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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 9: UVA believed Jackie, too, say witnesses

Attorneys for plaintiff Nicole Eramo called her former boss, Dean of Students Allen Groves, to the stand October 26 to bolster her claims that she was unfairly portrayed as a callous administrator to victims of sexual assault in Rolling Stone’s article, “A Rape on Campus.”

“My first impression, and it remains my impression, it painted a picture of Nicole as someone who was cavalier, no pun intended,” as someone who suppressed statistics and who was not advocating for students, Groves said of the November 2014 article.

Student trust of administrators is “hugely important,” said Groves, and that was why Eramo was removed from her position as sexual assault intake counselor after the article was published. “Not because I did not believe she was anything but capable,” said Groves. “My fear was the perception of the student body was that she was not.”

Groves was aware that Jackie had reported her alleged September 2012 assault to Eramo months later on May 20, 2013.

And in April 2014, after she’d allegedly been beaned by a bottle thrown in retaliation for her advocacy work among assault survivors, Jackie came back to Eramo and reported two other women had similar experiences at Phi Kappa Psi, he testified.

On April 22, 2014, “Jackie said she was willing to talk to police,” said Groves. “I was ecstatic.” That euphoria quickly waned when Jackie said the detective she talked to was “aggressive” and she refused to name her assailant.

“I was angry that Jackie would not tell us this guy’s name,” said Groves. “I couldn’t understand how you could have that violent an act and not take action.”

Under cross-examination, when Groves was questioned about a September 17, 2014, text Eramo sent to Jackie and Alex Pinkleton that said the university was “flat-out fucked” because of Hannah Graham and the upcoming Rolling Stone article, Groves paused for an emotional moment.

“That was a very difficult fall for us, the most difficult I’ve encountered,” he said. “Sorry.”

He said if he’d known about that text and another in which Eramo referred to some of her survivor students as her “awesome bitches,” he would have advised her, “I’d prefer you don’t use that language in talking with students.”

Groves acknowledged that the university was already under fire for its handling of sexual assault cases, and the Office of Civil Rights had begun an investigation in April 2011.

When reporter Sabrina Rubin Erdely e-mailed Eramo for an interview, Groves wrote, “I’d prefer not to do it at all. In my opinion, Rolling Stone has not been objective in recent years. The description of hypotheticals, OCR, specific cases, etc., leads me to believe this is a hatchet job.”

That same fall, UVA’s alumni magazine also was working on a story about how UVA handles sexual assault, and Groves was sent a draft to edit, he said.

The article began with Emily Renda’s assault as a first-year after getting drunk. “My case is a fairly typical campus sexual assault story,” she’s quoted as saying. “How can this be a ‘typical’ experience at our nation’s institutions for higher education,” questioned the piece, which noted that no one has ever been expelled for rape at the university, a fact also included in the Rolling Stone article.

The alumni magazine story was killed.

Groves said he believed Jackie until the Rolling Stone article came out. So did associate dean Laurie Casteen. And so did Alex Pinkleton, according to their testimony.

Pinkleton, a sexual assault advocate active in One Less and a 2016 UVA grad, was a close friend to Jackie—at least before the article. Initially, she said, she was excited about the story because she wanted to draw attention to rape culture on campus and raise awareness. She said 90 percent of her comments to Erdely were about that, but she was quoted in the article as talking about how “hot girls” can get into fraternities.

“Obviously I was offended,” said Pinkleton.

“I”m very critical of UVA, but Dean Eramo is not part of that,” said Pinkleton, who said she respected Eramo and babysat for her. And she said she was concerned about how Erdely would portray Eramo.

Pinkleton said she encouraged Jackie to stay involved in the story “because it’s important to control your story.” And she said she’d never questioned Jackie’s story. “I just validated what she said. That’s what advocates do.”

During cross-examination, when describing her reaction to the article and how it portrayed Eramo, Pinkleton began crying. The judge ordered a short break.

When she came back, she said she was critical of how UVA handled sexual assault after Jackie’s tale of being raped by seven men at Phi Psi, and wrote in a 2014 e-mail, “They can investigate and notify students. That’s inexcusable.”

Pinkleton said she is represented by the same firm representing Eramo, Clare Locke, which helped her prepare for testimony for several hours. “The reason I did was because Rolling Stone subpoenaed my e-mails for two years,” she said.

