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This week, 10/30

Dr. Jalane Schmidt and reporter Lisa Provence outside the courthouse. Photo by Jenny Mead

“The plaintiffs: Who’s who in the fight to keep Confederate monuments” was a fairly straightforward feature story we published in March, about the 13 people and organizations suing the city over council’s vote to move the Lee and Jackson statues.

As I wrote in an editor’s letter back then, “Much blame (not to mention death threats) has been showered on those who want the statues to be moved, but little attention has been paid to those suing to keep them in place.” Who were the people who cared so deeply about the Confederate monuments, even after the horrific violence of 2017, that they would sue the city to keep them in place? Our story, by then-news editor Lisa Provence, was an attempt to shed light on that question. 

In response, one of those plaintiffs, Edward Dickinson Tayloe II, sued this paper, Provence, and even UVA professor Jalane Schmidt, a source in the story, for $1.7 million, claiming that by relating the facts of his family’s slave-holding history, we were defaming him and implying that he was racist.

Yesterday, in a packed courtroom, Albemarle Circuit Court Judge Claude Worrell dismissed the case, declaring that neither Schmidt’s comments nor the story as a whole were defamatory or libelous. But while it’s a victory for free speech, it still took five months and many thousands of dollars in legal fees to get there. 

SLAPPs (Strategic Lawsuit Against Public Participation) have, according to the Reporters Committee for Freedom of the Press, “become an all-too-common tool for intimidating and silencing criticism through expensive, baseless legal proceedings.”

Virginia is one of many states that has passed an anti-SLAPP law, but in this case Judge Worrell declined to award attorney’s fees to us or Schmidt, because he was dismissing the case on other grounds. That’s troubling. Eden Heilman, the ACLU attorney representing Schmidt, argues that the mere possibility of a costly legal proceeding can be enough to intimidate people from speaking up, even if the suit is baseless.

The threat of wealthy individuals weaponizing the courts when they are covered in ways they disagree with remains very real. 

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In brief: Basketball fever, deadly tracks, terrorizer pleads, and more

Boylan Heights goes nuts March 30 as UVA takes down Purdue to advance to its first Final Four since 1984. Martyn Kyle

Buzzer beater

UVA heads to the Final Four in Minneapolis April 6 after a heart-stopping 80-75 win over Purdue’s Boilermakers, thanks to a last second bucket by Mamadi Diakite to put the Cavs into overtime. The win marks Virginia’s first appearance in the Final Four since 1984, coach Tony Bennett’s 10th year leading the Hoos, and redemption for last year’s first-round loss to a No. 16 seed.

Guilty plea in CHS threat

Albemarle High senior Joao Pedro Souza Ribeiro, 17, pleaded guilty March 27 to making a racist threat online that shut down Charlottesville city schools for two days last month. The Daily Progress reports Ribeiro told a juvenile court judge that he was “bored” in study hall and posted the threat as a joke. He’ll be sentenced April 24. Another Albemarle teen was charged with a felony for a shooting threat to Albemarle High, but police have not released his name.

Suing Alex Jones

Federal Judge Norman Moon ruled that Clean Virginia exec Brennan Gilmore’s defamation lawsuit against Infowars, conspiracy theorist Alex Jones, and others of his ilk can proceed. Gilmore videoed James Fields plowing into protesters August 12, 2017, and he alleges the defendants spread false information about him, resulting in death threats against him and his family. Jones is also being sued by Sandy Hook parents for claiming the mass murder of children was staged.

One train, two deaths

A Buckingham Branch train struck Sebastian Herrera, 39, of Waynesboro, around noon March 31 in Crozet, and then hours later killed an unidentified man in Waynesboro. Herrera, the third person to die on the train tracks in Crozet since 2015, was killed near Lanetown Road, close to where a Time-Disposal employee died last year.

