CHAPTER 28
PITCHFORKS ON THE DOORSTEP OF JUSTICE
Wherever there is a crowd, there is untruth.
—Søren Kierkegaard
On Tuesday, April 24, Mike Kaeske and Mark Anderson deliver their closing arguments in front of a standing-room-only crowd. For Kaeske, the goal of the closing is to give the jury a target, a weapon, and the moral persuasion to use it. He hits all three points with his trademark panache, especially on rebuttal, after Anderson yields the floor. Equal parts oratory and performance art, the rebuttal is all gut and feeling and extemporaneous rhetoric, unlike the initial closing, which is choreographed to address issues of fact and law. It’s one of the advantages that the adversarial system gives the party bearing the burden of proof.
The plaintiffs get the last word.
Mike Kaeske kills it. He brings the long war into the courtroom, distilling the jury’s decision down into binary choices—the hog barons versus the common folks, human dignity versus the god of Mammon. “Today, you are more powerful than the governor of North Carolina,” he contends. “You are more powerful than the attorney general of North Carolina. And you are more powerful than that corporation. You can make a decision today to deter them from this conduct, to speak to them in terms that they can understand so that they will make this change, for the citizens of this state and for our environment. You’ve heard the evidence that allows you to do it, to fight for these people. We have been fighting for these people. It’s your turn to fight for these people.”
When he sits down, there are tears in the gallery, but Mike Kaeske’s eyes are dry. He’s left his heart on the field. So has Mona. So has everyone on the team and all their clients. Now they must wait, their fortunes in strangers’ hands. Whatever the jury comes back with, it won’t be the end of the story. It will only be the end of the beginning. In a few weeks’ time, all of them will be back in this courtroom watching Mike deliver his opening to a new set of jurors in the McGowan trial. A month after that, they will try Artis, then Gillis and the second McGowan group. Without the cumulative power of multiple verdicts, Smithfield will never kneel. But this first verdict matters. It’s the bellwether of the bellwethers.
What happens here will set the tone for everything else.
The jury deliberates for nearly two days. Mike and Mona and the rest of the team shuttle between the courthouse and the apartments, busying themselves with trifles and staring at the clock. The void of quiet gnaws on them. They see in the jury’s request for clarification about the difference between compensatory and punitive damages the chance of a nominal verdict, a small-dollar award that Smithfield would surely interpret as a victory. But no one dares to speculate, at least not out loud. When the jury is deliberating, Mike Kaeske is as superstitious as Wade Boggs eating his pre-game chicken. Predictions are verboten. Only a fool would tempt the Fates.
The verdict lands just after two o’clock on Thursday afternoon. Per the form Judge Britt sent back to the jury room, the verdict has a four-question structure. The first question derives from the Good Neighbor rule: “Did the defendant substantially and unreasonably interfere with the plaintiff’s use and enjoyment of his or her property?”
In the blank by the name of each plaintiff, the jury answers “YES.”
On the right side of the gallery, where the neighbors and lawyers are holding hands and waiting statue-like, fingers squeeze and grips tighten with joy and anticipation.
The judge continues: “What amount of damages, if any, is the plaintiff entitled to recover from the defendant?”
In the blanks, the jury foreman wrote: “$75,000.”
For the neighbors, this is vindication. The jury saw them. It heard their pleas for justice, and it delivered. It’s also a tidy sum of money, more than most of them have ever seen.
Mike Kaeske, however, feels the sting of disappointment. It could have been worse, but it’s hardly auspicious. Without any framework to quantify the harm, the jury conjured a number out of thin air. Perhaps they tried to guess the assessed value of the neighbors’ homes. Maybe they speculated about the salary of a teacher or social worker in Bladen County and doubled it. Wherever the number came from, they set the bar low, not high. Kaeske sees that as his own mistake. He didn’t give them a foothold in his closing. He could have made a numerical ask, but he didn’t. He vows not to make that mistake again.
Judge Britt reads out the third question on the verdict form: “Is the defendant liable to the plaintiff for punitive damages?”
Beside each name, the jury replies “YES.”
At the sound of the final question, the air in the courtroom seems to crackle, as if charged. “What amount of punitive damages, if any, does the jury in its discretion award to the plaintiff?”