Courtesy Rolling Stone Illustrator John Ritter, who did the now-notorious illustration that Eramo said made her “look like the devil,” testified that he had altered her eyes because they were downcast and not looking at the student figure he’d photoshopped into his illustration.

Jurors got to see other illustrations he’s done, including one of Hugh Jackman as Wolverine, whose eyes are altered, as well.

Rolling Stone deputy managing editor Sean Woods was the last witness of the day, and attorney Libby Locke grilled him on the decisions he made in editing Erdely’s story, including cutting out a section about Eramo taking Jackie to the police.

“You didn’t see that as relevant?” asked Locke.

“I disagree with that characterization,” said Woods.

Eramo’s team expects to finish with its witnesses tomorrow.

Outside the federal courthouse, Locke said it was another good day in court with Groves and Pinkleton testifying about how they read the article “as a negative portrayal” of Eramo.

Rolling Stone’s attorney David Paxton seemed equally pleased. “Through this part of the trial, we’ve heard no evidence there was any actual malice.”

Clarification 10:26 am October 27: Alex Pinkleton’s criticism of UVA’s handling of Jackie’s alleged rape was from a 2014 e-mail, about which she testified in court.

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Day 8: Rolling Stone fact checker, Jackie’s friends testify

For a second day, former Rolling Stone fact-checker Elisabeth Garber-Paul took the stand to explain why she believed Jackie, the student whose fake gang rape story sent the University of Virginia campus into uproar two years ago.

“She seemed to really care about getting this story right,”  testified Garber-Paul. “She was totally comfortable with having her peers know she was the Jackie in the story.”

Unlike other witnesses in this trial, now in its eighth day, Garber-Paul turns directly toward the jury to explain that she conducted a pair of two-hour conversations with Jackie.

“Four hours in one week is a lot for a college student,” Garber-Paul testified.

The fact-checker said documentation supplied by reporter Sabrina Rubin Erdely included a 431-page file including contemporary emails, alleged injury photos, and the transcript of congressional testimony about Jackie’s ordeal from the UVA administrator who had first introduced Jackie to the Rolling Stone reporter.

But the witness said it wasn’t just written records that seemed to validate the story; it was also Jackie’s way of recounting her alleged rape.

“It was like she had these snapshots in her head– 360-degree memories,” said Garber-Paul.

The images seemed so clear, vivid and painful that Jackie seemed at one point to be losing her breath, and Garber-Paul offered to pause the process.

“She said, ‘Let’s keep going.'”

The fact-checker said the college student spoke as someone recounting a terrifying ride.

“It was like she could close her eyes and see what was going on at every stop,” said Garber-Paul. “I believed everything in the article to be absolutely accurate.”

After lunch, the plaintiff fired back by blasting the decision not to reach out to Jackie’s former friend Kathryn Hendley, or “Cindy,” whom the article quoted as calling herself a “hookup queen” and supposedly telling Jackie she should have enjoyed getting raped.

“Why didn’t you have fun with it?” Cindy is quoted in the story. “A bunch of hot Phi Psi guys?”

“Those quotes were too perfect, weren’t they?” demanded plaintiff’s attorney Andy Phillips. “You didn’t contact her because you knew she’d deny them, didn’t you?”

The fact-checker disagreed. The lawyer then suggested that Garber-Paul should have noticed that Jackie was hiding witnesses who could corroborate her story.

“Isn’t that a giant, waving, red flag?” asked Phillips.

“I didn’t realize that she was in any way preventing us,” replied Garber-Paul.

However, the lawyer refused to retreat and reminded her that Jackie must have possessed contact information for her former friends. Finally, Garber-Paul agreed that Jackie may have been stonewalling.

“This is not specialized fact-checker information,” concluded Phillips. “This is common sense.”

The afternoon included testimony from two police officers revealing that Jackie refused to cooperate in their attempts to criminally investigate her alleged gang rape or a subsequent tossed-bottle incident.

But the bulk of the afternoon was consumed by playing video depositions of two of Jackie’s former friends, Kathryn Hendley and Ryan Duffin. Both testified that the Rolling Stone article departed in dramatic fashion from their memories of the aftermath of Jackie’s fateful date.

