question

[BelizeBreeze]

1. The fact the detective, personally involved in the prior case and with actual knowledge of falsity, is an officer in the subsequent company who posted the materials in connection with the company's advertizing.

I disagree. Actual knowledge of the falsity would have to be proven by the plaintiff and from the facts presented, opinion isn't fact. I have stated opinion many time (especially in my capacity as a security liaison with NATO) that, after further research and investigation, proved to be wrong. Police and investigators also routinely state opinion (I KNOW HE DID IT) without benefit of factual support. Unless the statement was "I Framed him" and then the subsequent actions were based on that, the plaintiff would have a very tough time linking opinion to action, especially in light of the supporting actions of the court.

2. The fact the company, when the facts on the website were pointed out as false, refused to retract and dug their heals in (and wouldn't even remove the materials until sued), and then, once sued as an almost admission of guilt and malice, immediately retracted (I think its arguable that the removal isn't a subsequent remedial measure).

This is the point I was trying to get Rmet to see. Although Bill could argue that the removal of the website is a remedial measure, it doesn't go far enough under the legal definition of 'retraction'.
As you know BA, an attorney, investigator or analyst must not only measure the quality of the facts, case law and foundation of a case, they must also measure the client represented. And, in this case, the client seems to be someone I would be hesitant to present to a jury.

 

[BelizeBreeze]

There is no excuse for the defendant to incorrectly report that the plaintiff “ultimately served a 5 year prison term”. Any cop knows that the outcome of a criminal trial is subject to change. If I expect responsible behavior from ANYONE, I expect it from a man who spent his life in law enforcement.

First of all, in an analysis of the merits of a case, editorializing only detracts from the logical progression of the facts. Therefore, I'll reserve comment on that aspect of your post Megan.

As to the statment "Ultimately served a 5 year prison term" I have trouble with where you got that. In BA's original post the statment was "...was convicted, served a prison term, etc." NOT the same.

It can be argued that conviction WAS the result and that a prison term was also a fact. The fact that was NOT stated was that the prison term was stayed.

Another problem with your analysis is the following:

I believe the plaintiff had a viable cause of action before he notified the company of his concern. But once he notified him of his concern and they refused to remove the false publication? If the plaintiff’s attorney can’t win this case he needs to change jobs.

And immediately thereafter:

The failure to investigate after notification of the falsity of the publication constitutes circumstantial evidence of doubt regarding the truth of the statements published. This equates to reckless disregard or “malice”. See Stephen J. Barrett, et al. v. Ilena Rosenthal
A096451 (Cal. App. Crt., 1st App. Dist., October 15, 2003)

There have been no statments as to what transpired immediately after the defendent received notification of the claim, it's your assumption that no investigation had transpired. And as stated earlier, the simple claim of a wrong is not a requirement that an investigation occur.

In fact, as BA's initial post stated, no evidence that the case had been overturned on appeal was available at the time of the defendent's claim to the defendent.

As long as the plaintiff can prove he notified them of the falsity, they "knew the defamatory statements were false" or made them "recklessly or with willful disregard to the truth" by leaving the info on the site.

Again, notification is not, in and of itself, evidence of intent. The defendent is well within their rights to investigate the tenacity of the Plaintiff's claim and determine a course of action.

The fact that they did or did not is not evident from the facts presented. However, you assume they did not.

Except that the facts were not presented as they occurred. They were presented years later and they were embellished upon. Furthermore, they had a duty to LEARN the outcome of the case before they reported an assumed outcome to the public.

Megan, PLEASE take an English comprehension calss while you are pursuing your studies. 'as they occurred' is an inference NOT to a point in time but to the facts as they unfolded.

And where, in case law, can you uphold your opinion that a defendent has a DUTY to learn the outcome of the case? In fact, the defendent has no such duty. The ONLY duty incumbant on the defendent is to remedy.

Megan, I have no problem with your legal analysis although I think it will not survive scrutiny under legal challenge. What I DO have a problem with during every analysis you have made on this website is the fact that you allow your own opinion and bias to enter into your analysis and therefore are unable to evaluate a case on its facts.
And, until you are able to do that, all you'll learn is how to be a lawyer, NOT the practice of law.

 

[rmet4nzkx]

I would think you've got a couple problems:

1. The fact the detective, personally involved in the prior case and with actual knowledge of falsity, is an officer in the subsequent company who posted the materials in connection with the company's advertizing.

