Clermont County Prosecutor's Defamation Defense Costing Ohio Taxpayers Some Big Bucks

Clermont County's (Ohio) longtime prosecutor's defamation lawsuit defense is costing the taxpayers substantial dollars.  The following is an excerpt from Barrett Brunsman's report for the Cincinnati Enquirer:

"Taxpayers might have to cover at least $100,000 in legal fees in a defamation lawsuit filed by Clermont County Commissioner Archie Wilson against Prosecutor Don White.  'The county's money would be better spent on other things,' White said.  The prosecutor expects the county's insurance company to pay for his defense, but a $100,000 deductible would be the responsibility of taxpayers, White said.

Assistant prosecutors usually defend the county against lawsuits, but that would be [in]appropriate in this case[.]  An outside lawyer would be needed because some of the prosecutors who work for White could be called as witnesses [ . . .]

The suit seeks more than $25,000 in compensatory damages [ed. Ohio, like many states avoids outlandish demands for millions of dollars by capping the amount asked for in lawsuits at "in excess of $25,000] and unspecified punitive damages [. . . ] to be determined by a jury trial.The suit suggested that [the plaintiff, Mr. Wilson]  was defamed when the prosecutor circulated the affidavits of people who claimed to have witnessed Wilson make defamatory comments at an Aug. 2 meeting of the Union Township Republican Party.  White said he investigated after hearing that Wilson allegedly said the prosecutor was corrupt. 'He accused me of committing a crime - covering up a murder,' White said. 'It's not true.'

White looked into claims that Wilson allegedly said 2-year-old Cecilia Slaby had been murdered by her parents to cover up sexual abuse by her father. Union Township police determined the child died in 2007 after accidentally being left in a hot car by her mother.

The prosecutor said he was told by witnesses that Wilson suggested the parents weren't charged because White is a friend of R. Scott Croswell III, a lawyer who represented the girl's mother during a police investigation. Croswell was Wilson's opponent in the November election.


The suit against White also suggested the prosecutor engineered a Hamilton County defamation suit filed against Wilson by the parents of Cecilia, Symmes Township resident Gary Slaby and his wife, Brenda Nesselroad-Slaby.  The prosecutor called the suit field against him by Wilson frivolous and said he expects it to be dismissed."
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According to Prosecutor White's website, prior to becoming the Clermont County Prosecutor he was a loader for United Parcel Service.   It never ceases to amaze me how these sorts of disputes blow up and it's the taxpayers who pay and pay. 

"Ken Is Corrupt, Insane and Running a Ponzi Scheme"--That's Defamation Per Se

It's been a while since we've had a good example of defamation per se, but a South Carolina jury handed down an $850,000 verdict in a case in which a Charleston County planning commission member Robert Miller claimed a Mount Pleasant (greater-Charleston area) town council member, Ken Glasson was "corrupt, insane and running a ponzi scheme" when he isn't and wasn't.  The story is reported at The Post and Courier.

This was a nasty case with all sorts of bribery and other allegations made between Mr. Miller and Mr. Glasson.  It appears that Mr. Miller was a long time power broker and developer in this fantastically beautiful part of the country and chafed at the rise of Mr. Glasson. 

Remember there is a distinction in the law between defamation per se and per quod.  Defamation holds up another to ridicule, scorn or contempt and injures one in their reputation.   Per se means that the wrods themselves need no further explanation to accomplish the defamatory purpose while per quod means that the defamatory words require further explanation.  This story is a perfect illustration of defamatory words, per se, calling someone a criminal who is not a criminal or insane certainly achieves the defamatory bullseye.  If Mr. Miller had falsely claimed Mr. Glasson was practicing law and it turned out Glasson lacked a law license, the explanation that Mr. Glasson lacked a law license would constitute defamtion per quod particulalry if this caused Mr. Glasson to be investigated by the local bar association for practicing law without a license.  In fact, an element of an action for defamation per quod, is proof of actual damages--as when the subject of the defamation incurred attorney fees to defend himself.

Oh, by the way check out the contrary result where a NY doctor and his lawyer were ordered to pay sanctions for bringing frivolous defamation actions against another doctor.

Calling Someone "Gay" Is Still Defamatory In Texas

You gotta wonder about Texas, right? 

Since 2003 when the US Supremes decided Lawrence v. Texas, sodomy laws and by definition, the American Taliban laws against homosexuality have been unconstitutional.    But a U.S. District Court Judge in Texas, held this last week that when Rickey Smiley, a local radio host who called a security guard at a local airport, "gay," may be sued for defamation.  How is calling someone "gay" defamatory? 