Each said that Jackie had trumpeted her plan to meet up with her mysterious suitor, “Haven Monahan,” on September 28, 2012, the night of her alleged gang rape. Jackie would claim that Monahan then orchestrated a five-man assault in which Jackie was forced to perform oral sex.

It was a bizarre climax to a month, the friends testified, of catfishing, creating fake messages in an ultimately unsuccessful effort to woo Duffin by making him jealous.

Hendley and Duffin disputed key details in the Rolling Stone account, saying they saw no blood or injuries on the friend who would later claim herself the victim of a three-hour, seven-man attack atop the shards of a smashed glass table.

“A complete fabrication” Duffin called the story, while Hendley– aka Cindy– called Rolling Stone’s account “a fictionalized version of my life.”

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After a Tuesday afternoon recess, reporter Sabrina Rubin Erdely returns to court. Photo Hawes Spencer

In the video, laughing off her portrayal as the callous “hookup queen,” Hendley reveals that when Erdely finally contacted her a few weeks after the article came out, she felt sorry for the reporter.

“I definitely understood,” she said, “what it was like to be lied to by Jackie.”

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Day 5: A recording of ‘Jackie’ makes waves

Former Rolling Stone reporter Sabrina Rubin Erdely put in a third day on the stand Friday, a day spent answering friendly questions from the defense in an effort to show how a veteran journalist could be duped by a college girl named Jackie– the centerpiece of a story that became a libel trial.

For over two hours, the jury listened to an interview in which Jackie talks of “daddy issues” that led her to become depressed. College was supposed to provide a fresh start, but barely a month into her freshman year, she was allegedly attacked.

She tells Erdely that she got a tattoo to brand herself a survivor. As Erdely describes it, it’s a women’s symbol with a fist, a rose, and the word “unbreakable.”

Rolling Stone defense lawyer Scott Sexton stops the audio to ask Erdely, “Did it ever occur to you that someone would get a tattoo on their body to commemorate a sexual assault that didn’t happen?”

Erdely’s voice shakes in reply: “Never.”

As the anniversary of her alleged September 28 attack neared, Jackie tells Erdely on the tape, she’d have nightmares in which she pictures herself walking up stairs but telling herself, “Don’t go.”

“I’d sleep during the day and stay up all night because I just couldn’t deal with the dark,” she said.

“I reverted to thoughts of suicide and self harm,” Jackie tells Erdely. “You can run as fast as you can, but you can never get over it. I still have nightmares.”

“She tells it in such a real and emotional way,” Erdely says on the witness stand. “She’s so conscientious with her details I could feel it.”

She wasn’t conscientious about every detail.

The jury hands a note to the judge. They want to know what to make of Jackie’s varying pronunciations of the fraternity where she was allegedly raped. The background noise is distracting, but she seems to call it Chi Phi, Chi Psi, Pi Phi– rarely, if ever, the one actually named in the story: Phi Psi.

Rolling Stone’s lawyer says he’d be happy to stipulate Phi Psi. But Eramo attorney Libby Locke suddenly stands and demands that the jurors trust their own ears.

“It goes to credibility,” says Locke.

Judge Glen Conrad agrees.

The infamous rape school quotation came into the record as Jackie can be heard telling the tale of what Dean Nicole Eramo, the plaintiff, was quoted in the article saying about the UVA’s alleged penchant to bury rape statistics.

In Jackie’s words: “She looked at me very solemnly and said, like, ‘Well, who would want to send their daughter to the rape school?'”

With her chin up and her gaze fixed firmly on Erdely, Eramo lets a hint of a confident smile course across her lips, as this pillar of her lawsuit– that she never actually said it– can be heard coming from the mouth of Jackie.

Later, Jackie can be heard telling Erdely about running into two of her alleged rapists in the beverage section of Walmart while she and a boyfriend were making a night-time search for spinach. Erdely took the tale as more evidence of truth.

“Her level of specificity just reinforced her believability,” Erdely testified. “She didn’t just run into them at Walmart; she ran into them in the juice aisle.”

Jackie’s not on trial here, as the judge and lawyers remind the jurors from time to time, but she seems to relish certain aspects of victimhood. She enthuses about her 12-person UVA course on women & violence, but she reserves her greatest enthusiasm for One Less, a support group for female sexual assault survivors.

