Category Archives: NC Lawuers

Beyond artificial intelligence – the power of giving the ugliest criminal a fair trial

mcmillanRaleigh criminal defense lawyer Robert McMillan, Jr. is profiled in Attorney at Law Magazine.

He is quoted there as saying,

I set out to treat every case, number-writer, bootlegger with dignity and respect and making sure that the rule of law applied to the number-writer or the prostitute or the bootlegger just like it applied to the most serious crime. Every case becomes a part of the body of the law, like common law and each of those persons is entitled to a fair trial and if they don’t get a fair trial, the system is collapsing.

And,

I consider myself a law abiding, church going, conscientious citizen but I don’t have any qualm at all about the importance of giving the ugliest criminal a fair trial in court. I believe every human being is precious and I believe every human being has something divine in him.

Powerful and noble.

Can artificial intelligence do that? This is beyond artificial intelligence. It may not be intelligent at all. But it is righteous.

Lawyers, hummus and sweet potatoes – Greensboro Farmers Curb Market

Greensboro Farmers Curb MarketThe day before Thanksgiving is a great day at the Greensboro Farmers Curb Market .  A great day for sweet potatoes.

Greensboro’s Farmers Market was established in 1874 by the City of Greensboro which was then emerging from Reconstruction with a freshly vibrant economy. Greensboro’s mayor was Cyrus Mendenhall, brother of Guilford College’s Nereus Mendenhall.

Cyrus Mendenhall was one of a group of Greensboro lawyers (another was his friend, school mate and business partner, John Motley Morehead) who were at the time creating new civic, business and governmental institutions, one after another. Mendenhall was a lawyer, banker, insurer, manufacturer, cotton broker and an organizer (with Morehead and others) of the North Carolina Railroad. As Mayor of Greensboro, Mendenhall established North Carolina’s first graded schools, the Mayors Court (a precursor to later municipal courts), city streets and sanitation works, free vacinations for local citizens, and the City-owned farmers market.

Today, Greensboro’s Farmers Curb Market is among only a few tax-exempt farmers markets in the country. The IRS views most farmers markets as merely marketing arms of participating farmers, and refuses to find anything other than a private, for-profit purpose in them. But the Greensboro Market has been a municipal enterprise from its 1874 beginnings. When the Market was reorganized recently as a stand-alone organization, Brooks Pierce nonprofits lawyer Bob Saunders drew on this history (and his own legal prowess) to secure 501(c)(3) status for it. One of few.

So, yesterday I stood on tax-exempt ground, in search of sweet potatoes – and there appeared a recipe for sweet potato hummus. As if speaking to recent concerns, this one calls for chickpeas and sweet potatoes in equal measure. (Others may draw the geopolitical inferences.)

Russell and Jennifer Farlow of the Farmers Market and Farlow Farm in Archdale (2062 Ebenezer Church Road) advocate for this tax-free hummus. The verdict is not yet in from the test kitchens. Savory or sweet?

Chickpea/Sweet Potato Hummus

2 medium sweet potatoes (baked, peeled and cooled)
3 tablespoons olive oil
2 cups cooked chickpeas (or one can of chickpeas, rinsed, drained and briefly microwaved)
3 tablespoons tahini
3 cloves garlic, peeled
Juice of 1 lemon
Zest of ½ lemon
Ground sea salt, to taste
1 ½ teaspoon cayenne pepper (start with less, season to taste)
½ teaspoon smoked paprika
¼ teaspoon cumin
Combine all ingredients in a food processor.

Food processors, tools of synchronicity.

Grady Barnhill: premier lawyer, from Whitakers in a unique line of great lawyers

Grady Barnhill died last weekGrady Barnhill Jr. He was among North Carolina’s premier lawyers and, one surmises, the greatest litigator Whitakers has ever produced, although he made his career in Winston-Salem.

I knew Grady from about the time I began to practice in Greensboro. Early on, I learned that he grew up in Whitakers, which is just a few miles from Leggett where my mother was from, and even closer to Gethsemane where my father farmed. To my regret, I never divined whether Grady lived on the Edgecombe County side of town, or on the Nash County side. (For our international readers, these are North Carolina places whose significance is profound although not readily explained.)

Grady was a partner and leader of Womble Carlyle Sandridge & Rice, the great Winston-Salem law firm. He was the archetype of a litigator.