Orange hotbed

The gated community Lake of the Woods has been the scene of alleged criminal activity recently. Ryan Chamblin, 36, was indicted on 161 counts of possession of child porn March 25. He’d previously been charged with five counts and two of failure to register as a sex offender. That same day, Stafford resident Roy C. Mayberry, 46, was indicted for embezzling more than $450,000 from the Lake of the Woods Association.

Quote of the week

“It’s clear that you would lynch me if you could so I’m never concerned with your thoughts.” —Mayor Nikuyah Walker in a Facebook comment to Justin Beights, who sarcastically said her negativity is inspiring.

Crime pays—a little into government coffers

Cash-strapped localities have been known to use speed traps to plug their budget holes (ahem, Greene County), and after the Department of Justice found that law enforcement in Ferguson, Missouri, had effectively been acting as tax collectors (bringing 23 percent of the town’s revenue in fines and fees), a 2017 report said that a number of other municipalities were doing the same thing. But it’s not the case in Charlottesville and Albemarle. 

“CPD does not use ‘speed traps,’” says Charlottesville police spokesperson Tyler Hawn. “We use traffic enforcement to ensure drivers are following the posted speed limits and rules of the road for everyone’s safety.”

As City Council finalizes its 2020 budget, it voted April 1 to up the local meals and lodging taxes (and seems likely to not raise the real estate tax, after “finding” another $850,000). With all that cash, citizen criminal activities make a small revenue contribution to the proposed $188 million budget. Albemarle County also gets revenue from convictions, a .1% pittance in its $487 million budget.

Here’s how some of the numbers stack up in the proposed fiscal year 2020 budget.

Charlottesville

Court revenue $500,000

Parking fines $420,000

Property tax $73.3 million

Meals tax $14.9 million

Lodging tax $6.4 million

 

Albemarle

Fines and forfeitures: $457,282

Property tax $201 million

Meals tax $9.8 million

Lodging tax $1.2 million

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Fraternity knew Jackie’s claims sketchy, but kept silent, says Rolling Stone

After the Rolling Stone article was published in 2014, angry protesters gathered outside the Phi Psi house. Photo Martyn Kyle

The national Phi Kappa Psi organization was in court last week seeking to quash subpoenas from Rolling Stone, which contends both the national and UVA chapter of the fraternity knew there were “factual discrepancies” in Jackie’s story of a gang rape before the magazine published its now infamous “A Rape on Campus,” but kept quiet about those discrepancies to both Rolling Stone and to UVA then-associate dean Nicole Eramo.

Had the fraternity spoken up, the article “never would have been published,” said Rolling Stone in a court document.

The local Phi Kappa Psi chapter, scene of Jackie’s tale of a now-discredited alleged gang rape, is suing Rolling Stone for $25 million, the third defamation case stemming from the November 19, 2014, article.

Last fall, a jury awarded Eramo $3 million, a verdict Rolling Stone is trying to get set aside. And a suit filed by three fraternity brothers was thrown out.

At the April 5 hearing, the attorney for the national Phi Kappa Psi organization argued it was a separate legal entity from the local chapter. Rolling Stone’s subpoenas seeking information from all 99 chapters was “absolutely invasive” and “absolutely unnecessary,” said attorney Dirk McClanahan. “They don’t need to hunt down our dirty laundry.”

While the local chapter will produce the documents requested, he said, “The guys in Des Moines who are busted for hazing or drinking are categorically irrelevant.”

Rolling Stone attorney Jonathon Fazzola disagreed and said embarrassing members affect both the national organization and chapters throughout the country. “They’re inextricably linked,” he said.

Two months before the Rolling Stone story was published, said Fazzola, the national organization was contacted by UVA with Jackie’s allegations. It sent someone to the chapter to investigate, and prepared talking points to the media and training sessions—and consulted attorneys about libel.

Fazzola further argued that Phi Psi initially found Jackie’s allegations plausible because “it knows its own culture” and that its investigation “could be an admission it knows its own reputation.”

