COURT RESCINDS 2 DEPUTIES' LIBEL AWARD

A federal appellate court on Tuesday tossed out a libel finding and a
$600,000 jury award that two Pulaski County sheriff's deputies won in
1999 against a California documentary producer.

Though Patrick Matrisciana may have strayed across the boundaries of
ethics and fairness in his 1996 film, Obstruction of Justice: the
Mena Connection, he didn't cross the line into public-figure libel, a
three-judge panel of the 8th U.S. Circuit Court of Appeals decided.

The 26-page opinion sends the case back to U.S. District Court in
Little Rock, where a special judge, U.S. District Judge Warren K.
Urbom of Lincoln, Neb., presided over the libel trial in August 1999.
The circuit judges' ruling directs the district court to dismiss the
case.

A federal jury found that Kirk Lane, now a captain in the Pulaski
County sheriff's office, and Jay Campbell, who was a lieutenant and
is no longer employed by the sheriff's office, were entitled to
recover $598,750 from Matrisciana. The amount included $200,000 in
punitive damages awarded to each deputy and compensatory damages of
$109,750 to Campbell and $89,000 to Lane.

The jury found that the filmmaker defamed the men by including their
names at the end of the hour-long video on a list of "suspects
implicated" by eyewitnesses in the murder of two boys and an alleged
ensuing cover-up.

The deputies' names were both spoken by a narrator and displayed in a
written list as the film ended.

Kevin Ives, 17, and Don Henry, 16, were found dead on railroad tracks
in Alexander on Aug. 23, 1987. Though their deaths were initially
ruled accidental, caused by a drug-induced sleep, a grand jury
eventually overturned that finding and determined the boys were
homicide victims. Their slayings have never been solved.

"It would have been prudent of Matrisciana to insert the term
'alleged' before, or 'of dubious character' after the word
'eyewitnesses,' " said the opinion written by U.S. Circuit Judge C.
Arlen Beam of Lincoln, Neb. But, Beam said, the concept of "reckless
disregard for the truth," which the deputies had to prove Matrisciana
acted under, "is not measured by what a prudent person would have
investigated or published."

Beam was joined in the opinion by U.S. Circuit Judge Morris S. Arnold
of Little Rock and U.S. District Judge Donald D. Alsop of Minnesota.

Because the deputies were considered public figures, they had to
prove that the claims made in the film were false in order to win
their case against Matrisciana. The appellate panel said Campbell and
Lane failed to prove falsity under either of two legal standards:
preponderance of the evidence, which the jury used, or the higher
standard of clear and convincing evidence.

The ruling noted that "it is debatable" whether the correct standard
was used at trial.

Noting that the term "implicated" is vague, the appellate panel said
that the offending passage in the video is made even more ambiguous
by referring to a "cover-up" and to other people.

"It is unclear whether all the parties were implicated in both the
murder and cover-up or whether some were implicated in the murder and
others in the cover-up, and so on," Beam wrote.

Elaborating, he said that "the disparity between the written and
spoken statements further bedims the message. While the narration is
more concrete in that it refers to 'eyewitnesses' having 'implicated
several people,' the written message is much more amorphous and
tempers the narration, merely titling a list, 'suspects implicated in
Ives/Henry murders and cover-ups.' "

Matrisciana's film, made in consultation with Ives' mother, Linda
Ives of Benton, and a former Saline County prosecuting attorney, Jean
Duffey of Pasadena, Texas, contended that the boys were killed and
then their bodies were laid across the tracks so a train would run
over them and destroy evidence of the killing. The film suggests that
the boys were killed because they unwittingly witnessed a clandestine
aerial drug drop in which law enforcement officers were involved.

At the time Matrisciana made the film, he was better known for his
1994 film, The Clinton Chronicles, which focused on then-President
Bill Clinton. The deputies suggested that Matrisciana was thus
politically motivated to make the 1996 film, and named names to
increase his profits.