He was determined, tenacious, and tough as a root – and he was realistic, client-focused and (at least in my experience) totally devoid of nonsense. He was about resolving cases favorably for clients, not playing lawyer games. I admired him. Our profession was much the better for him.

Grady’s death calls to mind something I wonder about from time to time. How is it that so many exceptional lawyers have come from the small towns along Edgecombe County’s western border? Whitakers, Battleboro, Enfield. Originally, all three towns were part of Edgecombe. Enfield was peeled off when Halifax County was formed. Whitakers and Battleboro, like Rocky Mount, sit directly on the county line, which was established in the 19th Century by pushing Nash County’s boundary to the east (said to have been done in order to dilute the African American vote). The Wilmington & Weldon Railroad had been routed up that path when the builders of the railroad agreed to move their tracks east in order to attract funding from Tarboro and Edgecombe investors. The county line was later moved to the railroad.

Anyway, what remarkable lawyers came down that line:

  • from Battleboro: William Horn Battle, legislator, Supreme Court reporter, judge, justice, North Carolina’s first revisor of statutes, and founder of the UNC law school;
  • from Enfield: James Edward O’Hara, North Carolina’s first African-American lawyer and second African-American Congressman, together with three chief justices of the North Carolina Supreme Court (Joseph Branch, M. Victor Barnhill, and R. Hunt Parker); and
  • from Whitakers: Grady Barnhill, exceptional trial lawyer, exemplary professional, and key builder of a great and enduring North Carolina law firm.

A Fable of Women in the Law

Tabitha Ann Holton’s story should be a movie. The only problem would be restraint. It’s the Zero Dark Thirty and Argo problem. Should factual accuracy stand in the way of fabulism?

Tabitha Ann Holton

Tabitha Ann Holton

The South’s first woman lawyer, Tabitha Holton, was the child of religious dissenters who settled in central North Carolina. Her father was “read out” of his Quaker meeting. He was educated as a lawyer but became a Methodist Protestant minister. Ultimately, he was too outspoken even for that anti-hierarchical and anti-slavery denomination and he led in forming an even more radical one.

Tabitha was educated at Greensboro Academy. She watched as her brothers studied law and then, in January 1878, she applied for a license herself, alongside her brother Samuel. But, the relevant North Carolina statute limited the practice of law to “persons” and so there was a controversy about whether that term included women.

At the time, only six states had admitted women to practice law, and roughly a dozen women had been licensed in the entire country. None in North Carolina; none in the South.

North Carolina’s Supreme Court asked for oral argument. The newspapers took up the issue. Iconic figures aligned on each side: William Horn Battle  for tradition vs. Albion Tourgée for Tabitha.

Battle was the archetypical Southern CONSERVATIVE; Tourgée, the RADICAL. Tradition vs. change. What price progress?

William Horn Battle

William Horn Battle

Battle was a Confederate planter raised in Edgecombe County in the East. He had been a judge and Supreme Court justice, a cotton mill owner, banker, high church Episcopalian, scholar and founder of the UNC law school. He was a mighty defender of common law pleading.

Tourgée was a Yankee and former Union Army officer who had moved south after the war to Guilford County in the Piedmont. He was reviled as a carpetbagger and had recently relocated from Greensboro to Raleigh in order to escape the rancor of Greensboro’s white community. He was a failed manufacturer and nurseryman, a respected legal scholar, a founder of the North Carolina Republican Party, a popular author, a judge, the principal draftsman of North Carolina’s Constitution of 1868 and a crusader for racial justice – the originator of the phrase “color blind justice” and plaintiff’s counsel in Plessy v. Ferguson. He championed Code pleading.

Battle blasted: “No Southern lady should be permitted to sully her sweetness by breathing the pestiferous air of the courtroom.”

The Greensboro Patriot rejoined: “Blast the prejudice that puts women down as only fit to be men’s playthings!”

Albion Tourgee

Albion Tourgee

In the end, Tourgée mounted a compelling argument in which he cited persuasive points and authorities, including Battle’s own legal treatise.

At the center of the swirling controversy was a demure but determined Quaker/Methodist maid – one who knew the law cold. Bar exams at that time were conducted orally by Supreme Court justices. Tabitha aced hers.

The Court ruled on the spot that she should be licensed. Tabitha marched home to Guilford County, then off in triumph to private practice in partnership with her brother in Dobson. The sun set slowly over the hills of western Surry County.