While Judge Richard Moore found the latter “a stretch,” he acknowledged Rolling Stone’s efforts. “If they can show [Phi Kappa Psi] already had a lousy reputation,” the article “can’t hurt it,” he said.

Moore also mentioned 2006, the year Liz Seccuro saw charges brought against Phi Psi member William Beebe for a 1984 rape at the UVA chapter. His involvement came to light when he wrote an apology letter to her 21 years later as part of a 12-step program. Beebe was convicted and served 18 months in prison.

‘It’s relevant that there have been sexual assault allegations at chapters,” said Rolling Stone attorney Liz McNamara, who defended the magazine in last fall’s federal court trial.

Rolling Stone also argued that the national fraternity did not have standing to quash the subpoenas because it was not a party in the suit, pointing out that its insurer, Holmes Murphy & Associates, had not objected to the discovery requests.

McClanahan maintained that the national org “is a victim here, too,” and that Rolling Stone had an agenda against all fraternities. He said the magazine’s 29 subpoenas are “unduly burdensome” and an attempt to “terrorize” the chapters.

“They’re saying, ‘We believe Phi Kappa Psi could be institutionalizing rape and we want to explore that further,’” said McClanahan. “What we’re getting is blind conjecture.”

Judge Moore took a break to read the subpoenas. Upon his return, he said, “I’m just not persuaded most of what’s asked for is relevant. Most are too broad.”

He quashed 13 of Rolling Stone’s 29 subpoenas.

After the hearing, Rolling Stone seemed undeterred by the denials.

“The local fraternity here is seeking a whopping $25 million in damages,” said McNamara in an email. ”Clearly their reputation is intertwined with the national reputation of Phi Kappa Psi.” PKP national has been very involved from the outset, she said, “and we believe it’s appropriate to get discovery from the national organization, and the judge agreed with us on that point.”

The case is scheduled for a 10-day jury trial starting October 23.

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Day 17: Jury awards $3 million in Rolling Stone defamation trial

Nicole Eramo faces the media scrum for the last time in her 17-day trial, and attorney Libby Locke says shame on Rolling Stone. Staff photo

As former UVA dean Nicole Eramo’s marathon $7.5 million defamation suit against Rolling Stone rolled into its fourth week, a jury awarded her $3 million in damages Monday for the magazine’s November 2014 story, “A Rape on Campus.”

“This was nothing short of a complete repudiation of Rolling Stone and Sabrina Erdely’s malicious journalism,” said Eramo attorney Libby Locke.

The award put $2 million of the liability on reporter Erdely for statements in her story and post-publication publicity, and found Rolling Stone liable for $1 million for republishing the story December 5, 2014, with an editor’s note saying it found one-named source Jackie no longer credible.

“I’m certainly happy to be putting it behind me and getting to the next chapter of my life,” said Eramo after the jury award.

“The real win was Friday and the verdict and the public repudiation of Rolling Stone,” said Locke. “Shame on them. Shame on them.”

The Rolling Stone legal team, along with Erdely and managing deputy editor Sean Woods, left by the federal courthouse back door, and when spotted in The Pointe lounge at the Omni Hotel, declined to comment, but seemed rather cheery despite the jury’s decision.

“Yeah, we’re going to appeal,” said attorney Elizabeth McNamara.

Friday, November 4, was when, after two-and-a-half days of deliberation, the jury found that Rolling Stone, Erdely and Wenner Media acted with actual malice when it published the now debunked tale of UVA student Jackie’s alleged gang rape at Phi Kappa Psi and its assertions that Eramo discouraged victims from reporting assaults and had a “nonreaction” when Jackie told her about two additional gang rapes at Phi Psi.

The jury was back in court Monday for the damages portion of the trial.

Rolling Stone attorney David Paxton, representing a chastened Rolling Stone that heard the jury’s verdict “loud and clear” on Friday and wanted “to take our medicine,” he said, reminded jurors that the scope of the initial suit had been narrowed to three statements in the story, and not the article as a whole nor the illustration of Eramo that she said made her “look like the devil.”

