October 24, 2012

Couldn’t Happen to a Worse Person

I try not to get caught up in other people’s misfortunes – schadenfreude isn’t very attractive – but I’ll make a special case for Nancy Grace. Regular readers know I have a special spot in my heart for the loud-mouthed cable news legal “analyst.” It does that spot some good to know she’s getting sued for libel (via TalkLeft):
A day before his parole hearing, Michael Skakel filed a defamation lawsuit against CNN television host Nancy Grace alleging that she made false statements on her show about evidence in the 1975 murder case for which he has been sentenced.

* * *

In the segment, ‘Kennedy Cousin Asks Judge for Shorter Jail Time,’ Grace asks [Tru-TV host Beth] Karas if Skakel was masturbating in a tree near [murder victim Martha] Moxley's window. Karas responds: ‘His DNA was found.’
But apparently that’s not true. So, have fun with that one, Nancy!

Karmic juiciness aside, the case does raise an interesting issue, at least in my tiny mind. Skakel is a convicted murder, after all. Whatever doubts there may be about his factual guilt, he’s guilty in the eyes of the law. Given that the entire point of a defamation claim is that the plaintiff’s reputation has been sullied by the false statement, can a convicted murderer be defamed? Particularly for something related to his conviction?

With the caveat that I’m far from an expert in the area, the answer doesn’t appear to be all that clear. Courteously, the Connecticut judiciary has put its model jury instructions online to help get the lay of the law.

Start with the generic instruction on defamation, which sets forth three elements:
To establish a case of defamation, the plaintiff must prove the following:

1. the defendant published a defamatory statement to a third person;

2. the defamatory statement identified the plaintiff to a third person; and

3. the plaintiff's reputation suffered injury as a result of the statement.
Likewise, the instruction specifically for libel requires the plaintiff to prove that “the publication caused harm to the plaintiff.” So injury to reputation appears to be a key part of the case.

But not so fast – Connecticut law also provides for per se versions of both libel and slander.* To quote the libel instruction:
Certain written defamatory statements are considered to be so harmful in and of themselves that the person to whom they relate is entitled to recover general damages for injury to reputation, without proving that any special or actual damages were caused by the statements. These defamatory statements are called libel per se. Libel per se is a type of libel in which the defamatory meaning is apparent on the face of the statement.

When the defamatory words are libel per se, the law conclusively presumes that there is injury to the plaintiff's reputation. The plaintiff is not required to prove that (his/her) reputation was damaged.
The instructions go through various categories of per se defamations, with the slander categories more wide open than the libel ones. Whether public masturbation falls into those categories, I can’t say (it doesn’t at first glance). If it doesn’t, Skakel will have to prove that Grace’s blunder damaged a reputation already diminished (if not destroyed) by a murder conviction. That might be a tough sell to a jury, or even a judge. It will be interesting to see how Skakel’s lawyers play things.

It will also be interesting to see how Grace and company defend their “honor.” Here’s hoping they can’t.

* Libel is written defamation, slander is spoken defamation. I’m not really sure under which branch a TV program falls.

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