10th Circuit won’t revive defamation suit against Grisham, others

Thursday, February 4, 2010

A federal appeals court has refused to revive a defamation lawsuit filed against bestselling author John Grisham and others who wrote about a tragic miscarriage of justice in the Oklahoma criminal courts.

In his 2006 nonfiction book The Innocent Man, Grisham wrote about Ron Williamson, a man who spent 12 years behind bars for a rape and murder he did not commit.

Williamson and Dennis Fritz were convicted in 1988 of raping and murdering Debbie Sue Carter in Ada, Okla., in 1982. DNA testing in 1999 revealed that the two men did not commit the crimes. Later, another individual was found guilty of murdering Carter.

Fritz wrote about his ordeal in his 2006 book Journey Toward Justice. Nationally renowned lawyer Barry Scheck wrote the foreword to Fritz’s book and devoted a chapter of his 2003 book Actual Innocence to the Williamson-Fritz case. Author Robert Mayer wrote about a similar case in his 1987 The Dreams of Ada — a book that Grisham said he found useful in researching the Williamson-Fritz case. Mayer referred to the Williamson-Fritz case in his book about the death of Denice Haraway and the prosecution of two men in that case.

In their books, Grisham, Fritz, Scheck and Mayer all were critical of former Pontotoc County District Attorney William Peterson, former Oklahoma State Bureau of Investigation investigator Gary Rogers and former OSBI criminologist Melvin Hett — all of whom were involved in the prosecution and wrongful convictions of Williamson and Fritz. For example, Grisham referred to “bad police work, junk science, faulty eyewitness identifications, bad defense lawyers, lazy prosecutors, [and] arrogant prosecutors.”

Peterson, Rogers and Hett sued Grisham, Fritz, Scheck and Mayer and their respective publishers in federal court for defamation, false-light invasion of privacy and civil conspiracy. A federal judge dismissed the plaintiffs’ claims in September 2008.

The plaintiffs appealed to the 10th U.S. Circuit Court of Appeals, which affirmed the lower court in its Feb. 1 opinion in Peterson v. Grisham. The appeals court relied in large part on an Oklahoma law that provides a privilege for “any and all criticisms upon the official acts of any and all public officers, except where the matter stated of and concerning the official act done, or of the officer, falsely imputes crime to the officer so criticized.”

The unanimous three-judge panel wrote that “the plaintiffs point to no statement in which defendants directly accuse any plaintiff of a crime.”

In a footnote, the appeals court also noted that the First Amendment would compel a similar result in favor of Grisham and the other defendants, noting that “allowing the plaintiffs to recover would offend the spirit of the First Amendment.” The appeals court even invoked the fabled marketplace-of-ideas metaphor articulated 91 years ago by Justice Oliver Wendell Holmes in his dissenting opinion in Abrams v. U.S. (1919).

“Defendants wrote about a miscarriage of justice and attempted to encourage political and social change,” the 10th Circuit wrote. “To the extent their perceptions of the affair were erroneous, we depend on the marketplace of ideas — not the whim of the bench — to correct insidious opinion.”

The 10th Circuit ruled that Oklahoma’s privilege law also required dismissal of the plaintiffs’ false-light invasion of privacy claim. The appeals court also rejected the civil conspiracy claim. The plaintiffs had accused the various authors and publishers of a “massive joint defamatory attack.” The court responded: “Merely because defendants published their books in close temporal proximity to one another does not demonstrate there was an illegal agreement to engage in a ‘massive joint defamatory attack.’”

Attorney Robert Nelon — who represented Random House, Grisham, Mayer and Scheck — applauded the decision.

“Thankfully, the 10th Circuit recognized — as the district court did below — that public discourse about the criminal justice system is crucial to understanding the system and how miscarriages of justice can occur,” Nelon said.

“People who step out and research, study, comment and write about alleged miscarriages of justice should receive a high degree of protection, as we in society need more of that type of speech, not less.

“The 10th Circuit recognized that under both Oklahoma state law and federal constitutional law that the kind of speech expressed by the defendants in this case is entitled to full protection because it is so important to society.”

Gary L. Richardson, the Tulsa-based attorney for the plaintiffs, said a decision hadn’t been made on whether to appeal the ruling.

“We are just still in disbelief that the court could conclude that there wasn’t anything in the complaint that would give rise to a legal cause of action,” he said.

“I get the sense that the reality of what happened to these two men (Williamson and Fritz) has been very impacting on the court’s ruling in the sense that the court focused on the fact that justice wasn’t done to these two men instead of whether there is a legal cause of action.”

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