly had made up his mind to acquit Ward. “Wade says, ‘Judge, a year ago Jim gave me 10 minutes for my summary. I’ll give him one of my challenges.’ Nobody wants to win more than Wade, but he wants to do it right.” Ward was acquitted, though he was later convicted on federal charges.

Fourteen years later, Blackburn and Smith were in a courtroom together again. After the MacDonald conviction, Blackburn’s fortunes had soared. Appointed a federal prosecutor, he had scored win after win. In private practice, he became known for his flashy lifestyle. Inwardly, he was slipping deeper into depression, overwhelmed by unachievable expectations of himself. “I was not,” he says, “a well puppy.” In 1993, he was charged with embezzling $234,000 from his law firm, Smith Helms Mullis & Moore. His first call was to Wade Smith.

Smith sent him to a psychiatrist, who admitted him to Duke hospital. “Wade said, ‘I want you to read the Sermon on the Mount over and over.’ He said, ‘I want you to accept responsibility. I want you to come to peace with yourself.’ I pleaded guilty to every count against me — no plea bargain, no nothing. It was insane. But it was the best thing I ever did. In the end, it set me free.”

The door opens, and the 12 jurors file into the courtroom, shuffling sideways like crabs to reach their seats. The judge asks if they have reached a verdict. In the front row of spectators, on the scarred oak bench, Bob Scott leans on his cane. The courtroom falls silent.

One after another, the judge reads the charges: perjury, aiding and abetting perjury, subordination of perjury, obstruction of justice and conspiracy to obstruct justice. Smith shows no emotion. He is accustomed, he had said earlier, to defending celebrities and unpopular clients, both innocent and guilty. “They’re like all other people. They get no breaks, and they are probably more difficult to represent because judges and juries are reluctant to give them breaks others might get. I know what I’m supposed to do as a lawyer, and that is to give this person everything our founding mothers and fathers guaranteed they should get. That’s all I can do.”

In criminal-defense work, it’s often what might happen that matters most. Weeks after the Phipps trial, Chapel Hill lawyer David Rudolf, another member of this year’s Legal Elite, reflected on that point. Two of his most notorious clients — Carolina Panthers wide receiver Rae Carruth, accused of masterminding his pregnant girlfriend’s death, and Durham novelist Mike Peterson, charged with murdering his wife — were convicted and sent to prison. Both could have faced death sentences. “You measure your success by the outcome compared to what could have happened absent your efforts. That’s a whole different calculus.”

Fresh from defending Peterson, Rudolf had followed the Phipps trial from a distance. “Wade and Roger faced a very uphill battle.” Three of Phipps’ closest associates had pleaded guilty and testified against her to get more lenient sentences, forcing the Smiths to attack their credibility. “Not only did you have witnesses who’d turned, they were close personal friends. The perception among lawyers is, Wade and Roger did as well as anyone could possibly hope” — he pauses — “under the circumstances.”

Meg Scott Phipps, the foreman of the jury reads, is guilty on four of the five counts against her. Wade Smith gives her a brief hug, and a jailer leads her away. A few weeks later, she pleads guilty to similar federal charges. For causing one of the worst political scandals in North Carolina history, she will be sentenced in March, probably to five years in prison, the minimum allowed. Not bad — under the circumstances.

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