American Sniper on trial

AmericanSniper Former WWF wrestler and Minnesota Governor Jesse Ventura brought a lawsuit for defamation against Chris Kyle, the Navy SEAL sharpshooter and coauthor of American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History. The book was published on January 3, 2012, under the William Morrow imprint of HarperCollins.

With a little help from Morrow’s publicity department, Kyle was featured on segments of the Today Show and the O’Reilly Factor. A veteran of four tours in Iraq, Kyle’s overlay of modesty and bravado on top of his obvious heroism helped propel the book onto the best-seller list upon publication. The man was a certified American military hero with great personal magnetism.

Two or three pages of the book are devoted to Kyle’s close encounter with Ventura in a Coronado, California, bar in 2006. Ventura appears in the book under the pseudonym Scruff Face, but was identified as the object of Kyle’s story in interviews upon the book’s publication.

Ventura was attending a reunion of his Navy underwater demolition colleagues; Kyle was attending the funeral of Michael Monsoor, the future Medal of Honor recipient who had been killed in Iraq. At a Coranado bar following Monsoor’s funeral (a “SEAL wake”), Ventura and Kyle intersected.

According to Kyle, Ventura made politically disparaging comments regarding President Bush and the war, going so far as to say that the SEALs deserved to lose a few, at which point Kyle punched him. Ventura denies it all. See, for example, Marino Eccher’s colorful Pioneer Press account of Ventura’s testimony at trial.

Last year Chris Kyle was murdered at a gun range in Texas by a Marine reservist whom he was trying to help. He isn’t around to defend himself at trial, but Ventura has nevertheless pursued his case against him. The case continues against Kyle’s estate through its personal representative, Kyle’s widow, the beautiful Taya Kyle.

Ventura asserts that Kyle’s account of their encounter in the book defamed him. The case went to trial last week in federal district court in St. Paul, before Judge Richard Kyle (no relation to Chris Kyle). I attended trial on Thursday this week, as the defense wrapped up its case with three witnesses: Jim DeFelice, the coauthor of the book, Sharyn Rosenblum, the HarperCollins/William Morrow publicist who promoted the book, and Peter Hubbard, the book’s editor at HarperCollins.

Here let me insert a personal note. The attorneys representing the Kyle estate are with the Minneapolis firm of Faegre Baker Daniels, where John Hinderaker is a partner and where I worked for 16 years, from 1981 to 1997. One of the Kyle estate defense attorneys is John Borger, a Faegre partner with whom I worked from the first day I walked in the door. John is the dean of Minnesota’s First Amendment/media lawyers and a nice guy in addition to being a superb lawyer. Chuck Webber was an up and coming star when I left the firm; now he’s just a star. (I don’t know Leita Walker, the young Faegre lawyer also working on the case.)

I haven’t followed Ventura’s career as a professional wrestler or as an actor. I was never a fan of Ventura’s political act, however, either as a candidate or during his time in office as governor. I thought he was a buffoon and an embarrassment.

I couldn’t be objective about this case if I wanted to. Readers would be warranted in applying a 100 percent discount to everything I have to say about the case in this post, except this: I’ve attended parts of many interesting trials over the 35 years I have practiced law; this trial is the most interesting I have ever seen. I should have tuned in earlier, but this is a case of national interest and I want to offer a few notes on the case as well as a brief account of what I saw on Thursday as the defense wrapped up its case.

Ventura is a public figure and his claim is subject to the high bar established for defamation claims by public figures. He has to prove that Kyle essentially fabricated his account of the bar fight. It’s not clear what happened in the bar that night. Details conflict among the witnesses. Ventura asserts that whatever happened, it wasn’t much. The defense has called several witnesses to the effect that Ventura was offensive and that something happened that night, including something that put Ventura on the floor (or pavement). Marino Eccher summarizes one day of testimony to this effect in the Pioneer Press article “Jesse Ventura badmouthed SEALs, got decked, witnesses claim.”

Ventura apparently attributes some substantial part of the book’s success to the brief account of the bar fight. He seeks some of the book’s royalties as recompense for the damage it did to his reputation. He alleges that the book’s account of their encounter defames him, but I’m not sure which aspect(s) of it he refers to.

Ventura’s alleged comment that the SEALs “deserved to lose a few” stands out in my eyes as one that would support a defamation claim. I think that other comments allegedly made by Ventura that night comport with his own record of public comments. The outcome of the case may depend in part on what “interrogatories” or questions of fact Judge Kyle submits to the jury on the verdict form. At this point we don’t know what they will be.

John Borger led DeFelice briefly through his professional career as the author of some two dozen fiction and nonfiction books, leading up to his work with Kyle on American Sniper. This is a nonfiction book; he didn’t make anything up while writing it.

DeFelice had recordings of some of his interviews with Kyle; parts relating to the bar fight were played. Speaking of Ventura, Kyle says: “I hate him with a passion.”

I wondered, why did Kyle hate Ventura? It must have been something Ventura actually said.

John also quizzed DeFelice about his interview of Kevin Lacz (pronounced Lace) about the fight, and that recording was played as well. According to Lacz, Ventura was sporting a “ratty ass ponytail” at the bar (he’s still sporting it). “The guy’s a punk,” Lacz said.