After the Rolling Stone article came out, Eramo’s anguish was so great, she said she curled into a ball, wanted to disappear and considered suicide, testimony that had one juror wiping a tear and another nodding her head in agreement with the harm Eramo said the story caused her.

When she first read the story, Eramo found its account of a gang rape “heartbreaking,” and she was confused. She said, “I didn’t understand why [Jackie] didn’t let me help her.”

Then she read the parts about her, and said, with her voice breaking, it was “somebody who had my name, and then the picture was somebody who had my face, but not somebody I recognized.”

The depiction of her discouraging survivors from reporting their assaults “was devastating to me,” she said. “That was exactly the opposite of what I tried to do.”

Eramo described the “surreal” feeling of walking through Grounds after the story came out with everybody upset. A SlutWalk to end rape culture ended up protesting outside her office, and “created the picture that was in the story,” she said.

Fearing for her physical safety, her husband would pick her up from work at night. She turned the more than 200 vicious e-mails she received over to University Police, and she read a sampling of them:

“I’m sickened by what I have read and you should be ashamed of yourself and how you treat victims of sexual assault.”

“You are a despicable human being.”

Another had the subject line: “Dean of rape.”

Eramo told the jury she cried constantly and couldn’t sleep or eat. Using student lingo, she said, “I was a hot mess.” She retreated into herself and “felt like a pox upon people near me,” she added.

The damages hearing also included testimony about her breast cancer. A double mastectomy had been scheduled for December 19, 2014, exactly one month after the Rolling Stone article was published.

By the end of January, she had an infection and ended up in the hospital for nine days, which caused her to abandon reconstruction and push back chemotherapy.

“I felt seriously debilitated going into my surgery,” she said.

Her doctor, Kant Lin, testified, “Stress is a very insidious thing,” and created “an unfavorable situation for surgical healing.”

Her husband, Kirt von Daacke, a UVA history professor and assistant dean, described the impact of the Rolling Stone story: “Holy cow. When the article hit, it was as if someone set the University of Virginia on fire.”

The day the article came out, he heard his wife crying at 5am. “And it got worse from there,” he said, with protests outside her office and a faculty e-mail chain calling for her to be fired. “I’ve never heard so many angry people talking about my wife,” he said.

“They destroyed her,” he said.

And on the Sunday after the article came out, he heard “sobbing from the abyss,” he said. “It was a wail I’ve never heard from her. She was curled up in the fetal position in a little ball. I don’t know how we got through that.”

He also noted, “To me, it looks like she’s aged five years in the past two years. It’s hard when you’re nearly 50 to have the career you thought you had taken away.”

Eramo’s attorney Tom Clare directed the jury to consider the injury his client had suffered from pain, embarrassment, humiliation or mental suffering. Injury to her reputation and her professional standing, including the “loss of her dream job,” should also be part of the award, he said.

“Nicole’s great-grandchildren will never know her,” he said. “What they will know is what’s on the Internet.”

Paxton countered that when her descendants Google her, “the story is going to be about the vindication of Ms. Eramo.”

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Judgment day: Jury rules in Eramo’s favor

Nicole Eramo, left, leaves the courthouse after a jury found in her favor, with her attorneys Tom Clare, Andy Phillips and LIbby Locke. Photo Eze Amos

As soon as the clerk in federal court read the first verdict finding actual malice in Nicole Eramo’s defamation lawsuit against Rolling Stone reporter Sabrina Erdely, the UVA administrator crumpled against her attorney.

And as the clerk went on to read more than two dozen statements upon which the jury had to decide in the suit against Erdely, Rolling Stone and Wenner Media LLC, with only a few exceptions, the jurors found actual malice on each count November 4.