2. The fact the company, when the facts on the website were pointed out as false, refused to retract and dug their heals in (and wouldn't even remove the materials until sued), and then, once sued as an almost admission of guilt and malice, immediately retracted (I think its arguable that the removal isn't a subsequent remedial measure).

Keep us updated.

From a fornesic point of view, I look at the facts and evidence, not how they might be argued, that is the work of attorneys. Personally and profesionally, I am appaled at the actions of the detective and beyond the suit, the plaintiff should take any and all administratice options available. We don't need people like this in any position of trust.

You very clearly outlined the essense of the case in your first post, that showed glaring deviations from professional standards and in doing so, a very clear case of liable/slander considering that the detective knew information was false, withheld evidence, then exploited that by posting false information on the internet and embelishing it further all the while knowing he was in part, responsible for the conviction under appeal and that no sentence had been served. While this may have even been information that someone viewing it on the net might verify and find false, but the problem is that they don't. It is important as to exactly who is sued. In the case BB cited, Cubby, Inc. v. CompuServe, Inc. they sued the IP, not the person posting the information, the success of the suit depends on the correct person being sued. In succesful suits, it has been the person and/or the website who were sued not the IP.

This case is similar to another thread where BB and I disagreed last July https://forum.freeadvice.com/showthread.php?t=186743&highlight=slander+removed
A part of this thread involved a person posting false statements about evidence I presented in court, evidence that the accuser posted on the net proving their comission of a crime. There was nothing false about my evidence and it was appropriately presented in court, not on the internet, but would be a matter of public record. They then used my name and made false accusations about my credentials, on the same site where they had posted the information about their crime after removing their post, which if anyone looked up would find that the accusations were false, but people don't, instead, several people reacted to the false accusations. When I discovered this, I documented everything, contacted the persons who reacted to their post and my colleagues who were also associated with the false claims. I then contacted the site administrater, who promptly removed the post accusing me, however my accuser continued to make false accusations, even going so far as to try to accuse me of causing a person in another case to commit suicide because of my evidence and that for my "crime" was sentenced and served a jail sentence!

Only problem was the truth was that the person, who was in fact suicidal, lost their license as a result of their actions and the evidence. Following the judges decision, they claimed in a newspaper article that I had caused them to do the things which lead to them loosing their license. I only collected evidence, never testified. They had represented themsleves in court, bringing a whole new meaning to the old saying and then vowed to appeal on grounds of inadequate counsel! The AG's office and I sat back and waited for the appeal which never came. Later, they began practicing on the internet without a license. Bottom line, they are very much alive and of course I never served any time for a suicide that never occured, but some people actually believe this story.

I have no case against the IP or site because they promptly removed the post, however I do have a case against the person who posted the false claims to intentionally harm my reputation and I have more than one documented injury, nor is this all that happened and nothing is settled yet.

The same is true for the case BA presents, both the detective and the company can be sued because the false information was posted on their site and goes beyond simple liable because the detective acted with knowledge that the facts were false in an attempt to promote his forensic work and damage the plaintiff. Their refusal to remove or amend the informaiton on the site to at least match public record, adds insult to injury, because it was placed there with intent and knowledge, violates their professional duty, removing it only after a lawsuit is filed is too little too late.

I agree with BB, the detective is their own worst witness. I am appaled at such a thing happening with forensic experts who by definition are bound to deal with truth and evidence as defined in FRE 702, based on the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. 113 S. Ct. 2786 (1993), this is a higher standard than the general public. The defendent would be wise to settle before this becomes something more, because there are issues that also violate USC codes and sever it's ties with the detective if they have any credibility. As I said, even with a settlement, plaintiff has the right to file various administrative complaints, which would in turn affect the future of the defendant company, this would be in the service of public policy.

$25K or $50K is less than it is going to cost to fight it and any future costs or loss of income defendent company might have after all the other professional consequences. It won't cost the plantiff a dime to file their other complaints. Something to think about.

 

[BelizeBreeze]

The same is true for the case BA presents, both the detective and the company can be sued because the false information was posted on their site and goes beyond simple liable because the detective acted with knowledge that the facts were false in an attempt to promote his forensic work and damage the plaintiff.

This is where you lost me. There is nothing in BA's post that proves the detective acted with knowledge that the facts were false. In fact, on clarification BA stated the detective made the comment BEFORE the company was formed.
In the worst light the comment can be viewed as detrimental to the defendent's veracity. However, you are assuming that the Plaintiff can prove the connection between the statement of opinion AND later actions supporting his claim of libel. That is a matter of fact for the plaintiff to prove and the judge to decide on the presentation of that proof.

