Tag: Sabrina Erdely

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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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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 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.”

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Bad memory: Jackie testifies on Day 7 of Rolling Stone trial

If “yes, to my great regret” has become the stock answer for remorseful Rolling Stone reporter Sabrina Rubin Erdely, then her protagonist in the now-discredited gang rape tale—the one who sent a college into chaos two years ago—has found a mantra of her own: “I don’t remember.”

Before a hushed courtroom in downtown Charlottesville, a federal jury and a gallery of 24 spectators gathered Monday to hear over two hours of Jackie bobbing and weaving around questions in her videotaped deposition.

This wasn’t the chatty Jackie of yore, the one who enthralled the visiting Erdely over dinner at the College Inn restaurant. Or even the the deeply scarred Jackie who dove into radio silence a month before Rolling Stone’s once-blockbuster article.

This was the Jackie whose memory couldn’t even be refreshed by looking at text messages and emails from two years ago, such as a text in which she claims that she was misrepresented.

“It says that I did,” she allows.

In the original article, the reporter accused UVA President Teresa Sullivan of over-invoking “I don’t know” as an answer, but in the nearly three hours of audio-taped deposition, Jackie said some version of this answer at least 50 times—before we lost count.

Some of the things Jackie can’t recall: why she stopped responding to Erdely, whether she backed out of the article, whether she later agreed to be in it, whether she claimed to get a sexually-transmitted disease from her alleged attack, and how Erdely—as Jackie claimed in a note to a friend—took “artistic license” and “sensationalized” her story.

“I can’t remember anything specific,” says Jackie. “I just remember reading the article and thinking I wouldn’t have written it that way.”

The lawyer presses for more.

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Nicole Eramo leaves court with her legal team: Libby Locke, Tom Clare and Andy Phillips. Photo Eze Amos

“It’s very difficult to explain, to articulate,” says Jackie.

As the one of the defense lawyers warned in the opening statement a week ago, Jackie—though she reveals in the deposition that she’s now married to her childhood sweetheart—”she’s a completely different person—like a shell.”

On the tape, she sniffs like Donald Trump at a debate. Her lawyer, Palma Pustilnik, who has threatened legal action against a reporter contacting her client, issued a blanket statement: “My client continues to have no comment in this matter.”

Surely, she would remember meeting with UVA Police over the criminal report she filed after allegedly getting beaned with a beer bottle on the UVA Corner?

“I don’t remember,” she says. “I have PTSD.”

She declares that she didn’t want to file criminal charges.

The climax of the proceedings comes when she’s presented a set of screenshots of text messages she’d emailed Erdely. Ostensibly from two friends and fellow rape survivors, the women were adamant about not being interviewed, and the lawyer asked if Jackie clandestinely created the text messages.

The reply: “I can’t remember.”

“You can’t remember one way or another?” gasped the bewildered barrister, who then asked if she wished, under penalty of perjury, to deny making the messages.

“I just don’t remember any of this,” replied Jackie. “It’s foggy.”

The day ended with a blistering examination of Elisabeth Garber-Paul, the Rolling Stone fact-checker.

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Team Rolling Stone includes attorney Liz McNamara. Photo Eze Amos

C-VILLE Weekly’s coverage continues tomorrow.

Correction October 25: Headline “Jackie deposed in Day 7 of Rolling Stone trial” changed to reflect that Jackie testified in court through her previously videotaped deposition.

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Day 3: Testimony gets heated in Rolling Stone trial

 

If yesterday was an emotional sob fest, Wednesday’s proceedings in UVA administrator Nicole Eramo’s defamation lawsuit against Rolling Stone were much calmer, with the leading ladies in the suit—plaintiff Eramo and defendant/reporter Sabrina Rubin Erdely—both taking the stand and both sparring with opposing counsel.

It was not without emotion, however. At the lunchtime recess outside the courthouse, Eramo “was accosted by a woman who called her a ‘rape apologist,’” said Eramo’s attorney Libby Locke, an incident the lawyer says proves the ongoing damage to her client’s reputation from the November 2014 Rolling Stone article, damage for which Eramo is suing for nearly $8 million.

And in a bombshell request, Locke attempted to enter a video in which Erdely told students at her University of Pennsylvania alma mater that she’d made mistakes while a student reporter, which Locke described as plagiarizing material for an interview that never happened with folk singer Michelle Shocked and making dubious attributions.

Judge Glen Conrad will be mulling over how pertinent that is to the case and whether to admit the video. “I’m a little bit disappointed this is coming up so late, on the third day of trial,” he said.

The day began with Rolling Stone attorney Elizabeth McNamara’s cross examination of Eramo, questioning how she’d handled the report made by Jackie, the alleged gang rape victim in the Rolling Stone story.

