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.
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.
* * *
THOUGH BROWN & WILLIAMSON 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.
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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.”
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