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Wednesday, June 17, 2015

Much of $3.5-million default judgment in Jessica Garrison case is built on allegations I did not report

How could this photo of Jessica Medeiros Garrison
and Luther Strange possibly be defamatory?
An order granting a $3.5-million default judgment against me and the Legal Schnauzer blog appears to be based on allegations regarding Republican operative Jessica Medeiros Garrison and Attorney General Luther Strange that I did not report.

A hearing on a Motion to Vacate the judgment is set for 10 a.m. Thursday (June 18) in Room 600 at the Jefferson County Courthouse. We've shown that the judgment is due to be reversed on multiple legal and factual grounds. But a copy of Judge Don Blankenship's order shows the judgment, to a considerable degree, is based on false information. It also apparently is based largely on comments left at my blog, even though well-settled law states that bloggers and other Web-based publishers are not liable for comments left at their sites.

Where did the false information come from? Blankenship's order indicates it came from testimony that Garrison and Strange provided at a hearing on March 9, for which I never received notice and did not appear, leading to the default. (The full order can be viewed at the end of this post.)

The most glaring falsehood involves testimony from Garrison, claiming I reported that Luther Strange is the father of her son. But I never reported that. In fact, I interviewed Garrison's former husband, Tuscaloosa businessman and school-board member Lee Garrison, and he told me he is convinced the child is his biologically. Based on the Lee Garrison interview, I never reported, or suggested, that the father was anyone other than Lee Garrison.

Blankenship's order contains language that perhaps can best be described as "absurdist." Strange apparently claimed in his testimony that I had engaged in defamation by publishing a photo of him and Garrison, cropping out a third person who was not mentioned in the accompanying article. Unbelievably, the court agreed that the photo--which indisputably was characterized accurately as including Luther Strange and Jessica Garrison--was false and defamatory. How can that be? Well, it can't, under the law, and Blankenship made no effort to find law that supports such a nonsensical notion. Editors have been cropping extraneous people out of photographs for decades; it's done for purposes of clarity and says nothing about the relationships of people left in the picture.

How off the wall is this court order--and the testimony upon which it apparently was based? Well, let's consider this section for starters:

A hearing was held on March 9, 2015 before the undersigned to prove damages. At that hearing, the Court heard testimony and received documents into evidence. The Plaintiff [Garrison] was present at the aforementioned hearing accompanied by able counsel. Neither the Defendant, nor any party purporting to represent the Defendant appeared at the hearing.

The Court first heard testimony from the Plaintiff. She testified that the Defendant [me] had written, in a blog dubbed Legal Schnauzer, several misleading and inappropriate comments concerning her and Alabama Attorney General Luther Strange. The comments suggested that the Plaintiff received preferential treatment from the Attorney General because the two were engaged in an ongoing extramarital affair; and that the Attorney General was the father of the Plaintiff's minor son. The Court received evidence offered by the Plaintiff which included the aforementioned comments. The Plaintiff testified that the comments were false. The Plaintiff further testified that the comments contained in the blog were embarrassing, hurtful, and degrading. She testified further that the comments made it difficult to perform her job. She works with a national organization, The Republican Attorneys General Association. She stated that since the comments posted to the blog have now become widely known, she constantly suffers from embarrassment and anxiety. She testified that she worries about how the comments could later affect her minor son. The Court finds the comments defamatory.

The wording of the order is unclear in a number of places, but let's take a shot at figuring out what it means:

(1) Only once does Garrison clearly refer to material I had written. And she claims that was "misleading and inappropriate." Even if that is a correct characterization, it doesn't come close to the standard of being false and defamatory.

(2) Garrison seems to claim that comments to my blog suggested Luther Strange had fathered her child. Even she seems to acknowledge that I never reported that.

(3) Again, this is not clear, and the court, in essence, is translating Garrison's words. But Garrison seems to say that comments on the blog regarding Luther Strange and her son are false--and that the comments were hurtful, embarrassing, and degrading, and they made it hard for her to do her job. Garrison does not clearly say that anything I reported is false; in fact, she does not clearly say (according to the order) that my reporting about an extramarital affair is false.