Phi Kappa Psi, the fraternity where Jackie claimed seven men attacked her, was already on UVA’s radar before Erdely appeared on the scene after Jackie said she’d met two other women who had similar experiences there, according to Eramo’s testimony.

“Under Title IX, it’s required the university undertake an investigation,” said McNamara, who asked Eramo if the campus was warned about the alleged gang rape.

“It was not my purview to send warnings,” replied Eramo, who also noted that while Jackie’s assault had taken place September 28, 2012, she didn’t report it until many months later and it wasn’t until May 2014 that she said there were other victims.

Eramo reported to her boss, Dean Allen Groves, in a May 13, 2014, summary that Jackie said “several of them forced her to give them oral sex.” Eramo testified that she met with a national Phi Kappa Psi representative in September 2014 about a “potential rape at the chapter.”

The fraternity’s investigation resulted in no brothers stepping forward with additional information, Eramo said, admitting she was frustrated by the response. At the same time, as word of the upcoming Rolling Stone article spread, Phi Kappa Psi hired local public relations practitioner Pam Fitzgerald in October 2014 to handle fallout from the story, according to testimony.

“…It seems the fraternity is planning to throw me totally under the bus,” Eramo said in a November 14, 2014, text.

Eramo seemed in good spirits early in day, responding to McNamara’s questions with, “Yes ma’am,” and smiling from the witness box. But as the questioning continued, the jovial banter with McNamara dissipated.

And then McNamara played Eramo’s September 2014 WUVA interview, in which she’s questioned about the fact that while UVA expels students for cheating, it’s never expelled anyone for sexual assault.

Eramo’s testy response to student interviewer Catherine Valentine—”I think I’ve answered your question—became the basis for the Office of Civil Rights September 21, 2015, report that statements from Eramo, the chair of the Sexual Misconduct Board, “constituted the basis for a hostile environment” for the handling of sexual assault at UVA.

The testimony also indicated Eramo had been eager to talk to Erdely for the Rolling Stone article, and when Vice President of Student Affairs Pat Lampkin “suggested I not be the institutional voice on this,” said Eramo, she wrote in an e-mail to Lampkin and the student affairs hierarchy, “I’m afraid it may look like we are trying to hide something for me not to speak with her.”

McNamara guided Eramo through the article, pointing out all the times Erdely noted Eramo was beloved by the survivors.

The attorney also tallied the apologies Rolling Stone made for its major journalistic gaffe. Eramo was not swayed by the four apologies. “I don’t believe it was sincere,” she said, because Rolling Stone, while admitting error in its Jackie account, still stood by its reporting on Eramo.

In a final effort to minimize the harm Eramo suffered from the story, McNamara introduced a letter about a salary increase to $110,000 Eramo got in August 2015, and Eramo testified she’s now making $113,000. She was never disciplined or reprimanded and she received letters of praise from her bosses, including a handwritten note from UVA President Teresa Sullivan, reminded the attorney.

McNamara also pointed out that while Eramo held the title of deputy Title IX coordinator for students, she called Jackie a “serial fabulist.”

“Yes,” said Eramo.

Eramo read in its entirety an April 2015 letter she sent to Rolling Stone about how it added “insult to injury” in its portrayal of her as an “unsympathetic and manipulative false friend” more interested in keeping UVA’s rape statistics low. The article, wrote Eramo, “deeply damaged me both personally and professionally.”

Her name and a Photoshopped picture “remain forever linked” to the article that damaged her reputation, she said.

Erdely’s appearance on the stand around 5pm—nine hours into the proceedings—perked up weary jurors and spectators.

Eramo attorney Locke wasted no time in presenting articles longtime journalist Erdely had written about sexual assault, and accused the reporter of being critical of medical licensing boards for failing to protect patients from convicted gynecologists, of juries that don’t convict date rapists, of the Catholic Church for covering up sex crimes and of the military for covering up sexual abuse.

“I take issue with how you’re characterizing my articles,” said Erdely.

“You can take issue,” replied Locke. “It’ll be up to the jury to decide.”

Included in the plaintiff’s massive exhibit stack is Erdely’s 430-page reporting file of the notes she took while interviewing. The notes, she explained, were not every word from an interview. “You’re trying to get the important things for the article, not necessarily a record for litigation,” said Erdely.

Locke hammered on the premise that Erdely all along was focused on “institutional indifference” in her story pitch and in interview requests for her article about rape culture on college campuses.

Referring to an e-mail Erdely sent to Eramo asking for an interview, said Locke, “You don’t tell Eramo your article is about institutional indifference.”