“I’m not in a sorority,” she tells Erdely. But in One Less, she says, there are sorority-like get-togethers where women share emotional “highs and lows.”

“All of us are really close,” Jackie tells Erdely. “It’s a little sorority within itself.”

There almost seemed to be a little sorority within Erdely and Jackie. The audio reveals the two talking of post-traumatic stress disorder and swapping tales of psychologists, bio-feedback therapy and migraine headaches– all while as sporting events, music, and the sound of billiard balls clink in the background.

In court, Erdely testifies that Jackie, who speaks at a rapid clip, seemed “outgoing and forthright” as well as “bubbly and enthusiastic.”

How this sister act will play with the jurors who appear to be in their 40s, 50s, and low 60s is unclear; but the college student definitely made an impression on the reporter.

“It was like drinking from a firehose when you were with Jackie,” Erdely testified. “She just talked and talked.”

Jackie seems particularly talkative on the topic of “Becky,” another woman that Jackie claims shared her story of getting raped at the same fraternity.

“She spoke like Spock from Star Trek,” says Jackie, as Becky tells of going into a room with three men.

“They summoned another boy into the room,” continues Jackie, “and I remember she used the word ‘summoned.'”

“What, was she carrying a thesaurus?” jokes Erdely, impressed with the diction and the specificity of the tale.

Jackie notes that “Becky” acts formally, dresses in business casual, and proceeds to say she was an unwilling participant in “forcible sexual intercourse.” And then leaves.

“She looks at her watch and was like, ‘I’ve got to get to class now.'”

Jackie, while admittedly more emotional than Becky– whom the defense lawyer suggests may be fictitious– is never heard in the audio protesting her role as the controversial story’s centerpiece. And, Erdely testified, Jackie never asked the reporter to remove her.

“And after it came out,” said Erdely, “she was thanking me for the article.”

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Day 4: Erdely gives scarring testimony

“I found her to be very credible,” said the reporter on the podcast. “I put her story through the wringer.”

This audio about “Jackie,” the now-discredited protagonist of a once-blockbuster magazine article was played for jurors, as the plaintiff’s attorney tried to crush the credibility of reporter Sabrina Rubin Erdely on Day Four of the $7.5 million libel suit filed by former UVA dean Nicole Eramo.

“I spoke to virtually all of her friends to find out what she told them at various points,” continued the Slate podcast published on Thanksgiving Day in 2014, during arguably the  greatest days of Erdely’s journalism career.

It was just eight days after the release of “A Rape on Campus,” a now-retracted story Erdely penned for Rolling Stone. And the words from the podcast hung over the courtroom, as plaintiff’s attorney Libby Locke attempted to demolish them.

Using Erdely’s own interview notes, Locke got Erdely to concede that Jackie’s roommate Rachel Soltis recalled that Jackie described her violation as a five-man oral assault that included penetration with a broken beer bottle. The magazine, however, depicted a seven-man rape with an intact beer bottle.

“Yeah, the details changed over time as she came to terms with the rape, which is typical of trauma survivors,” Erdely explained.

Locke pointed to another friend who, Erdely’s notes indicate, said Jackie claimed she’d been violated with a coat hanger.

“The important thing to me,” Erdely shot back, “was that she was verifying that she had been raped with a foreign object.”

There was one moment when Locke may have thought she’d caught Erdely with another inconsistency, a discussion of the victim wearing a red dress in one account and then a blue dress in the roommate’s account.

“She was making a joke,” said Erdely. “She’s referring to the Monica Lewinsky scandal.”

Locke’s questions suggested that allegations of scars on Jackie’s back and arms provided another pile of bogus information.

“I asked to see the scars on her back,” Erdely said in her own notes, as shown on two large video monitors. “Her boyfriend hadn’t seen them, but it had been two years, so I accepted the explanation that they had faded. In the dim light I see nothing.”

The notes show that Jackie then offers, “I can wear something tomorrow to show them.”

The jurors heard audio of a dinner interview in which Jackie says, “All of my friends are like, ‘What are those?’ And I’m like, ‘Those are from September 28.”

Erdely would later tell Washington Post journalist Paul Farhi: “Jackie showed me the scars that she said she’d suffered the night of her attack.”

