It was closing argument day November 1 in U.S. District Court, the site of former UVA associate dean Nicole Eramo’s defamation trial against Rolling Stone for its now-retracted “A Rape on Campus,” and lawyers for both sides spent more than three hours each trying to sway the jury to find for their clients.
Plaintiff’s attorney Tom Clare noted the “tremendous amount of material” thrown at jurors during the trial, which is now in its third week, and he tallied the 12 live witnesses, 11 hours of video and 286 exhibits that have been presented.
He returned to the theme from his opening argument: “This is a case about journalism,” not about rape, nor whether Jackie, the troubled young woman whose tale of a gang rape at a fraternity actually happened, nor whether victim choice on reporting sexual assaults on campus is a good thing.
The case, he said, is about how people like Nicole Eramo, who was the sexual assault point person at UVA, “became collateral damage in a sensational story.”
Clare described the “avoidable” missteps Rolling Stone and reporter Sabrina Rubin Erdely made, which were investigated and identified in a lacerating 13,000-word report in the Columbia Journalism Review, as “Journalism 101” at least a half dozen times.
“Erdely has a career of writing stories about institutional indifference,” said Clare. He dubbed her MO the “three Vs”– victim, villain and vindicator. In “A Rape on Campus,” Jackie was the victim, Eramo the villain and Rolling Stone and Erdely were the vindicators, exposing UVA’s callous handling of sexual assault, he said.
Because a judge ruled Eramo is a public figure, she has to prove Erdely and Rolling Stone acted with actual malice, and according to Clare, Erdely’s failure to corroborate Jackie’s claims, her departure from Journalism 101 standards and a preconceived story line constituted a “reckless disregard for the truth,” which is part of the actual malice definition.
Clare also cited “giant waving red flags,” and had a high-production value presentation to show jurors Rolling Stone’s marked-up copy before and after facts or quotes had been edited out, complete with a red pen striking through the deleted material.
Among the red flags: Jackie only introduced Erdely to people who had heard the story from Jackie, but refused to identify the alleged perpetrator of the gang rape or the three friends she claimed discouraged her from going to the police after the alleged September 28, 2012, incident, said Clare.
Nor did Erdely attempt to find “Armpit” and “Blanket,” two of Jackie’s alleged assailants at Phi Kappa Psi, or physical evidence of the rape, such as Jackie’s bloody, torn dress or her medical records for the syphilis she claimed she contracted, said the attorney.
Most damning, according to Clare, was that Rolling Stone had removed from the story the fact that Eramo took Jackie to the police after Jackie was allegedly beaned with a bottle in April 2014. “That’s actual malice,” said Clare.
Not surprisingly, defendants’ attorney Scott Sexton disagreed.
“There’s a temptation to piggyback on the mistakes” in the article, he said. “We acknowledge those mistakes.” But even if Rolling Stone had not used Jackie’s story of a gang rape, “it would not have prevented them from publishing a story about how UVA responds to rape,” he said.
And because Eramo is a public figure, “a highly compensated official at a state institution,” he said, that’s why she has to prove malice.
“We are entitled to criticize public figures,” said Sexton.
He dismissed Clare’s red flags: “Roughly 97.3 percent of what Mr. Clare said in his opening is irrelevant.”
Yesterday, Judge Glen Conrad dismissed Eramo’s claim that the article defamed her by implication, which included the illustration of Eramo that she testified made her “look like the devil.”
“Gone,” said Sexton.
He disputed the three specific statements in the article that Eramo claims are false: that she discouraged Jackie from sharing her story, that she said, “Nobody wants to send their daughter to the rape school,” when Jackie sought rape statistics, and that Eramo had a “nonreaction” when Jackie told her in April 2014 that two other young women had been gang raped at Phi Psi.
The latter, said Sexton, “is not even defamatory,” because Erdely had asked Jackie to describe Eramo’s face when she told her about the other alleged incidents.
He said actual malice means the defendants would have to have published the story with knowledge of or with reckless disregard of the statements’ falsity.
Erdely found Jackie credible, said Sexton, as did the editors and fact checker at Rolling Stone.
“This is what serious doubt looks like,” he said, showing a copy of the 1:54am December 5, 2014, “our worst nightmare” e-mail Erdely sent to Rolling Stone deputy managing editor Sean Woods when she no longer believed Jackie credible.
And Clare’s contention that Erdely was negligent in failing to investigate Jackie’s bogus claims is not actual malice, explained Sexton.
Both attorneys displayed verdict forms the jury will use for each of the defendants after it determines whether the story was actionable and whether the defendant acted with actual malice.
Clare marked the two questions with “yes.” Sexton marked his with “no.”
The jury will begin deliberations Wednesday morning.
After the hearing, Eramo attorney Libby Locke said she thinks the jury deliberation is “going to be very quick,” because the actual malice is “very compelling.”
If the jury finds in Eramo’s favor, the next phase of the bifurcated trial is damages, which Locke said will probably take a half day. “I think it’s going to be a heart-wrenching phase of the trial to hear how this has affected Nicole and her family.”