Articles about ex-judge's bail decisions not defamatory

A series of newspaper articles and an editorial about a retired judge’s performance of his duties did not defame the former public official, the Virgin Islands Supreme Court ruled earlier this week.

The opinion by the court, which was established relatively recently in 2004, provides strong precedent for causes of action stemming from First Amendment-protected activities in the U.S. territory.

The decision affirmed a trial judge’s dismissal of Leon Kendall’s defamation claims against the Virgin Islands Daily News and one of its reporters. Specifically, the judge failed to prove that the pieces, which appeared in the paper between April 2004 and February 2009, were published with actual malice — knowledge of or reckless disregard for their falsity — the court held. Moreover, an April 2007 editorial calling for the judge’s resignation was constitutionally protected opinion, the court found.

In addition to the editorial, several news articles on two other topics defamed Kendall, he alleged in his lawsuit: the judge’s decisions to release from custody three men who allegedly committed separate violent acts, including the alleged murder of a 12-year-old girl; and his decision to retire.

In March 2010, a jury found for Kendall and awarded him $240,000 in damages. That May, however, the court granted the media defendants’ request for a directed verdict, a procedure that allows a trial judge to overrule a jury verdict if the judge concludes there was insufficient evidence presented at trial upon which a reasonable juror could find the way the jury did.

Kendall appealed to the Virgin Islands Supreme Court, the only appellate court in the territory. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of the paper and reporter.

“Judge Kendall has failed to present sufficient evidence upon which a reasonable jury could clearly and convincingly find actual malice with respect to any of the publications [on which the defamation claims were based],” the court stated in its opinion, released Wednesday.

Many of Kendall’s arguments about what constituted actual malice were “unpersuasive in establishing” that standard, the court found. For example, one of the articles at issue reported a five-hour standoff between police and a recently convicted rapist whom Kendall allowed to remain at home on house arrest the weekend before he was to report to jail. The judge claimed the article’s statement that he had released the man “to spend the weekend in the community unsupervised” was false and defamatory, and relied on the reporter’s testimony that she had no source for the statement as evidence that she fabricated it and either knew it was false or recklessly disregarded its truth — an argument the court rejected.

The reporter “did admit that no one she interviewed used the specific word 'unsupervised.' But she also testified that she had spoken to the Attorney General and an Assistant Attorney General and they had told her ‘that Judge Kendall allowed [Williams] to go home for the weekend to get his affairs in order.’ In addition to this information, [she] was present during [the] standoff with police and observed firsthand that [the convict] was in the community unsupervised.

“And while further investigation may have allowed [the reporter] to more accurately report the specific circumstances surrounding [the] release, Judge Kendall has failed to clearly and convincingly establish that the Daily News or [the reporter] either knew that the statement was false or recklessly disregarded the truth.”

The court also rejected Kendall’s argument that a statement in the editorial that he shows “bias” in cases involving defendants charged with domestic violence was actually a factual assertion that he has committed unethical conduct and violated his oath as a judge, rather than protected opinion reasonably supported by disclosed facts.

"The editorial makes no such assertion. Rather, it provides a factual basis for the author’s opinion, which is not provable as false,” the court stated. “The editorial clearly states that its basis for stating that Judge Kendall shows ‘bias’ are his decisions where he ‘routinely eliminate[d] bail for men, even repeat offenders, who [were] charged with especially violent crimes including sexual abuse crimes.’”