Erdely refused to answer Farhi’s questions about whether she knew the attacker’s name and whether she’d interviewed him. He said it would be journalistic “malpractice” if she hadn’t.

“You’re getting sidetracked,” she chastised Farhi in a November 30 e-mail exchange in which she said the main point of her article was the culture and a UVA administration “which chose not to act on her allegations in any way.”

Around the same time, however, the notes show Erdely was losing confidence in Jackie and e-mailed Jackie to point out that none of her friends had seen the scars.

Also at that dinner interview according to a transcript put on the screen, Jackie tells the table that the gang rape gave her syphilis, something that catches her boyfriend off guard.

“I don’t have it any more,” Jackie reassures him.

It wasn’t the last time Jackie carried a claim about syphilis. She alleged that one of her three best friends—the ones who comforted her after the alleged gang rape—contracted the disease after sleeping with 40 guys.

“You never challenged her,” says Locke.

“Yes,” replies a quietly weeping Erdely, “to my great regret.”

That was the friend Erdely put in the story under the pseudonym Cindy, a “self-described hookup queen” who frets that Jackie should remain silent to avoid being “the girl who cried rape,” adding that they’d “never be allowed into any frat party again.”

After Locke pressed Erdely to admit that she waited until after the article’s publication to grill Jackie on the inconsistencies, the judge interjected a question of his own: Who asked Erdely to re-report.

“Jann Wenner,” was her answer.

The founder-owner of the rock/culture magazine has not been attending trial, but his magazine’s future may hang in the balance if his recent decision to sell a 49 percent stake is any indication.

Erdely was to be one of the magazine’s stars. She revealed Thursday that after writing stories for Rolling Stone for several years, this one was to be her first under a new contract that would have paid her $300,000 for seven stories over the course of two years.

During a discussion of the days in late August when Jackie allegedly stopped replying to the reporter’s texts and e-mails, Locke begins reading from one e-mail shown on a screen. When she gets to Jackie’s last name, plainly visible to the gallery, the lawyer suddenly halts and shouts to a nearby technician: “If we could take that down, please, off the screen.”

Later, the technician dims the gallery screens again when a photograph appears of Jackie’s purported facial injuries from an incident—disputed by the Charlottesville Police Department—in which Jackie was allegedly injured by a thrown bottle.

“Keeping her identity confidential is important,” said Judge Glen Conrad, to encourage “other victims” to come forward. How Jackie, now with multiple false accounts, convinced a judge as well as both sides of this litigation that she’s a “victim” has yet to be explained.

Devastatingly, Locke produced interview audio in which Erdely mentions the photo to Jackie and says the supposed facial injuries resemble “something smeared,” a substance, the reporter said, “looked like face paint.”

In response, Erdely downplayed the statement as merely a manifestion of alleged abrasions that were “so bright.”

In early November, as the article was getting vetted, an e-mail from proofreader Elizabeth Garber-Paul asked if Erdely had received a last name or comment from the alleged rape ringleader.

She e-mailed back: “Unfortunately, the answer is no and no.”

Just a week or two earlier, late October, Jackie was threatening to pull out of the story, according to texts from Jackie’s friend Alex Pinkleton.

“I need to be clear about this,” Erdely texted back, “there’s no pulling the plug at this point—the article is moving forward.”

It was October 24 when Erdely e-mailed her editor, Sean Woods: “Fuck. Jackie is in full freakout mode right now.”

The next day, Erdely turned on the charm in an e-mail to Jackie: “You’re about to make a difference. I know you can do this Jackie. You’re stronger than you give yourself credit for. Give yourself a hug. Everything is going to work out fine.”

A separate Erdely email to Rolling Stone’s photo editor noted that “Jackie is in not-great mental shape right now.”

Didn’t Erdely realize that Jackie had PTSD? Locke demanded.

“I’m not a doctor,” replied Erdely. “I have no qualms about building my lede around someone who is emotionally fragile.”

But wasn’t this a mistake in this instance, Locke demanded.

“It wasn’t a mistake to rely on someone [so] emotionally fragile,” Erdely said softly on the witness stand, as her voice broke and tears flowed in an otherwise silent courtroom. “It was a mistake to rely on someone who was intent to deceive me.”

