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Killer’s Lawsuit Against Publisher Proceeds

WASHINGTON (CN) - The publisher of the Criminal Law Reporter is not entitled to summary judgment in a case alleging it defamed a killer of two deputy U.S. marshals in its reporting on a mandamus petition, a federal judge ruled.

U.S. District Judge Richard W. Roberts rejected the publisher's request to reconsider a refusal to grant it summary judgment.

The underlying lawsuit, Yorie Von Kahl v. Bureau of National Affairs, Inc., stems from a 1983 incident in North Dakota in which two deputy U.S. marshals were killed in a shootout while trying to serve a federal warrant.

Two people - Von Kahl and Scott Faul - were each charged with two counts of first-degree murder; four counts of assaulting U.S. marshals and other law enforcement officers assisting them; conspiring to assault; and harboring and concealing a fugitive.

A jury acquitted them of first-degree murder, but guilty of the lesser included offence of second-degree murder, and guilty of all of the remaining charges.

On Aug. 17, 2005, the Criminal Law Reporter published a summary of Von Kahl's mandamus petition before the U.S. Supreme Court. Von Kahl sued, claiming the first sentence of the summary contained four damaging false statements.

These included a statement that he "'showed no hint of contrition' in respect to murders of officers performing duties"; that he "'made statements to the press that he believed that murders of U.S. marshals ... were justified'"; that he "considered the murders justified on religious and philosophical grounds"; and that he "had been 'committed to custody ... based on his convictions of two counts of violating 18 U.S.C. §§ 1111, 1114, and 2,'" Judge Roberts wrote. (Ellipsis in ruling; double quotes indicate quotation from ruling, single quotes from ruling citing the publication at issue.)

Nearly two years later, on July 18, 2007, the Criminal Law Reporter published a "purported clarification" stating that "the summary of the sentencing judge's ruling should have begun: 'Petitioner who was said to have believed that murders were justified, ...'" Roberts wrote.

Von Kahl responded that the original statements defamatory and that the "purported clarification was 'a further false attribution.'"

He claims that the allegedly false statements injured his community standing by making him appear "entirely irrational, unsound, psychotic and otherwise odious, infamous, or ridiculous."

And he said the original statements and the clarification caused him "extraordinary and special harm" because his "'character, reputation and credibility were essential to fair consideration of his then-pending matters' before the Supreme Court".

"In other words," Roberts wrote, "he attributes the denial of his mandamus petition by the Supreme Court to BNA's publication of the allegedly libelous statements in the CLR."

Von Kahl sought punitive damages.

BNA unsuccessfully sought dismissal or summary judgment. The issue before Roberts was BNA's request for reconsideration and a judgment on the pleadings.

In its request, BNA raised several issues, perhaps the most critical being its assertion that the "allegedly defamatory entries in the [CLR] are protected by the District of Columbia's 'fair reporting privilege.'"

Under District of Columbia law, "defamatory matter concerning another in a report of any official proceeding ... is published on a conditionally privileged occasion if the report is (a) accurate and complete, or a fair abridgement of what has occurred, and (b) published for the purpose of informing the public as to a matter of public concern," the BNA claimed.

It produced a portion of the transcript of original criminal proceedings in the case. "As long as its summary was a 'fair abridgment' of the court proceedings being argued, BNA argued that it is protected from a defamation suit by the fair reporting privilege," the publisher claimed.

But Von Kahl produced another excerpt, showing that it was the prosecutor, not the sentencing judge, who allegedly made the offending statements.

In response, BNA argued that the fair reporting privilege still applied, "notwithstanding its failure to attribute the offending statements to the prosecutor rather than the presiding judge, because 'the excerpt ... was, at best, unclear on this issue, and indeed, gave the impression that this information was part of the sentencing itself."

In its motion for reconsideration, BNA argued that the Memorandum Opinion denying it summary judgment can be construed as denying or dismissing its fair reporting defense.

Roberts said this was a good point, and that "BNA going forward may still pursue a fair reporting defense."

"What the Memorandum Opinion would not do is allow that asserted defense to support summary judgment for BNA. Reconsideration of the order denying BNA's dispositive motion, however, is not warranted."

A key point rests on the lack of clarity in the CLR summary in regard to whom - the prosecutor or the sentencing judge - alleged that Von Kahl showed no contrition for them murders.

Roberts found that Von Kahl "adequately demonstrates that the 'lack of contrition' statement is not an opinion and that attribution of the statement to the sentencing judge is both factual and untrue. The statement, therefore, is actionable."

While conceding that "Plaintiff's convictions of serious and violent crimes erect a high hurdle for him in convincing a trier of fact that his reputation has suffered because of the allegedly defamatory statements published in the CLR ... his criminal history alone is not a basis to curtail these proceedings at this stage," Roberts wrote.

He rejected BNA's claim that Von Kahl failed to fulfill the second element of a defamation claim: identifying specific recipients of the allegedly defamatory statement.

Here, Roberts said: "Plaintiff responds that he not only has specified the dates on which the defamatory statements were published, but also has alleged that the statements 'we're published and "read in the District of Columbia,"' among other locations, by 'sophisticated' 'members of the criminal bar,' among other readers."

BNA did succeed on one argument: that Von Kahl should not be allowed to claim libel per se.

"Insofar as the CLR summary indicated that he [Von Kahl] had been 'committed to custody of U.S. Attorney General for imprisonment for life based on his convictions ... the summary is true," Roberts wrote.

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