In its discretion. With those words, the law places a sledgehammer in the jury’s hands. Punitive damages, by design, are supposed to be unconstrained. They are intended to channel a jury’s wrath, to allow a group of citizens to punish the most egregious wrongs with a blow heavy enough to inspire repentance. But these days, the hammer comes with an invisible chain. At the behest of corporate lobbyists, many state legislatures have tethered punitives to compensation, limiting the dollar value of a jury’s punishment to three times its compensatory award. Jurors, however, have no idea of this, and the lawyers are not allowed to inform them. The judge imposes the cap after the jury is dismissed. An argument could be made that this is a violation of due process, that leaving the jury in the dark undermines both the purpose and the effect of the exercise. But that argument has yet to prevail. So juries wield the sledgehammer in ignorance. What is the price of justice? they ask themselves. What level of pain will compel change?
For each neighbor—Joyce McKiver, Daphne McKoy, and on down the list to the last—the jury answers, “5,000,000.”
Five million times ten. Fifty million dollars.
For the plaintiffs and their lawyers, the verdict is a rhapsody, an electrifying blend of high notes and thrumming chords that brighten their faces and bring relief in a rush. For years, Mona and her team at Wallace & Graham have been saying, “Just get us to a jury. We want them to tell us if we’re right.” This verdict is a validation.
Elsie Herring feels the same way when she hears about it from Naeema Muhammad. She was in the courtroom for the closings, but since she’s not a plaintiff in the McKiver trial, she returned home to wait for the jury’s decision. On the afternoon of April 26, she’s standing in her nephew’s yard, across the street from her house. It’s a bright spring day, not quite warm, but warming. The air is clear. The hog farmer isn’t spraying. Elsie takes Naeema’s call because she has an intuition that it might be about the trial. When she hears about the jury award, she feels a little thrill. Fifty million dollars. At last, a measure of justice.
John Hughes hears about the verdict by text message from Mark Doby. Mark doesn’t give him much, just a sketch of the numbers. But that’s enough. He feels a profound sense of satisfaction. The verdict affirms both the moral significance and the value of the case. The cap on punitives is a problem. It will constrict the total award to just over $3 million. But even with the reduction, the judgment is explosive.
Down east in hog country, the verdict lands like a well-aimed mortar shell. Amid the smoke and wreckage, the friends of Smithfield gnash their teeth. They feel as if they’ve been cheated, as if Judge Britt denied them a fair trial and a jury of city slickers condemned their way of life. A lot of folks seem not to appreciate the statutory cap. Fifty million is the headline that ran in the News & Observer, and fifty million is what sticks in people’s heads. To the subjects of the hog kingdom, a $50 million award for only ten plaintiffs, when there are nearly five hundred more waiting in line behind them, is like a midnight visit from the Ghost of Christmas Yet to Come. That’s $2.5 billion in potential exposure.
There’s a chance these lawsuits could bring down the sky.
The day after the verdict is read, Smithfield issues a scathing four-page press release. Instead of delivering boilerplate protestations of innocence like a typical corporate defendant, the company goes on the offensive, indicting the plaintiffs’ lawyers, the judge, and the judicial process itself. It decries the lawsuits as a “money grab by a big litigation machine” and an “outrageous attack on all animal agriculture,” including “thousands of independent family farmers.” And it castigates Judge Britt for “fundamental unfairness.” In an unprecedented move, Smithfield attempts to relitigate some of the judge’s rulings in the court of public opinion. At least, that is how the statement reads on its face. Mona and Mike soon adopt a darker view: Smithfield hopes to influence the thinking of future jurors.
For the most part, the media ignores the hog giant’s attack on the judicial system. But others within the Big Ag firmament soon join the outcry. The Pork Council rails against the lawsuit, calling it “an ongoing, coordinated and unfounded attack on agriculture that endangers thousands of jobs and economic activity across the state.” In a blog post, NC Farm Families asks, “How does this end? The answer to that question matters to the lives of thousands of farmers. And the wrong answer could fracture a pillar of North Carolina’s economy.” Indeed, no less a personage than the U.S. secretary of agriculture, Sonny Perdue, calls the McKiver verdict “despicable,” despite admitting that he is unfamiliar with the case. “It’s horrible if that’s the kind of money that people are awarding,” he tells a gathering at the USDA. “I feel certain that kind of award has to be overturned.”