Locke pointed out that Eramo had brought police to speak with Jackie, but later let that get removed from an early draft of the story. “A reader would have no idea that Dean Eramo took Jackie to meet with the police.”

“This article was not about how the university handles bottle incidents,” said Erdely. “It was about how the university handles sexual assaults.”

At issue was the “rape school” quotation attributed to Eramo, something that Erdely says, “Jackie told me twice, and I believed her. “

And Erdely conceded she had not strenuously attempted to verify—though she points out that she learned that her planned meeting with Eramo was cancelled as she was boarding a plane from Philadelphia to Charlottesville.

“UVA made it very clear,” testified Erdely, “that I was going to have no access to Nicole Eramo.”

Erdely also unashamedly continued to criticize the university’s policy for laying out three judicial choices for rape victims, an array that the reporter contends harms justice.

“Victim choice left Jackie, as it leaves many other victims,” said Erdely, “paralyzed.”

Locke read the second editor’s note which apologized to everyone “damaged” by the story and repeatedly asked Erdely whether Eramo had been damaged. Even after her lawyer, Scott Sexton, objected, the judge allowed the question.

“I’m sure that her feelings were hurt,” was the most Erdely would offer, well aware, as her lawyer pointed out, that “damages” has a legal meaning in a libel trial.

Erdely acknowledged the hate mail Eramo received but pointed out Eramo subsequently received a pay raise and ascribed Eramo’s removal from working with students to being found liable of violations of Title IX, the law meant to protect women on campuses. Pressed whether she stands by the story, Erdely didn’t hesitate.

“I stand by everything in the article that did not come from Jackie.”

Updated October 24: Eramo filed a motion October 17– the first day of trial– withdrawing her demand for $350,000 in punitive damages, bringing the monetary awards she wants down to $7.5 million.

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Day 2: Eramo takes stand in suit against Rolling Stone

It was a courtroom with tears shed on both sides of the aisle.

The defamation trial pitting former University of Virginia dean Nicole Eramo against her portrayal by Rolling Stone magazine’s Sabrina Rubin Erdely got into full swing Tuesday with both women crying at the federal courthouse. There was even talk of past tears, such as when Eramo, the only person whose image ran with the story, was depicted with a demonic smile and hollow eyes while protesters mass outside her office.

“I started to cry when I saw the picture,” Eramo testified. “They made me look like the devil.”

According to the plaintiff, her negative portrayal didn’t end with that digitally-manipulated image. Rolling Stone suggested that Eramo steered victims away from police reports, downplayed sexual violence statistics and called UVA “the rape school,” allegations she categorically denied from the witness stand.

“They made me into something they wanted me to be for their own narrative,” she said.

Eramo conceded that she canceled a planned interview at the behest of UVA’s communications office, but said she would have answered a fact-checker’s questions—if only she’d been called.

“I would have checked with communications, and if allowed to answer I would have done so,” Eramo said.

Some of Eramo’s most emotional testimony concerned  November 19, 2014, the day that “A Rape on Campus” screamed across the Internet, telling a tale—eventually debunked—of a gang rape in a fraternity house.

“I read it on my phone about five o’clock in the morning,” Eramo testified. “I was stunned.”

She described the opening sequence of a seven-against-one gang rape as horrific, but horror gave way to puzzlement as Jackie, she said, had previously portrayed to Eramo a different rape scenario.

“I was shocked,” Eramo said. “I was very confused why she hadn’t shared such a horrific incident and let me help her.”

Eramo began to realize her own depiction didn’t end as a devil in imagery, but also in deed. “I was accused of manipulating a student after gaining her trust, which is so far from what I had tried to do,” she said.

By the time she got to the office in Peabody Hall, she realized the story was already having an impact, and she wondered if her boss, Allen Groves, had read it.

“When I walked in, the office was deadly quiet, which was strange,” Eramo said. “Allen asked me if I was okay.”

She says she was asked to come to a 3pm meeting and bring all her case files—so other administrators could follow up on them.

“I felt alone and scared,” she testified. “I thought I was going to get fired.”

Eramo wasn’t the only one harmed by the story. Defense attorney Scott Sexton noted in his opening statement that reporter Erdely regrets the “life-changing mistake” of putting her trust in Jackie and hasn’t published a story since this one.