But wait. There is an epilogue. Tabitha practiced law only for eight years before she succumbed to tuberculosis at age 33.  After her death, a handbill was distributed in Dobson. In part, it read:

Tabitha A. Holton, noble daughter,

Rest thou in thy immortal triumph. The power of thy genius has broken the iron bands of brutality which had been rivited [sic] for ages upon thy sex. No more can the barbed shaft of prejudice and envy reach thee in thy eternal repose. Thy genius stripped DEATH of all terror.

First in all the Sunny South to claim, and obtain, the full rights of womanhood. Death has crowned thy works; but a short space of time did eternity allot for thy mortality.

Tabitha was returned to Guilford County and laid to rest with her family in the cemetery at Springfield Meeting House. Her headstone reads, “Granted license in practicing law by the Supreme Court of N.C., January Term 1878, Died June 14, 1886.”

* * * *

Almost every detail set out above is factually accurate. The principal variance is that while William Horn Battle is acknowledged to have opposed Tabitha’s admission and made the statement quoted above, there is no confirmation that he was present at Tourgée’s argument before the Supreme Court. (See the Kelley Harris paper, Tabitha Anne Holton: First in North Carolina, First in the South  for  what can be confirmed.)

But this is after all, a fable – of tradition, change, and the role and status of women.

And, there is a broader point to be made: that, burdened by the weight of centuries of tradition and beset by towering cultural archetypes, Tabitha was a hero; and the legal profession provided the characters, the instruments and the path for her quest.

Major social change was achieved by moving from a general principle to its application in new circumstances. The way forward was guided by relevant points and authorities; and, ultimately, the victory was won by Tabitha’s unquestioned qualifications on the merits of her particular case.

A fable, I say. And a movie.

Lawyers Connect Separated Communities — George White & James City NC Controversy

James City is across the river from New Bern (North Carolina). It came into being during the Civil War, when Union soldiers settled runaway slaves on the land.

James

James City, NC, across river just south of New
Berm

Over time, the area developed into an African American enclave with its own school, churches and police station. “Few whites, and no Democrats, dared set foot in the town without an invitation.” In some part, George White established his law practice and reputation on representing residents of James City in claims against the James City Ferry Company, in which he bested an array of better known white lawyers.

Following the war, a complicated real estate dispute developed. The original owner of the land underlying James City transferred his interest to a New Bern purchaser. The Supreme Court confirmed the transferee’s title. Over time though, the black settlers had built residences and other improvements on the land. They paid no rents.

James City residents

James City residents

In 1893, things came to a head. The residents offered to purchase the land. The owner refused to sell, proposing leases instead, which the residents rejected. The Craven County sheriff was dispatched to evict the residents. The residents threatened to “fight to the death.”

The residents appealed to the Governor, and then New Bern’s mayor asked him to send in the Militia, which he did. The Governor himself came to New Bern with the troops, accompanied by journalists and a group of concerned black leaders.

George White, by then maintaining residences in New Bern and Tarboro and serving as District Solicitor for the Second Judicial District, was one of three African American leaders who intervened to mediate the dispute. (The others were former Enfield and then New Bern lawyer and former congressman, James O’Hara; and Dr. Ezra E. Smith, a Goldsboro resident, former head of the normal school in Fayetteville for blacks and former U.S. Ambassador to Liberia.)

Ultimately, with the assistance of these mediators, James City’s residents were persuaded to accept terms proposed for leases and rentals.

White’s biographer observes

It was a difficult moment for George White, who knew the settlers well and probably sympathized with their plight. As a prosecutor, however, he was sworn to uphold the decision of the courts, and as a leader of his race, he was determined to prevent bloodshed at all costs. His proven skills as a legislative leader and mediator were instrumental in accomplishing both tasks. That he was asked to assist at all was a sure sign of his growing stature among fearful white leaders, and the peaceful settlement of the dispute only strengthened his reputation for effectiveness under pressure.

No longer just a good lawyer who happened to be black, George White was now a good man to depend on in almost any situation. He was a seasoned accomplished politician, a veteran public servant. And his dreams were no longer bound by the cautious limits of his youth; at forty-one, he had come of age, and his political future seemed boundless.

[Benjamin R. Justesen, George Henry White, An Even Chance in the Race of Life (LSU Press 2001) pages 148-150.]

To pound the point home: This is a vivid  instance of a lawyer spanning the boundaries between different communities. Forging connections. You can spin out the elements of it for yourself and you can take it as a model or not, but here is the historical raw material to start from. 