Lacz described Ventura as “running his mouth” and “talking shit.” He said that Kyle responded by “choking out” Ventura. That’s why Chris is “a legend,” he said.

DeFelice characterized the Scruff Face section of the book as minor and unflattering to Kyle. It was included “to show who Chris was.” He testified that Ventura’s identity was ultimately concealed by use of the pseudonymn to protect Ventura from embarrassment. He testified that in the book Kyle did not want to embarrass “anyone who served.” DeFelice thought the bar fight idiotic and unimportant to the success of the book. “With all due respect” to Ventura, DeFelice commented, the book was not about Ventura. (For a brief summary of the cross examination, see Marino Eccher’s Pioneer Press account.)

John next called Sharyn Rosenblum, the HarperCollins/William Morrow publicist. I found her testimony to be riveting. She had read the book in manuscript and, although she lacks a military background, found it utterly compelling in its portrait of the stress of Kyle’s service on his family. She asked for the book to be assigned to her. She brought her long experience as a publicist to bear in seeking to promote the book.

“The book hit a nerve,” Rosenblum testified. In its second week after publication, the book became a number 1 nonfiction bestseller. John then had Rosenblum review some of the notice she managed to secure for the book even prior to its official publication date in early January.

Rosenblum scored a prepublication Today Show segment on Kyle and the book with Lester Holt. At this point John played the segment on the big screen before the jury in the courtroom. This brought Kyle right into the courtroom (and reduced Mrs. Kyle to tears).

John then asked a series of questions leading up to Kyle’s appearance (also prepublication) on The O’Reilly Factor. Through his questions John built up the importance of O’Reilly’s “endorsement” of the book to his viewers.

At this point John played the O’Reilly segment played for the jury (video below). Earlier that day Kyle had been interviewed on Opie & Anthony and asked about the Ventura fight; Ms. Rosenblum did not even connect the question to the book. In his interview, O’Reilly led with the fight.

Here let me digress for one paragraph. Watching the video in court, I was shocked to observe that O’Reilly seemed intent on portraying Kyle as Krazee-Eyez Killa (to borrow the name of a Larry David character). O’Reilly asserts: “You liked killing these guys. Did you ever figure that out?” You can almost feel Kyle’s discomfort with O’Reilly’s tack. Completely apart from the issues in the lawsuit, the interview left a sour taste in my mouth. Kyle deserved better than O’Reilly’s treatment of him.

Ventura’s defamation claim is unusual. I can’t find much in the way of evidence he has introduced supporting the quality of his reputation or how the book has damaged it. Perhaps he thinks his status as a former governor of Minnesota speaks for itself, and maybe it does to some extent. But the man turned himself into a full-time crank hawking conspiracy theories on TruTV, and he was a crank even before that.

I would love to have been in court for Ventura’s testimony. Consider this slice of Chuck Webber’s cross examination of Ventura as recounted by Eccher in the Pioneer Press:

Webber raised many of Ventura’s own colorful statements in an effort to illustrate that the former professional wrestler and celebrity needed no help from Kyle in sullying his own name.

Those ranged from a news conference outside a courthouse in which Ventura declared he was seeking Mexican citizenship to escape the “Fascist States of America” to a book passage that described “an Army run by Christianist extremists” to another passage saying women had to expect some level of harassment on the street.

Ventura said controversy and offensiveness were in the eye of the beholder. It wasn’t up to him, he said, to say how other people reacted to him.

“You’re not aware of what your reputation is?” Webber asked, pressing Ventura to admit that he had a penchant for controversy.

“Is anyone aware of what their reputation is?” Ventura responded.

And this bears on the merits of Ventura’s claim as well:

Webber also delved into whether the book had hurt Ventura’s earnings.

Tax returns showed Ventura made more than $13 million in the decade before “American Sniper’s” release. Much of that came from his contract for an MSNBC talk show in 2003-05, but Ventura took in $676,000 in 2011, the year before the book came out.

After Kyle’s autobiography was released, Ventura’s earnings dipped to $190,000 in 2012. Ventura said job offers, usually plentiful, “came to a screeching halt.” The third season of his TruTV series “Conspiracy Theory” was put on hold because of the story, he said, and the series eventually was canceled.

Webber asked if anyone told Ventura they wouldn’t hire him because of Kyle’s story.

“They never tell you why,” Ventura said.

Could he quantify how much money the story had cost him?

Ventura acknowledged he could not.

There seems to be a hole (or two) at the heart of Ventura’s case. (Reminder: You would be warranted in applying a 100 percent discount to my comments.) I can’t and won’t predict how the case will come out. As I say above, I think it depends to some extent on how Judge Kyle submits it to the jury.

Ventura may come away with some measure of vindication. Nevertheless, as he pursues his case against the estate of Chris Kyle, I can’t help but think this is the most misguided defamation claim since Alger Hiss sued Whittaker Chamber in 1948 for saying on Meet the Press that Hiss had been a Communist (and might still be).

Closing arguments are on Tuesday, followed by jury instructions and submission of the case to the jury. I think the jury will return with a verdict by the end of the week. I will follow up with a report when the verdict is returned.