Federal appeals panel: District attorney’s ‘fine wine’ comment not defamatory

Wednesday, May 3, 2000

The San Diego district attorney did not defame a man acquitted in a murder trial when he stated that legal cases, “unlike fine wine,” worsen with age, a federal appeals court panel has ruled.

Murray Weiner was convicted of murder in 1994 but was granted a retrial because of newly discovered evidence — another inmate testified that one of his cellmates had confessed to the murder.

A controversial aspect of the case was some blood evidence that Weiner argued wouldn’t fit the prosecution’s theory of the case. Weiner also contended that the prosecution had hidden certain blood evidence from his defense team.

In August 1996, a jury in the second trial acquitted Weiner. Following the acquittal, District Attorney Paul Pfingst commented to a reporter from The San Diego Union-Tribune about the case, saying: “This just proves that cases, unlike fine wine, get worse rather than better with age.”

In February 1997, Weiner sued San Diego County in federal court, alleging a violation of his civil rights. One of his claims alleged that Pfingst had defamed him under state law.

Weiner contended that the district attorney’s comments implied a false statement of fact — that Weiner was guilty of the crime and the only reason he was acquitted was that the case was stale.

The district attorney contended that his speech was a matter of protected opinion, rather than a false statement of fact.

U.S. District Judge Marilyn Huff dismissed the lawsuit, including the defamation claim.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals agreed with the lower court in Weiner v. San Diego County on April 27.

To be defamatory, a statement must assert or at the very least imply a false statement of fact.

The unanimous panel considered three factors to determine whether the comments were protected opinion or unprotected false facts: the broad context of the statement, the specific context and content of the statement, and “whether the statement is sufficiently factual to be susceptible of being proved true or false.”

The appeals panel said that the “the broad context of the statement … weighs in favor of concluding that Pfingst’s statement was one of opinion, not fact.”

The panel also noted that the specific content of the “fine wine” statement was “figurative language” that advanced the belief of the district attorney as to why the case was lost.

The panel also said that the statement was not sufficiently factual in nature to be proven either true or false. Pfingst’s comment, according to the panel, “was not a statement of fact.”

“It was Pfingst’s opinion of why the case was lost,” the panel wrote. “A case can be lost for any number of reasons, among them, poor preparation, poor presentation, unexpected occurrences at trial, a better lawyer or more appealing facts on the other side, or even staleness.”

Thomas R. Laube, Weiner’s attorney, said he would not appeal the decision. But did criticize it, saying: “The U.S. Supreme Court said in Milkovich v. Lorain Journal Co. that you can sometimes cloak false statements of fact as opinions.

“The court seemed to be saying that that there are certain matters that are neither provable as true or false,” he said.