The story can be explored at a great website, that I've been looking at this last week call On.point.com.

Grisham Didn"t Libel Anybody

John Grisham is the author of many books lawyers love to read.  I'm guessing he himself would deny literary-airs, but his novels consistently captured clear-eyed portraits of those aspects of the legal discipline he chooses to write about.  In otherwords, he is a great chronicler of the legal profession as most Americans encounter it. 

A successful writing career has given Grisham the freedom to pursue among other things, the Innocence Project and many other important legal reform efforts, including efforts to end the death penalty in the United States.  The work to the right, The Innocent Man, a work of non-fiction resulted in the eventual exoneration Ronald 'Ron' Keith Williamson in Oklahoma and the exposure of shortcomings in the Oklahoma criminal justice system.  The Innocent Man also got Grisham sued for libel by three Oklahoma criminal justice officials.  Yesterday legal websites including the excellent Courthouse News Service reported that the 10th Circuit United States Court of Appeals upheld a U.S. District Court judge's dismissal of the claims. 

Here, on Bad Lawyer we discussed defamation claims on several occasions.  Again the public figure/public official status of the plaintiffs in the Grisham case was determinative of the disposition of the lawsuit.  Public figures/public officials have a very difficult burden to overcome in establishing defamation liability.   Frankly Pulic Officials are the folks, that we the people are licensed by our most important freedoms, to criticize.  When I have more time I will revisit the subject of defamation and the interesting history underlying the seminal case, New York Times Co. v. Sullivan, or you can read the Wikipedia entry yourself at the link.

Philadelphia Freedom

Philly.com is reporting that Councilman Jack Kelly lost his defamation lawsuit, the jury returned a verdict late Friday for the gadfly Paul Corbett.  This interesting case, highlighted on Bad Lawyer began with coverage of a Judge A.J. Snite's remakable pique with Corbett's attorney who had the idea that perhaps the jury ought to hear the words of the Pennsylvania and U.S. Constitutions on Free Speech.  Jeff Shields, Chris Brennan and Catherine Lucey at the Philadelphia Inquirer provided comprehensive coverage of the blow by blow.  Here's hoping they are permitted to follow up with a overacrching examination of how this case got to a jury, and juror interviews. 

Let me quote something, that I heard, again, the other night from one of the few really decent courtroom dramas, Anatomy of Murder.  The defense attorneys are waiting on the jury's verdict, and Jimmy Stewart's film associate, Parnell McCarthy (played by Arthur O'Connell) quietly marvels:

"Twelve people go off into a room; twelve different minds, twelve different hearts from twelve different walks of life, twelve sets of eyes, ears, shapes and sizes. And these twelve people are asked to judge another human being as different from them as they are from each other. And in their judgment they must become of one mind--unanimous. It is one of the miracles of Man's disorganized souls that they can do it, and in most instances, do it right well. God bless juries."

Civil juries tend to consist of less than twelve, but the same sentiment applies.  God bless juries.

What Is Defamation, Philly?

Political Flyers Can Defame?!!!

Generally speaking defamation is the tort of communicating as fact, a false and malicious claim about another which injures a person in their reputation, particularly in their business or professional reputation.  Got that?

Defamation is commonly divided into two categories: slander and libel.  The former is an utterance, the latter a writing. Defamation is also divided into two further (more important) categories:  per se, and per quod.  The first category is the sort of defamation that in the law, needs no further explanation. An example of per se defamation exists in the situation where one is falsely accused of being a criminal.  No further explanation is necessary, no further words need to set out contextualize the defamatory remark.  Per quod defamation requires the setting out of context, as when innuendo is used to suggest something vile about another or a claim is made which given the circumstances can be highly-damaging to the professional standing of another. 

In the latter category I represented a professional who was accused of writing prescriptions--since my client was a nurse, and was unable under her licensure to write prescriptions the supervisor who accussed her of this act, was actually claiming that my client waspracticing medicine without a license.  If this claim had been true, the fact of "practicing medicine without a license" would have cost her my client her nursing certification and job.   This case was spectacular because the defendant was a young attractive female physician at a major OurTown hospital and physican practice who were also defendants.  This young Black physician suffered a terrible insecurity around this senior white battle ax nurse.  It was the nurse's job to help the doctors navigate the OurState workers' compensation reimbursement system--the young physician did not realize that certain forms were required to be submitted by the medical practice to get revenue from the OurState workers' compensation program.  The doctor decided the nurse was her enemy and carried on a calculated campaign to get my client fired. 

When you seek to prove defamation per quod you must prove, as I set out in the definition, malice, ill will, hatred, etc.  When I took the discovery deposition of the physician I asked the doctor:  Do you hate my client?  The doctor answered, after a long puase:  Yes.  End of case. 