It’s not clear whether he’s auguring an intervention by the Fourth Circuit Court of Appeals, but the idea that the verdict might not be written in stone, that it might be thrown out by a higher—and friendlier—authority, resonates in febrile minds down east. Before long, the notion of “waiting for the Fourth Circuit” will become a kind of invocation, a prayer among the hog country faithful for shattered stars to realign.
Two weeks after the Perdue denunciation, Boss Hog’s bedfellows in the state legislature waltz onto the field again. According to Brent Jackson and Jimmy Dixon, the law of nuisance is still far too accommodating when it comes to agricultural operations. They champion yet another revision to the Right to Farm Act.
The bill—codified as S711—takes the universe of potential farm nuisance claims and shrinks the legal funnel until the odds of any particular claim surviving a motion to dismiss are about the same as winning the lottery. Where before neighbors had three years to file a claim after the onset of a nuisance, now they have only one year, and the trigger for the limitations period isn’t the appearance of the nuisance but the day the lights went on at the farm, unless some “fundamental change” occurs, altering the farm’s operations later on. Since upstart hog farms are effectively banned in the state, and since the language of the “fundamental change” exception would exclude almost every imaginable modification in farming practice, it is hard to conceive of a future nuisance claim that would not be gutted in the S711 abattoir.
But this is precisely Jackson and Dixon’s objective. The bill explicitly references the hog farm litigation and criticizes Judge Britt for erroneously interpreting the law. The bill also takes aim at punitive damages, limiting their availability to instances in which the farm at issue has been subject to a criminal or civil enforcement action by the state or federal authorities. There’s more, too. The bill would place a substantial portion of the state’s hog farm records inside a locked vault, prohibiting neighbors, attorneys, journalists, and the public from conducting the sort of archival review that delivered Mona’s team so many critical nuggets of evidence. For future plaintiffs, there is no plausible way forward.
This naked act of legislative protectionism is such a windfall for the hog barons—and Big Ag in general—and so callous toward ordinary citizens that it compels John Blust, the yeoman hero of the battle over HB467 the previous year, to deliver a remarkable fourteen-minute rant in the House chamber when S711 comes up for its third reading.
“We are taking a side,” he fulminates. “We’re saying that we in the legislature, we know better than the court, we know better than the facts, we know better than the law. We’re going to protect one litigant, and we’re going to say to the other, ‘You don’t matter. You don’t count.’ And it’s because the one side has the ear of the powers that run this institution.”
Blust indicts his own colleagues, tossing out adjectives like “biased” and “wicked” like grape shot and arguing that the level of coordination between the House leadership and the pork industry is emblematic of a legislature that has been compromised.
He is dumbfounded, too, that the bill’s proponents would cast aspersions at Judge Britt, yet refuse to admit their own manifest unfairness. At the core of his disgust is the fact that none of his Republican colleagues will tell him what Judge Britt did wrong. They will accuse the plaintiffs of committing perjury on the stand, but they won’t say how exactly the judge subverted the law. Nor will they explain how S711 offers a necessary correction. “It’s an emotional play,” he contends. The bill’s sponsors have couched it as protection for family farmers and suggested that anyone who doesn’t vote for it is a bad person.
Blust also takes aim at Jimmy Dixon’s anti-lawyer screed. “I’m a little taken aback that the politicians are casting stones at the lawyers,” he says with a trace of humor. “We are the People’s House and the People’s legislature, and we ought to do business in a deliberative fashion that befits the trust that’s been bestowed upon us by the People. That ought to be an ironclad guarantee that we take seriously at all times.”
Directing his frustration at the House Speaker, Tim Moore, he says, “This bill has never been explained.” The law already favors Big Ag. He draws on a biblical analogy. After Moses told Pharaoh to let his people go, the ruler of Egypt responded by forcing the Israelites to make bricks without straw. That’s what Smithfield’s allies are doing here.
Before he yields the floor, Blust offers his colleagues a better way. Why not pass a law mandating that Smithfield implement the waste-treatment technology that would bring an end to the nuisance itself? “That’s the best way to stop these lawsuits going forward,” he opines.
But the House isn’t listening to John Blust. It is in thrall to Jimmy Dixon, as the Senate is to Brent Jackson. Both chambers pass S711 with overwhelming support, and then, when the governor has the audacity to deploy his veto pen, Smithfield’s surrogates muster the votes to override it. Though none of the legislators actually says it out loud, their message reverberates in every nook and cranny down east:
“If you live near a polluting hog operation or poultry operation or dairy farm and you haven’t already filed suit, you’re shit out of luck.”