The Bar: a Community of Rivals

In the early and mid 19th Century, the North Carolina Bar was a much tighter community than it has become since.

Image

Bishop Joseph Cheshire

Tarboro lawyer (later, Episcopal bishop), Joseph B. Cheshire described the early community of North Carolina lawyers and hinted at the later impact of a  disruptive technology (railroads), as follows:

The old lawyers and judges were more social and lived more together than members of the Bar do now. The country was more thinly settled; there were fewer people and fewer lawyers, less office business, and relatively more litigation and more of forensic controversy. Each lawyer, as a rule, attended all the courts in his district, or at least most of the terms of the Superior Court. And they usually, before the days of railroads, drove in company in their buggies or gigs or rode horseback from one country town to another with much sociability and joviality as they went “jogging along,” or as they lodged together in the old taverns by the roadside or in the county towns.

[Cheshire, Joseph Blount, Nonnulla: memories, stories, traditions, more or less authentic (The University of North Carolina Press 1930) page 41.]

Connections among members of the Bar continued to attenuate steadily throughout the 19th and 20th centuries, both as the result of the vast expansion of “office business”  and reflecting the concomitant rise of law firms and 20th Century technologies (automobiles, telephones) – and that has had its effect on the role and practice of lawyers.

Curiously, the same tools that, today, are driving globalization (and practicing law over greater and greater geographic distances) may also be altering the trend of fewer connections among lawyers. Connections of new kinds are coming into being. 21st Century technologies and practices may be enabling new forms of social and professional collaboration.

Bishop Cheshire’s original 19th Century model matters, though. Understanding law practice as, fundamentally, the conjoint work of a community rather than a ceaseless contest of rivals, will improve our profession’s contribution to the wide world.

How is that done? Well, that’s one of the most interesting facets of what’s happening now. It is happening though – evolving over time –and, if you read all of the earlier posts here, you’ll get some sense of it.

19th Century Black Practitioner’s Vision of NC Lawyers

Tarboro lawyer George Henry White was one of only a handful of African American lawyers in North Carolina during the entire time he practiced here (1879 to 1900). He was the only black member of Congress in the 55th and 56th Congresses (1898 and 1900), representing North Carolina’s Second District.

In 1899, White was two years away from leaving Congress and moving out of North Carolina, having famously concluded that he could no longer remain in North Carolina and “be treated as a man.” His decisions to leave came as the result of the 1900 election in which voters approved amending the North Carolina Constitution to impose literacy tests as preconditions of voting.

The 1900 election is now generally viewed as having been “grossly fraudulent.” It followed a campaign in which White himself, and his family, were attacked based on false, racially inflammatory charges advanced by political opponents including many North Carolina newspapers led by Josephus Daniels and the Raleigh News and Observer. Amending the Constitution marked a final step in the disenfranchisement of North Carolina blacks and the establishment of white supremacy. White decided in response to leave the state, and publicly advised that other African Americans do the same.

Understanding that White’s entire career as a lawyer until 1900 had been as one of only a handful of black practitioners in North Carolina and the country – and knowing what was to come – makes White’s observations about the role and character of lawyers compelling, if not inspiring. Speaking to Howard University law students in March, 1899, he said,

The lawyers in every community are the leading lights, the moulders of public sentiment. This is true in the common councils of the cities, and also abundantly true in the management of state affairs.

[Lawyers tend to become legislators because of their training, but also because of their desire to serve the community.  A lawyer is a] useful, intelligent and industrious citizen, [who] in order to succeed permanently, must be an honest and admirable man; must deal fairly and squarely with his clients.

Following the 1900 election, White was interviewed by the New York Times. He explained his decision to leave North Carolina and also invoked his experience as a North Carolina lawyer.

I cannot live in North Carolina and be treated as a man. In my intercourse with the bar of North Carolina in the past I was never made to feel that I was on a different plane to anyone else because I was a colored man, but I cannot feel so any longer.

It takes some digging, but how good to be able to extract from this sorry story an essentially uplifting vision of the profession.

[Quotation from George Henry White, An Even Chance in the Race of Life, Benjamin R. Justesen (LSU Press 2001), pages 50-51. Also see Eric Anderson, Race and Politics in North Carolina, 1872–1901: The Black Second (Baton Rouge: LSI Press, 1981), page 307.]