“Today was a really good day,” said Eramo attorney Libby Locke with her client at her side, along with Eramo’s supporters. “We said all along Rolling Stone published a false article.”

Rolling Stone attorney Elizabeth McNamara declined to comment. Erdely remained composed in the courtroom, but she was weeping as she went out the back door of the U.S. District Court.

The decision came after 16 days in court and two and a half days of jury deliberation in Eramo’s $7.5 million suit stemming from the November 2014 Rolling Stone story, “A Rape on Campus.” The story, which recounted the tale of Jackie, who claimed she was gang raped at Phi Kappa Psi, quickly unraveled, and by April 2015, after a searing examination by Columbia Graduate School of Journalism, Rolling Stone retracted the story.

Eramo, who was in charge of handling victims of sexual assault and the Sexual Assault Misconduct Board at UVA, filed suit the next month, contending that the story portrayed her as a callous and indifferent administrator, according to Erdely’s preconceived storyline.

A judge earlier had ruled that Eramo is a public figure, and the jury had to determine whether Rolling Stone acted with actual malice in its publication of the story and three specific statements that Eramo contends are false: that she discouraged Jackie from sharing her story, that she said, “Nobody wants to send their daughter to the rape school,” and that she had a “non reaction” when Jackie told her in April 2014 that two other young women had been gang raped at the same fraternity.

Erdely faced the most counts of defamation, and the jury found all of the statements actionable, but did not find the “rape school” statement was published with actual malice.

The jury also believed that in post-publication interviews on the “Brian Lehrer Show” and Slate in November 2014, Erdely made statements with actual malice about Eramo, as well as in an e-mail to the Washington Post November 30, 2014.

Rolling Stone and Wenner Media were found to have acted with actual malice when the magazine republished the story December 5, 2014, with an editor’s note saying that it no longer found Jackie credible, although the jury did not believe the original November 19, 2014, story was published with actual malice.

After the verdict, Rolling Stone issued a statement and apology to Eramo.

“For almost 50 years, Rolling Stone has aimed to produce journalism with the highest reporting and ethical standards, and with a strong humanistic point of view,” it said. “In our desire to present this complicated issue from the perspective of a survivor, we overlooked reporting paths and made journalistic mistakes that we are committed to never making again. We deeply regret these missteps and sincerely apologize to anyone hurt by them, including Ms. Eramo.”

Legal expert David Heilberg, who is not connected to the case, says, “Obviously the jury thought it was more than pure negligence.”

He compares it to walking toward a goal. “The difference between negligence and actual malice is with negligence, you’re walking toward a goal and ignoring everything else. With actual malice, you’re walking toward a goal with blinders on and you’re not using your peripheral vision.”

Heilberg also says, “I find it interesting that in exactly the time where we’ve set new lows in our political discourse, the jury could find actual malice.”

The jury adjourned for the day and will return Monday for the damages portion of the trial, in which it hears testimony about how the article affected Eramo and awards some or all of her $7.5 million claim.

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Jury deliberates for third day in Rolling Stone trial

The waiting game continues Friday for Nicole Eramo, Sabrina Erdely and Rolling Stone deputy managing editor Sean Woods, along with their lawyers, support staff and the media as Day 16 in Eramo’s defamation lawsuit trial against the magazine begins and the jury deliberates for a third day.

The jury will decide whether Rolling Stone acted with actual malice when it published the now-retracted “A Rape on Campus” November 19, 2014. The story recounted first-year Jackie’s lurid tale of a gang rape at Phi Kappa Psi, which wreaked havoc on grounds at UVA before her account fell apart within a few weeks. A later Charlottesville Police investigation could find no evidence of the assault.

Eramo’s $7.5 million complaint says she was unfairly depicted as an indifferent administrator who tried to steer sexual assault victims from reporting to police to keep rape statistics low, because, “Nobody wants to send their daughter to the rape school,” a statement in the article she says she never made.

The case drew national attention, and even now reporters from the Washington Post, New York Times, CNN and ABC are waiting for a decision.