(4) Garrison says comments on my blog have caused her anxiety, and she worries about their later effect on her son. But she never says that anything in my reporting has led to such anxiety and worry.

Now, let's turn to Luther Strange's testimony. We should note that Strange seems to have no problem showing up for court when he knows the opposing party won't be present and he won't face uncomfortable questions. Strange, you might recall, was a no-show when it appeared he might have to answer questions under oath at a hearing on a liquor license for the VictoryLand casino in Macon County. From the Garrison court order:

The Court also heard testimony from the Attorney General of the State of Alabama, Luther Strange. The Attorney General testified that the Plaintiff, a lawyer licensed to practice law in the State of Alabama, worked in his unsuccessful bid for Lieutenant Governor in 2006; and his subsequent successful bid for Attorney General in 2010 and his re-election to that post in 2014. During the Attorney General's testimony, the Court received additional documents, which turned out to be more disparaging comments contained in the blog alluded to above. The evidence also contained a photo of the Attorney General's campaign staff. That photo was photo shopped, as printed in the Legal Schnauzer, to appear as a photo of the Attorney General and the Plaintiff alone. The Attorney General testified that the comments and photo posted to the blog, concerning his relationship with the Plaintiff, were false. The Court finds the Comments and the photo defamatory.

Again, we'll take a shot at trying to figure out what this means:

(1) Like Garrison, Strange apparently made no claim that anything I had reported was false. His problem, it seems, is with comments left at the blog.

(2) As for the language about the photo, it's almost hard to discuss that with a straight face. First, the court claims the picture was "photo shopped," but I don't even own a copy of the PhotoShop program and have never "photo shopped" a single picture on Legal Schnauzer. Did I crop the photo to take out an extraneous third person who was not mentioned in the accompanying article? I don't remember, for sure, if I did or not. But I do vaguely recall seeing a version of the photo where there was a fairly short, stocky young fellow to Garrison's right. I might have cropped him out because: (a) I didn't know who he was; and (b) He had nothing to do with the article. Neither the caption nor the story made any implication that Garrison and Strange were alone. How a photo that accurately displays two people posing in front of a privacy fence can be defamatory . . . well, it almost makes the brain explode. In fact, I'm not sure a photograph, unless it has been wildly doctored, can even be defamatory, under the law.

Will my attorney, Davy Hay, and I be successful in reversing the Garrison default judgment? If the law is applied correctly--and that's a big "if"--the answer is yes.

Aside from that, the default order itself suggests the Garrison lawsuit as a whole rests on a set of very shaky legs.


Anonymous said...

When the order states "She testified that the Defendant had written, in a blog dubbed Legal Schnauzer, several misleading and inappropriate comments concerning her and Alabama Attorney General Luther Strange." comments doesn't refer just to the "comment" section of your blog. You are attempting to use a very narrow definition of the word "comment" to justify your position. For example, I could have a conversation in person with you and later state that you made several misleading and inappropriate comments about Ms. Garrison. I'm sure you would agree that would be an appropriate use of the word and yet an in person conversation lacks a "comment section". Taking it a step further, even if you limit her statement to the "comment section", you often write comments along with other people.
You are also attempting to act like you don't understand the meaning of "photo shopped". I will give you a common understanding of the term photo shopped; it is a process to transform a photograph into a desired image. There are currentlty many different software applications to choose from ranging from professional applications (Photo Shop) to basic imaging software for the casual user (Paint). You admit it is possible you changed the image. If you cropped a picture, it can change the whole meaning of the image. I assume you acknowledge that the picture was not in the "comment section" of your blog. I agree that an "un-doctored" photograph shouldn't be deemed defamatory, but when it is used to imply that a defamatory statement is true, it becomes part of the statement. Of course, someone else could have cropped the picture before you got it and there was at least one other person present when the picture was taken, the photographer.
If you do get the default judgment set aside and have a trial, I hope your defense is better than this.

legalschnauzer said...