Per Se, defamation is the easier case.  Sally Busybody says to someone,"Joe Flabeetz is a child molester."  Assuming Mr. Flabeetz is not a child molester, he can begin counting his greenbacks.  I had this situation against the Archbishop when the Archbishop falsely claimed a pedophile priest was moved to another parish with children in the parish population with my clients' approval!   It took no additional words to understand that my client was being accused of participating in a cover-up of criminal conduct, which was particularly appalling when you also learn (although this is not necessary to the tort certainly relevant to damages) that my client was a victim of the same pedophile priest. 

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Now let us turn to the case in Philly with Judge Snite.  Yesterday I asked, how did this case get to a jury--I still have very few details although I've pieced together some impressions from the comments at Philly.com to the expanded report from the trial.  Apparently, city councilman Jack Kelly eked-out a razor-thin (less than 150 votes) reelection to his city council seat following a barrage of critical campaign flyers issued by a private citizen.  The citizen Paul Corbett objected to the city council's decision to force the Boy Scouts out of a municipal meeting place.  Here's what Philly.com had to say about the underlying occurences:

"Kelly's case against Corbett grew out of a 2007 City Council vote to force the local Boy Scouts chapter to pay $200,000 per year or move its headquarters off city-owned property it had rented for $1 per year since 1928.  Council, acting on an opinion from then-City Solicitor Romulo Diaz, decided the Boy Scouts were violating the city's anti-discrimination ordinance.  The U.S. Supreme Court ruled in 2000 that the Boy Scouts of America can ban homosexuals.   Corbett testified yesterday that he tried to have a meeting with Kelly and, after being rebuffed, sent a letter to try to change Kelly's mind. He also admitted that he also threatened to distribute fliers attacking Kelly just before the 2007 general election.  Corbett printed 5,000 of the fliers and stuck them on cars parked at 20 churches in Northeast Philadelphia, starting with Kelly's Roman Catholic parish.  The flier read:  'Councilman Jack Kelly voted with the homosexual lobby to remove the Boy Scouts from their city rent-free headquarters. The Scouts can remain only if they agree with the homosexual agenda which would promote sodomy to our youth.' The flier also accused Kelly of 'contributing to the delinquency of minors.'It was printed with the name 'Citizens Opposed to Politicians who Pander to Perverts.' Corbett continued putting the fliers on cars at Kelly's parish after the pastor asked him to stop.  'I tried to embarrass him'  Corbett told the jury with obvious pride. 'I wanted to have as big an impact as I could. And I did. He almost lost the election.'"

Why is this defamatory?  Assuming the statements are false, it certainly seems like Mr. Corbett "published" opinions not factual claims. 

More importantly, in United States we have adopted the "Public Figure doctrine" which holds that for a false statement to be actionable as it relates to a public figure, like councilman Kelly it must be made with a knowing or reckless disregard for the truth and made with actual malice.  Furthermore, political speech of this sort is highly protected under the First Amendment (remember that, Judge Snite?), being precisely the sort of speech which the U.S. Supreme Court has reached out to protect if not foster.  Certainly, Mr. Corbett is a gadfly, but he seems like one in the long tradition of American history and politics. 

You don't have to agree with Paul Corbett (BL: I don't) to respect citizen Corbett's right to say anything he wants about councilman Kelly.  I see the robust communication of opinion as being in the long tradition of free speech, not defamation.  

But maybe there are facts we haven't gleaned from the reports at the Philadelphia Inquirer, hmmmmm?  We'll just have to keep a Bad Lawyer eye on this one.

Litigant Guru of Gwinnett, Georgia Loses Lawsuit

Litigation has not proved the path to spiritual enlightment for self-described guru, Annamalai Annamalai, who goes by the title Dr. Commander Selvam according to the report in the Atlanta Journal-Constitution.  Apparently Fulton County, Georgia Superior Court Judge Kimberly M. Esmond Adams dismissed the Gwinnett County, Georgia Guru's defamation lawsuit against Gita Kotecha and Basant Tariyal, two leaders in the local Hindu community who criticized Dr. Commander Selvam on a local news show.  The defendants said that "Annamalai, who charges fees of hundreds or thousands of dollars for prayer services and horoscope readings -- gives Hindu priests a bad name and does not represent the Hindu faith."  The Superior Court not only dismissed the Guru's lawsuit but Judge Adams imposed $11,000 in sanctions against both the guru and his attorney.  Apparently this lawsuit is one of dozens the guru has filed against former followers and critics.