“My article is not about institutional indifference,” said Erdely.

The trial, which began Monday, is expected to last 12 days, with Erdely back on the stand Thursday.

C-VILLE’s coverage of the trial continues tomorrow. 

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Day 1: Jurors selected in Eramo v. Rolling Stone defamation trial

Nearly two years after Rolling Stone put UVA in the national spotlight with an article called “A Rape on Campus,” 100 potential jurors crammed into U.S. District Court October 17 for the start of a 12-day trial to determine whether the magazine, reporter Sabrina Rubin Erdely and Wenner Media LLC defamed former UVA associate dean Nicole Eramo.

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Defendant Sabrina Rubin Erdely, second from left, and a phalanx of lawyers head into court. Photo Eze Amos

 

The story of first-year Jackie’s brutal gang rape in 2012 at Phi Kappa Psi roiled the university community with angry protests, vandalism and a suspension of fraternity social events—until Jackie’s story unraveled. Charlottesville police investigated and could find no evidence the attack took place, an investigation with which Jackie refused to cooperate. Rolling Stone asked the Columbia School of Journalism to investigate, and its scathing 13,000-word assessment called it “a journalistic failure that was avoidable.” Rolling Stone retracted the story.

In May 2015, Eramo filed suit seeking $7.85 million. Phi Kappa Psi and three of its members have also sued. The members’ suit was thrown out, but the fraternity’s case is scheduled to be heard next year.

Widespread publicity was a concern with seating a jury, hence the 100 citizens called in to make up a jury of 10, including three alternates. However, when the jurors were asked, nine had heard nothing at all about the article that became a national sensation.

Even last week, Rolling Stone filed hasty motions for sanctions against Eramo when it learned her lawyers had provided ABC’s “20/20″ with deposition videos that ABC aired October 14—three days before the trial was scheduled to begin.

The show featured Eramo, who described her fear of being fired after the story came out, and Erdely, who said she had believed Jackie.

“I have a feeling the judge is not happy they leaked it before trial,” says legal expert David Heilberg, who is not connected with the case. “That’s really bad form because it prejudices the jury pool.”

Judge Glen Conrad ruled that any depositions turned over to “20/20” could not be used in the trial. But, as Heilberg pointed out, Erdely is going to have to testify anyway because a civil trial does not offer Fifth Amendment protections against self-incrimination.

During the lengthy voir dire, potential jurors were questioned about their connections to UVA. Not surprisingly, 61 of them worked at or had attended the school, or had a family member who did. They were also asked if they’d ever been plaintiffs in a civil case—and whether they thought there’s too much litigation. They were asked if they had been victims of sexual assault, or if members of fraternities were more likely to commit sexual assault, the latter a question asked by Rolling Stone’s attorney Scott Sexton that Judge Conrad called argumentative and did not allow.

It was after 1pm when 34 jurors were dismissed, and Conrad plowed on through the lunch hour with more questioning.

The inquiry that had more than half the remaining jurors raising their hands: Who just doesn’t trust the media?

It was after 2pm when Conrad reminded the hungry jurors that jury duty was “one of the most important functions citizens can perform.” He also mentioned the trial was scheduled to last 12 days and that could include Saturdays.

He asked whether anyone had compelling reasons why they couldn’t serve, and more than a dozen lined up. “At $40 a day, I don’t feel very important,” said one male, who explained he was shorthanded at work.

“I can assure you that’s not a good enough reason,” said Conrad—although that juror was not on the final list of eight women and two men, who were named around 3:30pm.

At that point, the judge fed the jurors a snack and told them to decide how long they wanted to be in court each day. They agreed to a 10-hour day starting at 8am through 6pm.

At 4:30pm, the judge’s clerk read for an hour the 9,000-word article in question, “A Rape on Campus.”

The jury also heard Erdely in an interview she did on WNYC radio a few days after the article came out. What was shocking to her, she said on the show: “[Jackie] was brushed off by her friends and the administration.”

She also mentioned the administration’s “level of indifference,” which Eramo contends in her suit was Erdely’s purpose in publishing the article—to portray UVA as indifferent to rape and more interested in protecting its reputation than assisting victims of sexual assault.

First thing October 18, jurors heard a podcast of a November 27, 2014, Slate interview with Erdely, in which host Hanna Rosin calls the gang rape scenario “unbelievably extreme” and asked Erdely whether she contacted the alleged rapists, a question Erdely doesn’t answer.

As Erdely continued to talk in the podcast about how “doing nothing” about sexual assault at UVA “is perfectly fine” and survivors can go “unburden themselves to the dean, Eramo wiped tears from her eyes at the plaintiff’s table.