It's funny, @7:10, that you accuse me of using a very narrow definition of words to justify my position--and then you do the exact same thing. The words I've seen most often used to describe alleged defamatory matter are "representations," "imputations," and "statements." The court, in this case, uses the term comments, which even you seem to acknowledge is confusing--just as I say in my post. In fact, I state that much of the order is poorly worded, so I can only guess at its meaning.

As for "photo shop," I know exactly what that is. It has a specific meaning, and I've never used that program or any other program. Cropping and "photo shopping" are two entirely different things. Editors have been cropping photos, to remove extraneous and distracting material for the printed image, for more than 100 years. Cropping does not "change the image" (to use your term), and photo shopping does. Either way, except in extraordinary circumstances, neither amounts to unlawful defamation. You seem to admit that yourself, and you cite no law to support your contention that an "undoctored" photo can become part of a defamatory statement.

Even you seem to admit Garrison and Strange are grasping at straws here, so to borrow your phrase, I hope they come up with a better offense than that.

Anonymous said...

Luther Strange argued that photo is defamatory? Is he trying to say that's not him and Jessica Garrison? How does a judge listen to that kind of testimony and not break out laughing? Good God!

Chuckles said...

Luther Strange is our attorney general, and this is the best legal argument he can come up with? I want to check that man's law degree, stat!

Anonymous said...

You interviewed Lee Garrison? I bet that was interesting.

legalschnauzer said...

Yes, I did. And yes, it was.

Anonymous said...

@7:10 sounds like a douchebag, but even he is sharp enough to realize that at least one other person--the photographer--was present. So again, how does this photo suggest Ms. Garrison and Mr. Strange were alone?

Crash Test Dummy said...

The way I read it, $3.4999 million of Garrison's $3.5 million default judgment is based on the allegation that Luther Strange fathered her child--from the embarrassment that she and the child have felt, or might feel, because of that. But if you didn't report that, her judgment must be worth about zero. In fact, it seems to me you might be entitled to damages due to false statements being made about you in court.

Anonymous said...

Was the judge under sedation when he listened to this testimony and wrote this order? Sheesh!

Anonymous said...

I think it would be interesting to have a transcript of this hearing to see exactly what Garrison and Strange said--and what Baxley argued, if anything.

legalschnauzer said...

I agree, @11:21. I would like to see a transcript, too.

Whit said...

Why was Luther Strange at this hearing? He's not a party to the lawsuit, the order indicates that he did not testify about any of your reporting being false. All he did was argue that a photo was defamatory, when it clearly is not. What was his purpose for being there?

Anonymous said...

I would like to know how AG Strange got to the hearing, on a case where he is not a party and that really does not involve him. Did AG Strange use state resources to travel from Montgomery to Birmingham for this hearing that was personal in nature and had nothing to do with state business?

legalschnauzer said...

Hmmm . . . you ask a darned good question, @2:11. Whit asks a number of good questions, also.

Anonymous said...

Why isn't Luther busy indicting Bill Baxley, Rob Riley, Bob Riley, and Mike Hubbard for obstruction in the Lee County case? The evidence is clear they unlawfully received grand-jury information from Sonny Reagan. Is Luther waiting on the tooth fairy to bring the indictment?

Anonymous said...

Here's a scenario: If I had a picture of the Governor and a prostitute standing beside each other at my blog and wrote the headlines, "There are rumors these two engaged in an affair," would that be defamation and would I be looking at a lawsuit? How do tabloids get away with it? Do they worry their stories may wind up in court rooms? Or do they prevail because public figures don't want the legal expenses and added publicity to challenge them? Is it true that public figures are open game for many forms of public scrutiny in journalism, including jokes, cartoons and opinionated articles?

And, If AG Troy King could use state resources to attend George Jones birthday party, why can't AG Strange use state resources to fry an investigative journalist who's ruffled Republican feathers?

legalschnauzer said...