“The only thing predictable about a jury is its unpredictability,” says legal expert David Heilberg, who is not connected to the case.

And if the jury rules in favor of Eramo, the trial will continue with a damages phase, which her attorney Libby Locke has estimated could take another half day of testimony. That will send the jury back to determine how much to award.

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Day 13: Attorneys make final pitches in Rolling Stone trial

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.”

 

 

 

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Day 12: Judge tosses part of Eramo’s suit against Rolling Stone

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.

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Day 11: Wenner defiant, Eramo rests in Rolling Stone trial

After 11 days of evidence, plaintiff Nicole Eramo rested her case against Rolling Stone October 28– but not before testimony from magazine founder Jann Wenner raised stakes and eyebrows in this $7.5 million libel case.

“We have never retracted the whole article– and don’t intend to,” declared the magazine owner in a videotaped deposition played for the jury in federal court.

In the video, Rolling’s Stone’s colorful leader appeared relaxed enough to occasionally put his boots on the table and gesticulate. And curse– as when discussing an editor’s note that began the process of disavowing the 2014 story of a vicious gang rape of a woman named Jackie at the University of Virginia.

“Who wants to post something that’s, ‘Oops, we fucked up so bad’?” asked Wenner.

Dressed in a sage green jacket over an open-collared sport shirt, Wenner acknowledged the flavorful writing style and point-of-view journalism that have become Rolling Stone hallmarks, but said there was nothing casual about Rolling Stone’s approach to reporting and fact-checking. Even in this case.

“I think we were the the victim of one of these rare, once-in-a-lifetime things that nobody in journalism can protect themselves against, no matter how hard they try,” said Wenner.

The evidence has shown that Rolling Stone, to accommodate Jackie, avoided pressing its protagonist for the full name of the alleged rape ring-leader and failed to contact the three friends who comforted her the night of her claimed attack.

“We had virtually 50 years of a perfect record in the most extreme stories– highly reported, difficult, complex stories with a lot of controversy,” said Wenner. “And all of our systems worked.”

As it turned out, investigations by journalists and by the Charlottesville Police Department refuted practically every aspect of Jackie’s story, and previous trial testimony showed that the trio of friends could have done so– if only the reporter had asked. So Wenner apologized to Eramo– in his own way.

“To the extent that we have caused you damage, and obviously we have– the fact that we’re here– I’m very, very sorry,” said Wenner. A moment later, he said, “Believe me, I’ve suffered as much as you have.”

There were other moments. For instance, Wenner accused the New York Observer of manufacturing a quotation until a lawyer showed him he’d sent the words via email. But it was his claim that he didn’t retract the whole story that made Friday afternoon headlines.

“It was a full retraction of our support of all that Jackie stuff,” Wenner explained.

When pressed to explain how a reader– given Rolling Stone’s attribution errors– could ascertain which pieces of the 9,000-word story came from Jackie, Wenner conceded that he didn’t know.

“I haven’t read it in quite a while.”

Wenner’s partial retraction stance puts him squarely on the side of the defense’s theory of the case: that for all its faults and errors, Rolling Stone’s story rendered a public service by showing how UVA improperly handled sexual assault reports, an assertion validated several months later by the civil rights office of the U.S. Department of Education.

“We were not retracting the fundamentals to that story,” Wenner testified. “We’re not retracting what we had to say about the overall issue of rape on campus.”

After Wenner’s testimony, Judge Glen Conrad seemed to find Wenner refreshingly “unfiltered,” but said the partial-retraction comments kept alive the plaintiff’s allegation that Rolling Stone continued to publish defamatory statements about Eramo.

Another Friday witness– again appearing on video– included UVA’s VP for student affairs, Pat Lampkin, who declined to specify why she blocked Rolling Stone from interviewing Eramo. The magazine’s digital director, Alvin Ling, testified on video that the online version of story got 2.4 million unique visitors before the first editor’s note went up– and other 285,000 uniques before it was taken down in April 2015.