While finding for Matrisciana, the 8th Circuit panel acknowledged
that it found the video's use of the phrase "eyewitnesses" to be
"troublesome" because "that term lends a certain tone of authenticity
to the claim."

Still, even the most damning interpretation of that term wasn't
proven to be false at trial, the opinion said.

It points out that in fact, public law enforcement records were
replete with claims that purported eyewitnesses had implicated law
enforcement officers in the boys' deaths, including Campbell and
Lane, either by name or description, albeit some very general
descriptions.

So, even though Campbell and Lane challenged the credibility of those
"eyewitnesses," they didn't disprove that they were implicated by
eyewitnesses, Beam said.

The two deputies also didn't address at trial whether they actually
had been alleged to have been involved in a cover-up, the appellate
opinion noted.

But even if they had proved that the claims in the video about them
were false, "a public-figure plaintiff must do more than prove
falsity to prevail in a defamation claim," the judges said.

Specifically, the deputies also had to prove "by clear and convincing
evidence" that Matrisciana acted with actual malice, which they
pointed out isn't proven merely by presenting evidence of a
defendant's ill will, desire to injure, or political or profit motive.

A finding of malice requires "that the defendant made false remarks
with a high degree of awareness of probable falsity, or that
[Matrisciana] entertained serious doubts as to the truth of his
publication."

Those are both hard to prove, the opinion acknowledged.

It also noted that mere failure to investigate thoroughly doesn't prove malice.

A footnote in the opinion states that "although we do not intend to
insinuate guilt, we note that neither [Campbell nor Lane] had an
alibi for the date and time of the deaths and, therefore, had they
been asked for their side of the story, they very likely would not
have contributed much more than a denial and perhaps an explanation
of the animosity between themselves and [former Saline County
prosecutor Dan] Harmon, which was already apparent to the factual
editors" of the film, Ives and Duffey.

Matrisciana claimed at trial that he relied heavily on the women, who
testified that they relied on law enforcement records and personal
interviews.

The court noted that even if Matrisciana was politically motivated in
making the film, there was insufficient evidence presented at trial
to show that he had acted recklessly in producing it or in
relinquishing editorial control of the film to the two women. Ives,
after all, "had a vested personal interest in pursuing the truth",
and Duffey had been a deputy prosecutor and directed a Saline County
drug task force.

The opinion suggests that the officers spent too much time at trial
trying to discredit sources used by Duffey and Ives rather than
trying to dispute that they had been "implicated," which records show
- -- rightly or wrongly -- that they were.

"All in all, statements and rumors corroborating the Lane-Campbell
scenario or implicating them as suspects emanate, in varying degrees
of detail, from multiple sources," the opinion said. It cited some of
the sources mentioned at trial and even an investigator's testimony
that rumors about the deputies' involvement were "common knowledge."

The Lane-Campbell scenario the opinion referred to was a term used at
trial to refer to allegations that the deputies had some involvement
in the boys' death.

While reversing the verdict that favored the deputies, the appellate
panel did put in a few kind words for Campbell and Lane.

Beam wrote that "while we are not aficionados of conspiracy theories,
we suppose that if Matrisciana's assertions were true," it would be
difficult to verify or refute them.

"We stress that, because of First Amendment considerations, the
burdens we have placed on ... Campbell and Lane are great," the
ruling stated. Then, quoting from case law, Beam noted, "that they
cannot surmount these obstacles implies no condemnation of them."

"The various witnesses who attested to their character, along with
their many years of public service bode well for them," Beam wrote.
The judges also noted, "that Campbell and Lane have failed to
disprove the disputed statements at the requisite levels should not
undermine their accomplishments nor diminish their stature."

Lane, contacted Tuesday the sheriff's office, declined to comment on
the case until speaking to his attorney, Darren O'Quinn of Little
Rock. O'Quinn said he hadn't yet seen the opinion.

John Wesley Hall Jr., who represented Matrisciana, didn't return
several phone calls to his office seeking comment.