“Yes, we regret using Jackie as the lede more than you can ever know,” said Sexton. “It was a disservice to all women who truly were sexually assaulted.”

“Today, we heard opening statements and from Dean Eramo herself,” said Rolling Stone in a statement. “Throughout Eramo’s testimony, it was abundantly clear that she believed in the credibility of Jackie, whom she counseled for many months.”

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Eramo’s status: Public figurehood will determine how lawsuit plays out

Courtesy Rolling Stone

A phalanx of lawyers assembled to argue motions in former UVA associate dean Nicole Eramo’s lawsuit against Rolling Stone, along with plaintiff Eramo herself, August 12 in U.S. District Court in Charlottesville.

Eramo’s $7.85 million defamation lawsuit against the magazine, writer Sabrina Rubin Erdley and Wenner Media is scheduled for a jury trial in October, and Rolling Stone attempted to get the suit thrown out on the grounds that Eramo is a public official and must meet a higher standard and prove the November 2014 article “A Rape on Campus” was published with actual malice, which means a reckless disregard for the truth.

The now-discredited article told the story of Jackie, who claimed she had been gang raped at Phi Kappa Psi fraternity in 2012, a tale that almost immediately fell apart and that Rolling Stone retracted in April 2015. The piece also has generated lawsuits by the fraternity and three of its members, the latter of which has been thrown out.

Eramo’s team had three lawyers at the plaintiff’s table, led by Tom Clare, who is also representing ousted Penn State president Graham Spanier, who is suing the school for breach of contract for releasing a report that found he helped cover up Jerry Sandusky’s child molestations.

Rolling Stone has five attorneys listed in its court filings, and lead attorney Elizabeth McNamara is currently representing Tony Schwartz, Donald Trump’s Art of the Deal ghostwriter who has denounced the Republican presidential candidate.

Clare kicked off the proceeding by pointing out that the Rolling Stone article is “quite literally” on exhibit as a “cautionary tale” of media mistakes in the Newseum in D.C.

The article mentioned Eramo 33 times, said Clare, including in a picture that was photoshopped to show her giving a thumbs up gesture to a victim of sexual assault while “Stop victim blaming” placard-carrying protesters marched outside her window.

“Is this too mean?” Rolling Stone’s fact checker had queried in red ink. The magazine “ignored dozens of warnings and red flags” about Jackie’s credibility, said Clare, and “irreparably damaged” Eramo’s reputation by its portrayal of her as an indifferent administrator responsible for handling victims of sexual assault at the University of Virginia.

“It depends on the spin you put on this,” said Judge Glen Conrad, when Clare asserted that the article showed Eramo as unfit to perform her duties and demonstrating a “want of integrity.”

Clare’s partner, Libby Locke, argued that Eramo was a private, not a public, figure who was not responsible for setting policy at the university. As an intake official, Eramo was the one who would get the call from assault victims, and she was legally precluded from discussing those interactions. And although she was head of the Sexual Misconduct Board at UVA, Eramo hadn’t done anything in that role in a year, said Locke.

“She was interviewed 28 times by the campus newspaper and TV stations,” said Judge Conrad. “She was the face of the university on sexual assault.”

Conrad said he anticipates the case will go to trial, with Eramo as a limited purpose public figure, a designation that requires her to prove actual malice on the part of Rolling Stone.

“This may be the most clear case of actual malice the Fourth Circuit has seen,” assured Locke.

When Rolling Stone republished the article online December 5, 2014, with the editor’s note that the magazine had lost confidence in Jackie’s credibility, that constitutes actual malice, said Locke, because it stood behind the reporting regarding Eramo, including the statement Eramo denies she said about why there are no statistics on sexual assault: “Nobody wants to send their daughter to the rape school.”

“Rolling Stone knows how to issue a retraction, and it did so on April 5,” said Locke.

For Rolling Stone attorney McNamara, there were multiple individual grounds to dismiss the case, most notably because Eramo is a public figure and she failed to establish actual malice.

“Rolling Stone has apologized to her,” McNamara said. “Rolling Stone took prompt action within hours when it became apparent there were questions.” Up until December 5, the defendants believed Jackie was credible, she said.