Having poisoned the well of future litigation, the hog kingdom turns its cannons once again toward Judge Britt’s courtroom. In an interview with the Wall Street Journal, Ken Sullivan, Smithfield’s CEO, calls the lawsuits an “existential threat” and suggests that if the verdicts keep coming, Smithfield may be forced to leave the state.
To outside observers, including the plaintiffs’ legal team, the threat rings hollow. Just ten months ago, Smithfield announced a new $100 million investment in its Tar Heel slaughterhouse. The company’s fate is economically intertwined with that of North Carolina. North Carolina is the second-largest hog producing state in America, behind Iowa. And North Carolina’s hog farms are closer together—and closer to the slaughterhouse—than Iowa’s. That proximity is one of the efficiencies that animates Smithfield’s production machine. Its facilities are not mobile. They can’t be transported down the highway. They are rooted in the dirt. Leaving the state would undermine the company’s entire business model. Yet down east in hog country, Sullivan’s words sound like an air-raid siren. His threat brings out the mob.
In the days immediately preceding the McGowan trial, the staffs at Wallace & Graham and the Kaeske Law Firm observe strange traffic on their websites and unpleasant comments on social media. They ignore the chatter, imagine it harmless. It is not. It is a low-pressure system over a super-heated ocean. Before long, it will give birth to a storm.
On the first day of the trial, after Mike Kaeske delivers his opening to a new panel of twelve jurors, Andy Curliss, head of the Pork Council, writes a blog post that fuels the frenzy down east. He gives it the title “Eastern North Carolina Is Under Attack” and pushes the rhetoric to the edge. He fingers Kaeske by name, branding him a “Texas lawyer” and insinuating that he is peddling a lie for the sake of greed, a lie that could put hog farmers out of business.
Curliss paints a picture of a region under siege. While Duplin County is “heaven on Earth” to most of its people, he writes, miles away in a distant city, an out-of-state lawyer is slandering hog farmers to line his pockets with cash. And thanks to Judge Britt, the jury will never get to see what life is really like in hog country—the weddings and cookouts, the reunions and ball games, the kids bouncing on trampolines and shooting hoops, all within sight of the hog farms that lie in every direction. “All of that is under attack by the Texas lawyer,” Curliss concludes. “If he succeeds, he’ll win some money. And all of North Carolina will be hurt.”
The post goes viral in hog country.
The following day, June 1, Curliss launches another broadside. Again, he calls out Kaeske by name and throws around the term “Texas lawyer” like a slur. This time, however, he alleges that Kaeske is twisting the facts. The Pork Council’s CEO says it isn’t right for Kaeske to claim that the neighborhood along Hallsville Road (the home of the Farlands and Woodell McGowan) predates Joey Carter’s hog operation, when the only plaintiffs in the trial, Elvis and Vonnie Williams, didn’t buy their property until after Carter launched his operation.
This second post is short and punchy, and it leaves his readers with the impression that Mike Kaeske is a master provocateur and prevaricator. Since most of the Pork Council’s followers aren’t observing the trial, they don’t have the means to fact-check Curliss’s assertions, even if they wanted to. Were they in the gallery, however, they would know that it is Curliss, not Kaeske, who is contorting the truth.
In his opening, Kaeske told the jury that Woodell McGowan’s aunt, Lillie Belle Hall, started selling her land in 1970; that Al Davis and his family built their home in 1970; that Cartha Williams built hers in 1971; that Elaine Carlton moved into her home in 1971; that Linnill Farland built his home in 1971; that David Carter and his family bought their land in 1971 or 1972; that Perry Miller moved into his home in 1972; that Barbara Gibbs built her home in 1973. All of this construction happened more than a decade before Joey Carter built his first hog barn. As for Elvis Williams, he moved to Hallsville Road before Carter expanded his south operation and broke ground on his north operation. His wife, Vonnie, joined him several years later.
These are not twisted facts. They are undisputed facts.
Yet Andy Curliss’s readers believe that a Texas lawyer is manipulating the truth and deceiving the jury. They believe that everything precious in their rural world is under attack. They believe that the largest employer in the coastal plain and the source of so many of their livelihoods might abandon the state if these greedy lawyers keep winning.
In the face of such an incendiary narrative, the people of hog country lash out.