 

Backstory

September 28, 2012—Jackie goes on alleged date to Phi Kappa Psi, where she claims she’s gang raped.

May 2013—Jackie tells Nicole Eramo she’s been forced to perform oral sex on five men, but isn’t willing to say on whom or where it happened.

November 19, 2014—Rolling Stone publishes “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA.”

December 5, 2014—”Our worst nightmare,” Erdely writes in an e-mail. We have to issue a retraction.” Instead, Rolling Stone adds editor’s note saying the magazine’s trust in Jackie was misplaced.

March 23, 2015—Charlottesville Police announce finding no evidence of the gang rape Jackie described.

April 5, 2015—Columbia School of Journalism publishes “What Went Wrong?”, an indictment of the Rolling Stone story.

May 12, 2015—Eramo files suit against Rolling Stone et. al., seeking $7.5 million in damages and $350,000 in punitive damages.

Updated 11:25am October 18 with early morning trial coverage and timeline.

Correction October 21: The date of Jackie’s alleged assault was September 28, 2012.

C-VILLE’s coverage of the trial continues tomorrow. 

Categories
News

Privileged to privacy?: As Rolling Stone lawsuits continue, ‘Jackie’ remains unnamed

Jackie says Nicole Eramo’s attorneys shouldn’t get to depose her because of her “fragile” state as a sexual assault victim.

In the aftermath of a discredited Rolling Stone story about a gang rape that shook UVA students and faculty and spawned three lawsuits against the magazine and the author of the article, the woman at the center of the controversy, “Jackie,” remains unnamed in the media and in legal documents.

University of Virginia Associate Dean of Students Nicole Eramo, who says the piece cast her as the “chief villain” of the story and accused her of discouraging sexual assault victims from reporting rape, filed a $7.5 million defamation suit against Rolling Stone and reporter Sabrina Erdely in May, and has reportedly waited four months for Jackie, the alleged victim of the story, to turn over communications records.

Eramo’s lawyers requested access to several of Jackie’s communications in July, including all of those that make reference to herself as a sexual assault victim at UVA, as well as her correspondence with Rolling Stone and Erdely. After Jackie didn’t comply, Eramo filed a motion to compel her to turn over the communications.

In a hearing over the motion held in Alexandria December 4, the judge deferred a decision on the motion until it could be taken up in Charlottesville by the presiding judge on the case. Jackie’s lawyer, Palma Pustilnik, fought disclosing this information, saying that turning over these communications would be a breach of her client’s privacy. She is also filing a motion opposing the subpoena on the grounds that Jackie was not a named party in the lawsuit.

According to legal expert David Heilberg, though, the subpoena is valid whether Jackie is a party in the lawsuit. “Any third party that has relevant records to the case, you can get,” he says. Heilberg also disagrees with Pustilnik’s claim to privacy, saying neither Jackie nor Erdely has the right to privacy where this information is concerned.

“I don’t think there’s any claim to privacy in a civil suit of this kind,” Heilberg says. “Neither right to privacy nor journalistic privilege are strong enough to keep [Eramo’s lawyers] from getting the information they need.”

Communications between Jackie and her lawyer are private, says Heilberg. However, because the requested communications are primarily between Jackie and the magazine, this same privacy does not apply. “With a reporter,” he explains, “there is no such privilege.”

In a case with so many claiming harm from Jackie’s account, the question remains why she continues to go unnamed in legal procedures and the media. Edward Wasserman, dean of the Graduate School of Journalism at the University of California, Berkeley, and a media ethics expert, says it is a “tradition” of media organizations to leave out the names of sexual assault victims whether their account has been proven accurate.

“The standards that courts use in determining guilt or innocence are not the same as finding out whether or not someone was treated to degrading behavior,” Wasserman explains. “Behavior that, if her name was revealed, she may receive harm or shame from.”

Rolling Stone’s failure to adequately scrutinize Jackie’s allegations was “the most egregious misconduct” in the case, not Jackie’s partial or complete fabrication of the events, says Wasserman.

“In a perverse way, Rolling Stone was the enabler of this,” Wasserman says. “If they had done their job, we wouldn’t be having this conversation of whether or not to expose the woman.”

While from a legal standpoint Wasserman believes there is not much reason to conceal Jackie’s identity, especially considering the misinformation she gave to Rolling Stone, he raises the question of what purpose exposing her would serve.

“There is a context here; we don’t really know how much of what this woman told the reporter was true,” Wasserman says. “But there’s something about it that suggests that this is a very troubled person who’s probably been victimized at some point who stands to be harmed, perhaps needlessly, by exposure.”

C-VILLE Weekly has chosen not to release Jackie’s name at this time because we do not name victims of sexual assault.