Nina Ginsberg, Covid-19 and the Criminal Justice System; Johnny Depp Takes His Suit to Washington; What Have Your Attorneys Done for You Lately?; DG/30 Milestone
By Stacey Rose Harris
Judge Bruce White of the Fairfax Circuit Court has ruled that three out of the four statements on which movie star Johnny Depp has sued his ex-wife, Amber Heard, are actionable, and can go forward to trial.
Although neither party lives in Virginia, because the Washington Post’s servers are here, and the article was published in the online version of the paper, the Court previously ruled that it has jurisdiction over the case.
Depp’s suit arises out of Heard’s 2018 op-ed in the Washington Post, to some degree re-caps prior statements that she made about being a survivor of domestic abuse. Judge White’s opinion reaffirms the viability of a claim of defamation by implication in Virginia, that is, when the defamatory statements are not explicit on their face, but their derogatory meaning can be fairly inferred.
While the article does not explicitly accuse Depp of abuse, the three defamatory statements in it that survived dismissal were:
- “I spoke up against sexual violence – and faced our culture’s wrath. That has to change.”
- “Then, two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”
- “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”
In none of these statements—nor in the article itself—is Depp referenced by name. Nevertheless, under the leading Supreme Court of Virginia case of Pendleton v. Newsome, 290 Va. 192 (2015), Judge White ruled that the statements could reasonably be construed by a jury to clearly implicate that Depp sexually abused Heard.
In Pendleton, the Supreme Court of Virginia made clear its approval of claims for defamation by implication. In that case, a child died at school after suffering a fatal peanut allergy reaction. The plaintiff was the child’s mother, who had unsuccessfully asked the school to keep an Epi-Pen on hand for her child. After the child’s death, the school issued a public statement that stated that it is “a parent’s responsibility to provide the school with accurate, timely information; a health emergency plan…and the medicine necessary to execute the plan․ If any one of these items is missing, the doctor’s orders cannot be carried out. The school…relies on parents to follow through.” The Court held that statement can fairly be interpreted to imply that the child’s mother failed to properly equip the school to deal with such an emergency, and accordingly the case could proceed to trial.
Thus, relying on Pendleton, Judge White held that the facts, as pleaded, “would reasonably cause the three statements above to convey the alleged defamatory meaning that Mr. Depp abused Ms. Heard.”
One statement upon which Depp sued did not survive, and that is Heard’s statement that she had to change her phone number weekly to evade death threats, and that she “felt as though I was on trial in the court of public opinion – and my life and livelihood depended on myriad judgments far beyond my control.” This statement, the court held, was too subjective and opinion-based to be actionable.
In the same opinion, the court also rejected Heard’s statute of limitations defense. She claimed that article only re-iterated statements made in 2016. The court did not agree, finding that re-publication triggered the running of a new statute.
By Corey Pray
The COVID-19 crisis has substantially impacted the criminal justice system, creating new challenges for both criminal defendants and criminal defense attorneys. From the safety of inmates held in prisons, to delays in criminal dockets, to new technologies for attorney-client communications, the criminal justice system is facing a “new normal.” Nina Ginsberg, a founding partner at DimuroGinsberg, P.C. and current president of the National Association of Criminal Defense Lawyers (NACDL), reflected on some of these challenges and the efforts of organizations such as NACDL to address them.
The biggest and most visible impact of COVID-19 on the criminal justice system is the health and safety of the prison population. The Bureau of Prisons (BOP) reported that as of April 19, 2020, 495 federal inmates and 309 BOP staff have tested positive for COVID-19, and 22 federal inmates have died from the virus.1 “The most important thing for authorities to do immediately is to get inmates who have committed low-risk offenses or technical violations out of prison,” said Ginsberg. “Parole, supervised release, and home confinement are viable alternatives that should be used as an alternative to incarceration. The time to release certain categories of inmates is now, while they are still safe. If more aggressive action is not taken, large portions of the prison population will remain at risk,” she continued.
While some inmates must remain in prison, releasing those who can be released significantly improves the ability of prison authorities to implement better precautions. “The more measures authorities take to remove low-risk offenders from prison, the more feasible it is to implement social distancing measures,” said Ginsberg. Some prison systems have already decreased population sizes and have implemented protocols that every new arrestee or anyone who might have been exposed to COVID-19 gets placed in an isolated part of the jail. Ginsberg believes that these rigorous protocols “have a reasonable chance of keeping COVID-19 out of jails and should be implemented nationwide.”
Ginsberg also believes that these efforts could result in positive, permanent changes. She explained, “releasing low-risk inmates and successfully implementing alternatives to incarceration may cause some prosecutors and judges to see that this can be done safely. As a result, higher numbers of individuals accused of less serious violations could be released on bond or given lesser sentences. We may see assumptions change about how punitive sentences should be and how much incarceration is necessary.”
The COVID-19 crisis is likely to have other long-term impacts on the criminal justice system. Ginsberg said she is particularly concerned with the financial impact of shutdowns on courts and the practice of law. “Most people charged with crimes are represented by public defenders or court-appointed lawyers. Many public defender offices are already under-resourced and under-paid, and many of these offices are funded by state crime commissions or county budgets. State and local budgets will be badly hit by COVID-19. Many criminal lawyers, who are mostly sole practitioners or from small firms, may have trouble resuming their practices,” said Ginsberg.
Many criminal defense organizations are taking actions to address some of these novel challenges. For example, NACDL has set up a Coronavirus Resources page on its website in an effort to aggregate resources from around the country, including pleadings, motions, rulings, and other court papers related to COVID-19. Speaking about these efforts, Ginsberg said, “We’ve encouraged our members to contact prosecutors and judges about facilitating compassionate release and early release. We’ve already seen some success from these efforts, as many courts have directed sheriff’s departments to release low-risk inmates who have short periods left in sentences or have been arrested for minor infractions. NACDL is also working closely with Families Against Mandatory Minimum to identify inmates in the Bureau of Prisons who qualify as candidates for compassionate release under the First Step Act of 2018. Finally, NACDL is preparing a group to assist lawyers who may need to respond to speedy trial issues that are likely to result from delays caused by COVID-19.”
NACDL’s Coronavirus Resources page can be accessed at https://www.nacdl.org/content/coronavirusresources.
1 Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited Apr. 20, 2020).
On Thursday, May 5, DiMuroGinsberg presented a webinar to assist you in understanding the new paid leave requirements. “The Families First Coronavirus Response Act: What you Need to Know” led by employment attorney Jonathan Mook included a wealth of information that we share with this audio and presentation.
Covid-19—It is an Opportunity to Profit at the Expense of Others; Jonathan Mook Takes His FFCRA Knowledge on the Road; Covid-19: Some People are not Playing Nice; DGwebinar—don’t forget May 5th; DG/30 Milestone
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