At 8:55 p.m. on Friday evening, the first of June, after only the third day of the McGowan trial, a man by the name of Richard Mole sends an email to Mike Kaeske through his firm’s website: “Stay your sorry ass out of North Carolina, you piece of shit. Get your clients to get the fuck out of here also and never come back. We don’t play with people like you.”
At 7:27 the following morning, Saturday, June 2, the Kaeske Law Firm receives a web message from someone calling himself “American As Can Be.” The subject header is “Pigs” and the return address is obviously fake. The email reads: “Leave Those Pig Farmers Alone Asswipe. We Already Know the Purpose of Your Actions. Once Done It Will Never Be Undone….”
Kaeske’s associates in Texas forward the emails to him in Raleigh, and he shares them with Mona and the trial team. While he’s troubled by them, he’s not really afraid. No one outside their team knows where they are staying. A dedicated assailant could follow them back to their apartments, but it’s hard to imagine the authors of these emails mounting such an operation.
Mona, by contrast, is unnerved. Whereas Mike lives out west, North Carolina is her home. Her family and employees live just up the road in Salisbury. The threats remind her, hauntingly, of something that happened a couple of weeks after the McKiver verdict. Try as she might, she can’t make sense of it. It was a Friday evening, and she was at home babysitting her granddaughters—Whitney’s kids—while Lee was away for the weekend. She and the girls were watching TV together in the family room. Walled in by windows, the room looks out over her backyard. In the distance, through the trees, is a golf course.
Around 9:30, she saw a blaze of lights sweep down the fairway from the clubhouse. A whole line of golf carts stopped just outside her fence and turned as if to paint her house with light. Their headlamps speared the trees and cast weird shapes across the ground. She told her girls to stay put and walked quickly to the side door and out onto the driveway. She looked up the path leading to the golf course and saw that the carts were there too, shining their lights toward her. She went back inside, locked the doors, and called the police. Perhaps it was nothing, just a night game on the course. But she couldn’t be sure. Her office was receiving ominous calls. The Pork Council was spotlighting her firm on the Internet. She knew how much the hog barons hated her. If the Murphy men had an enemies list, she and Mike Kaeske were at the top.
On Monday, Kaeske shows the emails to Judge Britt. The judge takes them seriously. “That’s a direct threat,” he says, in chambers, lawyers from both sides present. “I’ll turn that over to the Marshal and the FBI.”
Kaeske, however, has a broader concern. He’s worried about the sanctity of the trial. He places the threats in context, tells the judge about Andy Curliss’s blog posts, especially the first one, on May 31, which Kaeske likens to a “whistle being blown.” He has reason to believe that witnesses are being intimidated. He tells Judge Britt about a witness who was targeted on social media with one of Curliss’s articles. He recounts the story of another witness, a white neighbor who had agreed to testify about the odor before the man’s daughter, who works for Smithfield, called him—in Mike Kaeske’s presence—and reamed him about it. After the daughter hung up, the man told Kaeske that one of Smithfield’s lawyers had called his daughter twenty-five times since the plaintiffs put his name on their witness list. Under this pressure, the man folded. He told Kaeske he couldn’t testify, not when his daughter and his grandson worked for Smithfield.
Kaeske is also worried about the jurors. The judge instructed them not to read the news or discuss the trial outside the courthouse, but all of them have smartphones and computers and social media accounts. Even if they aren’t searching for information about the case, they could stumble across it. Or, worse, they could receive a targeted Facebook ad from the Pork Council or NC Farm Families. Kaeske reminds the judge that Farm Families was created by Smithfield and the Pork Council and that it continues to receive funding from both.
After laying all of this out, Kaeske asks Judge Britt to take action, to protect the witnesses and jurors from outside influence. He requests that the judge sequester the jury for the next trial on the calendar—Artis. He also asks that the judge use his authority to tone down the industry’s rhetoric. He doesn’t use the term “gag order” because it is freighted with baggage. Most courts refuse to ban parties from speaking to the press and the public out of concern for the First Amendment. But these circumstances are unprecedented. Neither Mona nor Mike has seen anything like this in their decades of legal practice.
As it turns out, neither has Judge Britt.
The judge takes the matter under advisement and directs his law clerks to investigate his options. Little does any of them know that in only a few short days, Mike Kaeske’s worst fears will be realized.
The trial itself will be imperiled.