You could be looking at a lawsuit, @4:13, because you got out of bed that morning. Every American can be sued for something every day of his life. That's the nature of our litigious society. Hell, I got sued because a neighbor with a lengthy criminal record continually trespassed on our property and threatened my wife and me when we warned him to stay off our property. The guy committed a crime (criminal trespass), and he confessed to it in court, but a "judge" acquitted him, and that and allowed him to wind up suing ME, the victim of his crime. That's what started all of our legal headaches. Such a ridiculous and unlawful outcome is the reason this blog came to exist, and it's why I felt the need to expose what really goes on in our courts.

The question in your scenario is: Could you lawfully lose such a lawsuit? If the governor and the prostitute could not prove that your blog report was false, the answer is no. The burden of proof, that your report was both false and defamatory, would be on them. In your scenario, I don't think the photo would have anything to do with it, as long as it was an accurate image of the two of them standing there. Would you be liable for cropping out two or three unknown people who were standing on the same street corner and had nothing to do with your story? Of course not.

One note: Even if your reporting is 100 percent accurate, you could be wrongfully sued and have to spend $10,000 or more to defend yourself. And you run the risk, with a bad judge, of losing, even though you were in the right. That's "justice" in America. That's why I've been targeted for two defamation lawsuits that are dubious, at best--the only two suits I've faced in a 37-year professional career. It's a way to harass journalists who are reporting accurately and fairly.

I don't know anything about Troy King's trip to George Jones' birthday party. But you seem to be admitting that AG Strange is trying to "fry" an investigative journalist for ruffling GOP feathers, not for reporting in an inaccurate fashion. You help make the point I lay out above.

e.a.f. said...

Now lets not confuse these people with facts. This is just another e.g. of why there are so many jokes about southern politicians.

The picture is defamation? Oh, dear do these people not know how to read?

The truth is never defamation. Of course if Luther thinks having the picture published is defamation, just what were they doing that they don't want the public to know about?

Oh, those poor, poor southern boys, they are so dumb, at some level. O.K. not you and a whole lot of others, but really, Luther's sense of entitlement to privacy as a politician, is so out of wack, you really almost have to feel sorry for him.

Where they found the judge is beyond me. Well I know its Alabama, but surely even judges in Alabama had to pass literacy tests. No, O.K.

Looking forward to your success!

Anonymous said...

(You don't have to publish this, just trying to make another potentially valid point:)

..........."Karl Rove set up a "push poll" phone bank in South Carolina. The callers were not actually taking a poll -- they were not recording the answers they were getting. Their purpose was to ask pointed, deceitful questions that were intended to dispense rumors and lies. The attack worked. Here is an example of one of Karl Rove's questions: "If it was true that John McCain fathered an illegitimate child with a black woman, would you vote for him?".........

I have understood there are no laws requiring a judge to rule in a sane nor fair, nor sensible manner. In fact a judge can rule any way he wishes for any reason he chooses. The only mechanism left in our society to keep check on court activities and questionable tactics is through the First Amendment. Journalists and citizens alike should be allowed the freedom to share information about anything: whether fair, upright, questionable, potentially corrupt, or shady in an open, democratic government.

Newspapers, when they publish erroneous information, are given the chance to retract the statement publicly. Is there any law that protects newspapers that doesn't protect journalists? I'm curious how a lone individual journalist's rights compare with corporations, whether tabloids or newspapers–– on similar issues. Are they considered "equal" in the courts when the issues are similar?

Anonymous said...

Never forget what they did to Martha Mitchell for telling the truth. Nixon said there would have been no Watergate without her, and she was punished incredibly for exposing them. She died far too young at 57––not so long after Watergate. They gave "myeloma" as her cause of death.

Anonymous said...

Did you have your court hearing? If you did, what happened?

legalschnauzer said...

Yes, the hearing was held, but no order has been issued on it yet. I wasn't in attendance, so I'm not sure exactly what happened, other than the usual back and forth between lawyers.