 

[rmet4nzkx]

This is where you lost me. There is nothing in BA's post that proves the detective acted with knowledge that the facts were false. In fact, on clarification BA stated the detective made the comment BEFORE the company was formed.
In the worst light the comment can be viewed as detrimental to the defendent's veracity. However, you are assuming that the Plaintiff can prove the connection between the statement of opinion AND later actions supporting his claim of libel. That is a matter of fact for the plaintiff to prove and the judge to decide on the presentation of that proof.

BB,
BA in paragraph 4, continues stating:
"The member of the company that had investigated this case as a police detective (before he went private), at a conference, had been overheard talking about the case and made admissions that he knew there really wasn't evidence to support the charges in the first place and that he might have misled prosecutors as to what some of the evidence represented. Following this detective, helped form defendent company, falsly advertized his competency re this case knowing that his statements were both false and that he had mislead prosecutors, the same prosecutors who subsequently dismissed the case once they realized plaintiff was not guilty.

"additional evidence came to light while the appeal was pending that the individual was not, in fact guilty (think... technical evidence that no one really had figured out at the time of trial). (Or withheld by detective?)
.... There was also a lower court ruling against the individual in question(detective) (My friend, representing the company, believes that what really drove the reversal was the exculpatory evidence discovered in the record during briefing to the State Supreme Court).....After the reversal, the prosecutors re-reviewing the case figure the guy wasn't actually guilty afterall, and dismissed the charges."
Apparently the detective's actions were eventually uncovered, yet still refused to remove the post which he knew to be false prior to posting it, not facts, not opinion supported by facts.

 

[BelizeBreeze]

And all you have posted here alludes to a link without proving such existed. Or are you privy to the mind of the prosecutor and why that office did not bring charges against the detective? Or why there was no misconduct or civil case brought at the time against the detective?

I can also assume that because no actions were taken that all parties, including the defendent in the above case, did not feel, at the time that there was sufficient evidence to prove misconduct.

But then I'd be as weak in my analysis as you are. And I don't assume anything not in evidence.

I never said there was NO link. What I said and continue to try to get through to you is, there is a burden on the plaintiff to prove such a link, that that link resulted in intentional actions which resulted in the libel and that the defendent INTENDED there to be.

Again, your line of reasoning does not justify the facts. Unless, of course, you'd like to fly to the University of Virginia and stand across from me in moot court and argue the case. I can make the appointment if you're completely sure of your facts.

 

[rmet4nzkx]

And all you have posted here alludes to a link without proving such existed.
Of course, I can only go by what BA relays that the defense claims or admits and knowledge from experience of how such things pan out, from a different perspective than you, I deal with facts and evidence, I don't argue it beyond the various outcomes.

Or are you privy to the mind of the prosecutor and why that office did not bring charges against the detective?
I'm only repeating what BA wrote, we have no idea what if any charges or investigation may have occured as a result of what came out in court, and in places where the courts have been mandated to "report" to other entities, it doesn't happen, I could cite examples in another state, that is why it usually relies on someone taking that initiative.

Or why there was no misconduct or civil case brought at the time against the detective?
There may be, in one of the cases I cited it was 5 years from the time that the complaint was lodged and the results of the judge's decision published, prior to that everything was not published, you had to have knowledge of it to access the record, in the mean time, defendent denied, under oath there were any cases pending.

I can also assume that because no actions were taken that all parties, including the defendent in the above case, did not feel, at the time that there was sufficient evidence to prove misconduct.
We don't know that no actions have been filed or that plaintiff knows all their options.
Remember BA stated that plaintiff would have been happy if the accusations had been removed, but they failed to do that, it doesn't mean they have no evidence.

But then I'd be as weak in my analysis as you are. And I don't assume anything not in evidence.
My assumptions are based on what BA said and that there is more to the story that they don't know. None of us have any facts, but have to assume in order to discuss. What is stated and admitted is enough to at least violate professional conduct insofar as forensic issues and question all defendents claims.

I never said there was NO link. What I said and continue to try to get through to you is, there is a burden on the plaintiff to prove such a link, that that link resulted in intentional actions which resulted in the libel and that the defendent INTENDED there to be.
To advertize and publish as fact, that a sentence had been served, when in fact, none had been served but rather stayed under appeal, and fail to correct that, when defendent had knowledge of this prior to publication, is proof of both their knowledge and their intent since it takes a lot of trouble to publish on a website.