And Eramo’s claim that it was actual malice for Rolling Stone to publish an apology sends a “chill to publications that they correct errors at their peril,” said McNamara. “Publishing a retraction or apology is evidence of not actual malice.”

She asked that the lawsuit be dismissed, a request Conrad seems unlikely to agree to, but he said he will rule on whether Eramo is a public figure.

A two-week trial is scheduled to begin October 11.

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Flurry of filings in Rolling Stone lawsuits

Phi Kappa Psi. File photo

Last week saw one lawsuit against Rolling Stone dismissed, while Sabrina Rubin Erdely filed an 86-page statement about how she reported the UVA-rocking article “A Rape on Campus,” and plaintiff Nicole Eramo asked for several issues to be determined in advance of her October defamation trial against the magazine and Erdely.

On June 29 a judge dismissed a lawsuit brought by Phi Kappa Psi brothers George Elias IV, Stephen Hadford and Ross Fowler, who were not named in the article.

A dozen documents were filed July 1, including Eramo’s request for a partial summary judgment on issues such as whether she was a public figure, whether the depiction that she discouraged Jackie from reporting her alleged assault is defamatory and whether Rolling Stone acted with malice when it republished the article online December 5, 2014, after Erdely sent an e-mail at 1:54am with her realization Jackie was not credible and the story should be retracted.

Until those early morning hours, wrote Erdely, she had complete faith in Jackie’s credibility and the accuracy of her story. “I never would have written or published an article in which I did not have complete confidence,” she said.

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Frat brothers’ defamation case thrown out

Phi Kappa Psi. File photo

A New York federal judge dismissed a defamation lawsuit on June 29 filed by three members of Phi Kappa Psi against Rolling Stone and writer Sabrina Rubin Erdely for the now-discredited 2014 story, “A Rape on Campus.”

“Their defamation claims are directed toward a report about events that simply did not happen,” wrote U.S. District Judge P. Kevin Castel in his decision.

George Elias IV, Stephen Hadford and Ross Fowler were UVA students in 2012, when the alleged rape occurred, although a Charlottesville Police investigation later determined no evidence the gang rape described in Erdely’s article ever took place. None of the plaintiffs were identified by name, but they claim that the article’s references to the attackers inadvertently involved them—even though they also claim that the same attackers were invented by “Jackie.”

The three fraternity members said the story could have prompted friends, family and peers to erroneously deduce that they were participants in the gang rape.

Elias said it could be inferred from the description of the room where the purported rape occurred that it was the room he lived in for two years and the only one accessible at the top of the stairs without an electronic keypad lock.

“Now, climbing the frat-house stairs with Drew, Jackie felt excited,” said the article. “Drew ushered Jackie into a bedroom, shutting the door behind them.”

Castel disagreed, and said that while Elias had one of several bedrooms on the second floor, the article did not identify him.

Fowler’s qualms arose with the story’s insinuations that the alleged gang rape was a requirement for initiation with its statements such as, “Don’t you want to be a brother?” and “We all had to do it, so you do, too.” As the fraternity’s rush chair, he alleged the story directly implies that he was the maestro behind the heinous acts described.

Fowler further claims that as an avid swimmer who frequented UVA’s Aquatic Center, readers would automatically associate him as one of the rape’s perpetrators.

Judge Castel didn’t buy those claims either, and said Fowler relied on an interpretation at odds with the surrounding context created by the article and said a “strained or artificial construction” could not be made defamatory.

“Essentially, real people don’t have a right to sue when someone makes up fictitious people that in some way resembles them,” says legal expert David Heilberg.

Hadford, a 2013 UVA graduate, continued to live on Grounds for 15 months after graduation and frequently rode his bike between his residence and his job at UVA Medical Center’s emergency department. According to Jackie, former associate dean Nicole Eramo claimed all of Jackie’s perpetrators had graduated, yet, Jackie had seen one riding his bicycle that same day she talked to Eramo.

“Friends, family, and acquaintances of Hadford would have made the connection that Hadford must have been the person who Jackie saw riding his bike on campus,” he claimed in his suit. The judge denied this allegation because the article failed to provide additional details of the bike rider.

This is one of three cases that Rolling Stone and Erdely faces. Phi Kappa Psi also filed a defamation suit, and another hearing in Eramo’s lawsuit is scheduled August 12 in Roanoke.