Former state Supreme Court Justice Warren McGraw speaks at the 2004 Racine Labor Day rally.
CHARLESTON – While it doesn't mention it directly, Warren McGraw's lawsuit almost certainly refers to footage of his speech at the 2004 Racine Labor Day rally.
That speech, which became known in some circles as the "Scream from Racine," was compared to the infamous speech given by 2004 Presidential candidate Howard Dean that many say doomed his campaign.
Click here to play the video.
During the seven-minute speech, McGraw -- dressed in an American flag shirt -- talks about how he was followed to the annual Boone County holiday event by his opponent's staff "looking for ugly" and looking to take ugly pictures of him.
McGraw filed a lawsuit April 21 in Greenbrier Circuit Court saying an April 22, 2004, auto accident was at least partly to blame for his loss that fall in the general election. He says injuries resulting from that accident forced him to become overcome with pain and forced to lean forward while holding his back and grimacing with pain.
The suit says a member of his opponent's staff was in attendance at a later campaign speech and filmed him grimacing in pain. The footage, the suit claims, was used in political ads against McGraw that were broadcast across the state.
McGraw, represented by his son Randolph McGraw, says the images portrayed him in an extremely negative light. He says that the footage in part is to blame for his loss, and he seeks his yearly salary for the 12-year Supreme Court term in the suit.
Steve Cohen was communications director for Brent Benjamin's successful 2004 run against McGraw. Other than the Racine speech, he said he doesn't recall any other McGraw speeches, rallies or campaign events being used in statewide ad campaigns.
Cohen, who now is executive director of West Virginia Citizens Against Lawsuit Abuse, said Benjamin's campaign did cut a radio ad using some audio from that Racine speech, but that Benjamin's campaign did not run television ads showing the video from the speech.
Gary Abernathy, who was executive director of the state Republican Party in 2004, agreed with Cohen.
"It's the only (McGraw speech) that I'm aware of being filmed," said Abernathy, who now is a political consultant. "I feel confident that must be the one he's talking about in the suit."
Abernathy said the state GOP used audio from the Racine speech for a radio commercial even before Benjamin's campaign did the same. And he said they ran the ad through the remainder of the election season.
Abernathy said he was stunned by the claims in McGraw's suit.
"I'm astounded that he's come up with this notion a year and a half later," Abernathy said. "When did he wake up with this idea?
"But, I would say that if this is what Warren wants to say cost him the election, then he's sending the message that Don Blankenship no longer is to blame. It's poor Mr. Tugman (the driver named in McGraw's suit) who is to blame for his defeat. At least that's what it is this month."
Abernathy refers to Blankenship, CEO of Massey Energy. He was responsible for a political action committee called "… And for the Sake of the Kids" that helped get Benjamin name recognition and shed light on McGraw's more controversial rulings, including the lightning-rod case of Tony Arbaugh.
Arbaugh had been sexually abused for years, abused a younger brother, did illegal drugs and broke the terms of his parole. A lower court sentenced him to 35 years, but McGraw and the Court majority gave Arbaugh one more chance and endorsed a lower court minority suggestion that Arbaugh be given a janitorial job at a Catholic school.
"… And for the Sake of the Kids" did use images from the Racine speech in television ads. The PAC also bought 30-minute ad blocks on several TV stations across the state in October 2004, showing McGraw's full Racine speech in addition to specific clips from the speech along with some of their other campaign ads.
"The bottom line is Warren McGraw lost that election because the people of West Virginia realized the court system and its anti-business decisions were wrecking the state," Abernathy said. "We needed a court that judged cased by the law and not by politics.
Warren McGraw has filed lawsuits against several people after his defeat in the Court race," the WV CALA executive director sad. "Both he and his Attorney General-brother Darrell are poster children for West Virginia's broken lawsuit system.
"Even in defeat, Warren perpetuates the frivolous abuse of our judiciary. Anyone involved in an auto accident deserves their day in court, but blaming a fender bender on losing an election is absolutely preposterous."
Randolph McGraw, Warren's son who is representing him in the case, did not return calls seeking comment.