‘Outrageous’: Marcus Smith lawyers and activists respond to city’s allegations of misconduct

Things are becoming more contentious in the case of Marcus Smith, the Greensboro man killed by city police in 2018 while he was in the throes of a mental health crisis downtown.

As activists continue to call for transparency in the civil suit, the city filed a brief last week in which they allege that the Smith legal team has acted improperly by releasing confidential information to the public, in violation of a protective order and local rules. The city also singled out individuals they deemed too close to the case, accusing the Smith family’s legal team of attempting to try the case in the media. The Smith family’s lawyers, led by Flint Taylor, and activists say that the city’s assertions are “outrageous” and that they haven’t violated any rules. They responded that the brief is another example of the city’s attempt to silence activists and cover up the truth of what happened to Smith.

The city’s argument

On May 12, the city of Greensboro represented by Alan Duncan, filed a 29-page brief that argued that Taylor and his associates acted improperly by distributing depositions and other materials to the public. Among them was a deposition by Mayor Nancy Vaughan and former police Chief Wayne Scott, who was in charge when Marcus Smith was killed by police officers.

“From the start, Plaintiff’s counsel have engaged in a campaign to generate prejudicial pretrial publicity,” the brief states. “In recent weeks this unfortunate effort has accelerated, necessitating the filing of this motion.”

In the ensuing pages, the city accuses Taylor and his associates of releasing confidential material including Vaughan and Scott’s depositions to the public. They also object to the release of expert witness reports including a second chief medical examiner’s conclusion that Smith’s death was a homicide, as well as a recent report by Scott Defoe, a former police officer. Additionally, the city filed a supplement to the brief which alleges that the press conference by Taylor and others on May 13 violated the terms of the suit. Triad City Beat covered the press conference and was cited as evidence in the supplement to the brief.

According to Jonathan Jones, a Durham attorney and former professor of media law at Elon Law School and UNC, the argument the city makes in the brief is twofold. First, they allege that Taylor and the Smith family’s legal team violated an agreed-upon protective order which they say prohibits anyone associated with the case from publicly distributing materials resulting from the discovery process, including depositions. The second part of the city’s brief makes the argument that by forming a close relationship with activists and journalists, Taylor and his team have taken over the narrative of the case in the media and thus the public. The city makes the argument that the Smith side’s use of press releases, press conferences and quotes is creating “prejudicial pretrial publicity,” thus influencing public opinion.

Response by Smith family’s lawyers

Reached by phone on Tuesday, Taylor called the city’s brief “outrageous” and said they were already crafting a response.

In response to the assertion by the city that Taylor and his team inappropriately distributed confidential material, Taylor stated that the material was fit for public viewing because the city had already chosen which portions of the depositions to redact.

“It wasn’t us that made the redactions,” he said. “They can’t have their cake and eat it to. They made their redactions so that no information that they thought was confidential would be publicly released and none of that has been but now, they are trying to throw a blanket over all of it.”

The depositions that were released were recently published in an article co-written by Ian McDowell, who writes for Yes Weekly!, in the Assembly, a new statewide publication. Both depositions include notes that either say portions have been redacted, in the case of former Chief Scott, or state that sections had been deleted because they were designated as “highly confidential” in the case of Vaughan’s deposition.

Taylor also disputes the city’s claim that the legal team is attempting to try the case in the media.

“They’re the ones trying it in the press,” he said. “From the moment they issued that first press release.”

Taylor is referring to is the initial press release put out by the city in which they stated that Smith died after becoming combative and collapsing. No mention of Smith being hogtied, which is what medical examiners have said resulted in his death, was ever included in the press release.

“What they are trying is to shape public opinion in a prejudicial way,” Taylor said.

Jones said that while he hasn’t kept track of everything the Smith family’s lawyers have said publicly, the city’s argument that they are trying the case in the media is going to be tough to prove.

“If there’s already publicity then they’re allowed to respond to that,” Jones said. “And if the other side has made statements, that opens the door a bit for a little more latitude to what they can say….It seems like a consistent ratcheting up from both sides….It doesn’t seem to me, from my outside perspective, that one side alone is generating publicity.”

Jones also stated that it is unusual to sanction a lawyer for public comments.

“It’s pretty rare that lawyers are disciplined on that,” he said.

He said, she said

In addition to alleging that Taylor and his associates have acted inappropriately, the city singles out a handful of individuals whom they claim are working with the Smith family to sway public opinion about the case.

One of the individuals named in the brief is reporter Ian McDowell with Yes Weekly! who has covered the Smith case extensively over the last two years. In the brief, the city takes aim at McDowell, whom they say is “part of a strange symbiotic relationship with plaintiff’s counsel.”