Again, your line of reasoning does not justify the facts. Unless, of course, you'd like to fly to the University of Virginia and stand across from me in moot court and argue the case. I can make the appointment if you're completely sure of your facts.

You would just love that! I think you just love to argue with petite readheads, shall I wear my stilettos?
Maybe lunch?

 

[BelizeBreeze]

To advertize and publish as fact, that a sentence had been served, when in fact, none had been served but rather stayed under appeal,

WRONG! the sentence was stayed PENDING appeal. Big difference.

and fail to correct that, when defendent had knowledge of this prior to publication, is proof of both their knowledge and their intent since it takes a lot of trouble to publish on a website.

And I can produce Thousands of people (myself included) who can put together an e-commerce website complete with credit card transaction, validation and processing with 24 hours. So that point is invalid.

I'm done arguing this case. I gave my position, which I'm confident on arguing in front of a judge, a jury or my old commrades still staring into computer monitors and 'speaking' with satellites.

The only valid point at this juncture is the burden of proof is solely on the plaintiff. So, the defendent can either take their chances with FULL knowledge of the facts or not.

 

[meganproser]

BB wrote: ”As to the statment "Ultimately served a 5 year prison term" I have trouble with where you got that. In BA's original post the statment was "...was convicted, served a prison term, etc." NOT the same.”

MP writes: Post 6, paragraph 7. “The statements did not report they came from the trial, they were statements of fact, "Plaintiff did X, Plaintiff did Y, Plaintiff was sentenced and ultimately served a 5 year prison term." Some statements on the website were not consistent with anything reported.”

BB wrote: “It can be argued that conviction WAS the result and that a prison term was also a fact. The fact that was NOT stated was that the prison term was stayed.”

MP writes: A correct report of the facts would have been that the guy was SENTENCED to five years. The publisher not only omitted the fact that the term was stayed, he precluded the possibility of a stay, by assuring readers that the term had been served.

MP wrote earlier: "The failure to investigate after notification of the falsity of the publication constitutes circumstantial evidence of doubt regarding the truth of the statements published. This equates to reckless disregard or “malice”. See Stephen J. Barrett, et al. v. Ilena RosenthalA096451 (Cal. App. Crt., 1st App. Dist., October 15, 2003) "

BB wrote: “There have been no statments as to what transpired immediately after the defendent received notification of the claim, it's your assumption that no investigation had transpired.”

MP writes: The info on the site was provably false. Either the defendant failed to investigate in a timely manner, which will qualify as “reckless disregard/malice”, or he investigated but chose to leave false info on the site anyway, which also qualifies as “reckless disregard/malice”.

BB wrote: “And as stated earlier, the simple claim of a wrong is not a requirement that an investigation occur.”

MP writes: You are talking about the responsibility of a DISTRIBUTOR. The detective’s company is the original publisher in this case. They had a duty to check their facts BEFORE publishing them and certainly failure to investigate a claim of wrong after the fact, indicates a reckless disregard.

BB wrote: “And where, in case law, can you uphold your opinion that a defendent has a DUTY to learn the outcome of the case?”

MP writes: I was referring to their duty to be sure of their facts before they published the info to begin with. The detective should not have published his assumption that the sentence was served.

BB wrote: “What I DO have a problem with during every analysis you have made on this website is the fact that you allow your own opinion and bias to enter into your analysis and therefore are unable to evaluate a case on its facts.”

MP writes: I am no more biased than you are. I am quite capable of evaluating a case on its facts. When I editorialize, it’s because I am writing with the average reader in mind.

Finally, I will say that even without the "evidence" that the detective had knowledge of the plaintiff's innocence BEFORE he published the report on the net, the plaintiff has everything he needs to win the case and collect punitive damages.

 

[badapple40]

Apparently the company refuses to settle, its a pride issue. My friend has promised to keep me apprised, and I'll let you all know.

 

[meganproser]

There is always a chance the Plaintiff's attorney will screw up the solid case he's got. Have you seen Franklin Prescriptions, Inc. v. The New York Times Co.?

http://www.rcfp.org/news/2004/0324frankl.html

 

[badapple40]

By means of an update to this case, my friend filed a motion to dismiss, the plaintiff filed an opposition, and my friend is drafting the reply, due today. I guess they are going to have a hearing on it in early january.

 

[badapple40]

By means of another update, the federal Judge denied the 12(b)(6) as to all counts, all claims. Bill is not a happy camper and is trying to settle...

 

[rmet4nzkx]

Thanks for the update!