The third week of former UVA dean Nicole Eramo’s $7.5 million defamation trial against Rolling Stone began October 31, and in a nod to Halloween, Eramo chose black and orange attire for her court appearance. Her attorney, Libby Locke, came in sporting crutches, but those were not a costume and came from a sprained ankle over the weekend, according to the judge.
Otherwise, it was a trial day with a hint in the air that it all might be over soon, especially after Judge Glen Conrad dismissed a portion of Eramo’s claim that the overall article, “A Rape on Campus,” defamed her by implication.
No reasonable juror would find that “the story implies that Eramo was a false friend to Jackie who pretended to be on Jackie’s side while seeking to suppress sexual assault reporting,” the judge ruled. He also found that Eramo did not establish that the defendants “designed and intended this defamatory implication.”
Rolling Stone called it “a critical element” of Eramo’s case, and said in a statement, “We are pleased that the judge recognizes the limitations of Plaintiff’s lawsuit and we trust the jury will find that her remaining claims also have no merit.”
Conrad refused to throw out other parts of the suit, and he said the jury will consider “the things Jackie said to Eramo, things that can be read that Eramo was indifferent to sexual assault victims” and whether Eramo discouraged the reporting of sexual assault.
And the magazine had less success in arguing that its republication of the story on December 5 and 6, 2014, with editor’s notes that first said the magazine’s trust in Jackie was misplaced and then that the mistakes were the magazine’s responsibility, did not constitute actual malice.
“Every time a publication enters a correction, that would constitute republication,” said Rolling Stone attorney Elizabeth McNamara.
“You and I are going to have to disagree on that,” said Conrad.
The judge cited Rolling Stone founder Jann Wenner’s testimony from Friday, in which Wenner said that in order to understand what is being taken back, you have to reread the article. ”That can be deemed republication under that law,” said Conrad. “I’m going to let the jury decide.”
The magazine called to the stand Susan Davis, UVA associate vice president of student affairs, who was the point person between the university and the Office of Civil Rights when it began its investigation into UVA’s handling of sexual assaults in 2011.
Davis’ name came up in testimony last week in an e-mail, in which she said she wanted to kill a story the UVA alumni magazine was working on about sexual assault on campus unless it was substantially revised. The alumni magazine piece was in the works that same fall Erdely was reporting the Rolling Stone piece, and it never ran.
Davis testified that the OCR investigation had been dormant for 17 months until November 20, 2014, the morning after Rolling Stone published “A Rape on Campus,” the now-debunked tale of first-year Jackie’s gang rape at a fraternity.
In its September 2015 findings, the OCR determined UVA did not promptly investigate two cases of assault at fraternities, presumably Jackie and Stacy, who was also in the Rolling Stone story, although Davis said she did not know to which cases the OCR report referred.
The jury got a replay of Erdely’s recording of a September 12, 2014, dinner she had with Jackie, Alex Pinkleton and Jackie’s boyfriend, Connor, who learns that Jackie allegedly got syphilis from the alleged gang rape.
“Oh, that made my heart leap a little,” Connor said. Jackie assures him the STD is no longer a problem. When Erdely asked her for medical records, Jackie said she’ll get them from her mother, and then back tracks. “Actually she doesn’t have them,” said Jackie. “I never told her.”
On rebuttal with Erdely back on the stand, Locke pointed out the inconsistency.
“She was thinking out loud,” said Erdely. “She was flustered.”
Locke also focused on Jackie referring to Phi Kappa Psi, the fraternity where she claimed the gang rape occurred, as “Pi Phi,” which is a sorority, rather than Phi Psi in an interview with Erdely.
“I knew Pi Phi is a sorority,” said Erdely, “and I didn’t think she was telling me she was raped at a sorority.”
Locke pointed to another instance in Erdely’s notes where Jackie says Pi Phi. “She doesn’t have her story straight,” said Locke.
“No, it isn’t that she doesn’t have her story straight,” said Erdely. “It’s all Greek to her.”
Shortly after 2pm, with all evidence in, the judge dismissed the jury for the day, and was greeted with an arm pump and a “yay” by one of the jurors.
The jury returns for closing arguments Tuesday morning.