On Monday, McDowell responded to the allegations via Facebook messages.

“Journalists have a symbiotic relationship with information, and there’s nothing strange about it,” McDowell wrote. He notes that if Taylor hadn’t had a symbiotic relationship with reporters in the past, then many aspects of the truth would never have come to light.

Taylor has litigated several high-profile cases including the murder of Fred Hampton, whose life was recently chronicled in the movie Judas and the Black Messiah, the serial torture of Black men in Chicago under former Chicago Police Commander Jon Burge, and the police’s involvement in the 1979 Greensboro massacre in which five protesters were killed by KKK and Nazi members.

McDowell also asserted that he did not feel as though he had acted improperly by reading, reporting on and publishing the depositions by Vaughan and Strader.

“Regardless of the outcome of this litigation, the statements that the mayor, the former chief, the current chief, the officers and the sergeant who conducted the remarkably brief Internal Affairs investigation made under oath need to be public,” he said.

McDowell also clarified an incorrect assumption made by the city attorneys in the brief. Over the course of several pages, the city alleges that the relationship between McDowell and Taylor is inappropriate by insinuating that Taylor feeds McDowell information. However, McDowell stated that he learned that Douglas Strader, one of the police officers who killed Marcus Smith, was hired by the Graham Police department from an activist in Graham, not from Taylor.

“It’s bizarre that the city seems to consider this privileged information,” McDowell said.

Jones stated that he finds the singling out of a journalist in a brief like this unusual but also noted that McDowell does seem to have a close relationship to the Smith family’s attorneys which could be in violation of the code of ethics.

“I do think that’s unusual to cite a particular reporter and their coverage,” Jones said. “It’s an interesting question because it does seem like from an outside perspective, that Ian McDowell has had an inside track on a number of aspects of this story, so the brief seems to be implying that that’s being said to him by Smith estate’s lawyers.

“I don’t think it outright accuses them of doing that, but it makes it pretty clear that they think that’s the logical result,” he continued. “And that very well may be the case and if so, then they have a strong argument that the legal team is perhaps in a grey area on the ethics rules. But it also could entirely be the case that Ian is getting that information elsewhere and coming to the legal team for confirmation or comment and that they are simply being open to him once he’s verified something.”

Another individual named at length in the brief is activist Lewis Pitts, who has been vocal about the Smith case since its inception in 2018. In the brief, the city paints Pitts as an inappropriate actor who is swaying public opinion about the case. The brief also makes the claim that Pitts has had an ambiguous relationship with the Smith family and was even part of the legal team at one point.

Pitts told TCB that he is not on the legal team and he is just an engaged citizen activist. He also rejected the first argument in the brief which takes aim at the distribution of depositions and expert reports by Pitts and activist Hester Petty.

“The only thing that has been given to me or anybody by the Smith legal team is information that they concluded was unredacted by the city and therefore not confidential in any way,” Pitts said.  “Nothing has been leaked to me or anybody.”

What happens now?

The city argues that because Taylor and his associates breached the protective order, which they say prohibits them from releasing depositions to the public, that someone should be held accountable. This could be done in a few ways, they suggest in the brief. One would be for a judge to order Taylor and his team to disclose all of the materials that were publicly distributed. They also suggest the court impose monetary sanctions on the attorneys. The most severe penalty would be for a judge to order an investigation into Taylor’s actions which could lead to additional discipline.

In a contentious case like this one, Jones said sanctions aren’t uncommon.

“These efforts to sanction a lawyer for public comment is difficult and fairly rare,” he said. “It can be dangerous for a lawyer to make public statements, but it’s also fairly rare for them to be punished for it.”

As for whether Taylor and others breached the protective order by releasing the depositions, Jones said the city may have more of a case there.

“I think there is a legitimate argument on both sides,” he said. “I would feel comfortable if I was the city attorney making this motion or I would feel comfortable if I was the defending lawyers for Marcus Smith’s estate as well.”

In the several decades that he’s been working as a public interest lawyer, Taylor said that this turn of events by the city is some of the most aggressive that he’s seen.

“I’ve been doing this for over 50 years,” Taylor said. “I’ve been fighting some very important cases and this, in some ways, is the most outrageous attack that has happened in any of those cases….In all of those cases, it was imperative for us as public interest lawyers to make sure that the evidence of assassination and torture and massacre and in this case, violent hogtying, that that information came to light and our clients be defended from false public statements by officials who are trying to cover up the truth…. That’s exactly what the mayor and at least portions of the city council and their lawyers are trying to do.”