The final witness for the plaintiff– again on video– was Will Dana, the managing editor sacked in the wake of the debacle. Even after acknowledging widespread “fabrications” from Jackie, he declined to malign her.

“I feel bad for what this girl has gone through since the story came out,” said Dana. “I will give her the benefit of the doubt and assume that she has been victimized in some way.”

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Day 10: Rolling Stone’s remorse in defamation trial

The final Thursday witness for the plaintiff in the $7.5 million libel trial against Rolling Stone was Sara Surface. A friend to Jackie, Surface seemed to have a purpose in alleging that reporter Sabrina Rubin Erdely had prejudged plaintiff Nicole Eramo.

“She disregarded me because I didn’t fit the narrative,” said Surface.

An email released during the case’s discovery phase showed that Erdely viewed Surface not as a true activist, but as a “covert mouthpiece for the administration,” something Surface denied.

“If she had listened to my personal experiences and feelings,” the testy former student testified, “maybe she wouldn’t be getting sued now.”

The bulk of the testimony, however, was the second day of Rolling Stone’s deputy managing editor Sean Woods being confronted by plaintiff’s counsel Libby Locke.

In the morning, Locke asked Woods and the jurors to look at their phones to contrast text messages with the screen shots Jackie provided of text messages by two other alleged victims. Locke said it seemed suspicious since the name “Jackie”– as if she were the sender– shouldn’t be at the top of the screenshots.

Amid laughter from Woods and the jurors, several pointing out that phones weren’t allowed in the federal courtroom, Locke turned to the judge.

“Well, this isn’t going very well, Your Honor.”

Locked shifted course to emails such as the one on October 23 when Erdely opens with an F-bomb expletive to tell her editor the protagonist Jackie is in “full freakout mode.” But Woods downplayed the prospect of a pulling-out protagonist.

“This happens all the time,” said Woods.

As late as November 3, Erdely emailed, Jackie had gone silent. But Woods says he remained calm.

“I had other articles I could have run,” he explained.

Once Jackie resumed communications, there were problems with the story. Woods emailed Erdely to urge some confirmation– beyond Jackie– about two other women allegedly raped in the Phi Psi house.

“I wish I had better sourcing for a lot of the Jackie stuff,” Woods replied. “A lot right now is resting on Jackie’s say-so, including the entire lede.”

Letting Jackie serve as the source not only for her now-disproven tale of fraternity house gang rape but for quotations from allegedly callous friends prompted Locke to blister that lede.

“It misled readers, didn’t it?” demanded Locke.

“It did,” admitted Woods.

Locke asked the witness to admit the story lacked corroboration.

“I thought we had a lot of corroboration,” Woods testified, “but here we are.”

“Here we are,” the lawyer repeated.

On questioning from the defense, Woods pointed to an array of official-sounding statements that seemed to bolster Jackie’s tale. There was a UVA administrator named Emily Renda who testified about it under oath to the U.S. Congress. There were the those real-looking text messages. And even the UVA president personally confirmed to Erdely that the fraternity was under investigation.

Yet Woods constantly conceded mistakes– particularly when reminded that he assured a inquiring reporter that Rolling Stone verified both the existence and the identity of the alleged rapists.

“Yeah, I stepped over the line,” admitted Woods. “And I deeply regret it.”

At one point, Locke spoke of another potential smoking gun. Three days after publicly disavowing the story online, Woods reached out to Jackie with a voicemail that noted, in part, “we’re standing by the story.”

“It’s like the stages of grief,” Woods explained. “I was in denial.”

Over the course of the interrogation, Woods admitted reporting, sourcing, editing and attribution errors– including giving up on attempts to reach the rape ringleader or the trio of supposedly rape-condoning friends.

“We did debate these things,” said Woods. “We just came to the wrong conclusions.”