Michael Gaynor
Attorney Larry Friedman uses Fox & Friends to rail against federal trial judge Richard Kyle in Jesse Ventura defamation case
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By Michael Gaynor
August 5, 2014

I doubt that Judge Andrew Napolitano, Peter Johnson or Megyn Kelly of Fox would have given Friedman a pass for his unfair shot at Judge Kyle or been so unprepared to keep things "fair and balanced' instead of just providing airtime for Friedman to vent.

On Sunday, August 3, 2014, Fox News, which bills itself as "fair and balanced," gave Larry Friedman, attorney for Taya Kyle, widow and executor of the Estate of Chris Kyle, the late Navy Seal and author of American Sniper an unchallenged opportunity to rail against the United States Senior District Court Judge Richard H. Kyle, trial judge in Jesse Ventura's successful defamation case originally against Chris Kyle and then his Estate.

Earlier a Fox report (www.myfoxtwincities.com/story/26140419/ventura-trial-is-this-the-final-day-for-jurors) on the case had lamented that the trial lawyers in the case had not been more forthcoming with the media before the verdict was announced, but it had not even hinted that Judge Kyle might have acted improperly in sending the jury back for further deliberation after five days of deliberation, much less characterized him as an "activist" judge:

"Judge gives deadlocked jury 'one more shot' at Ventura verdict

"On Monday, the jury deliberating the Jesse Ventura defamation lawsuit informed Judge Richard Kyle that they were deadlocked and didn't expect that would change. He told them, in a firm but friendly-grandfatherly way to go back in and 'give it one more shot.' We all figured that one more shot would just be a few more hours and then they would send another note to the judge and call it good. Hung jury. Done.

"But then we started seeing attorneys for both sides start meeting with the judge in his chambers. It happened a couple times Monday afternoon and next thing we knew we were told the jury was coming back Tuesday morning. And today, four times by noon, the attorneys have paraded back and forth in front of us for more meetings in chambers. They won't say what's going on, but they could either be answering questions from the jury or negotiating something else that's pertinent to ending this deliberation."

Ventura had sued Kyle, while Kyle was alive, because Kyle, in his 2012 book American Sniper, had written about an alleged 2006 fight inside a bar after a fallen serviceman's wake. Kyle had written that (1) he and his group had encountered a man Kyle identified in his book as "Scruff Face"; (2) "Scruff Face" had insulted President George W. Bush, criticized the Iraq War, and sneered that SEALS "deserved to lose a few"; (3) a fight had ensued; (4) his patience exhausted, Kyle left "Scruff Face" on the floor"; and (5) "Scruff Face" reportedly had a black eye the next day.

Since Kyle had not identified Ventura as "Scruff Face" in his book, Ventura did not a defamation claim against Kyle. But Kyle went on a book tour and claimed on the Opie and Anthony radio show that Ventura was "Scruff Face."

Kyle repeated the claim again in another interview with Fox News.

Kyle's identification of Ventura as "Scruff Face" gave Ventura a defamation claim against him.

Truth would be a complete defense, but if Ventura had not said that a few SEALS should be lost, he should win, no matter how heroic a Navy SEAL and effective an American sniper Chris Kyle was and even after he died.

The defamation lawsuit was tried in a federal court in Minnesota, and a jury, not Judge Kyle, was given the task of deciding what really happened.

That jury, 8 to 2, ultimately determined that Ventura had been defamed.

The verdict was not unanimous, but both sides agreed to that and the Estate does not get a do over. If Taya Kyle, as Executor, feels she was misled into agreeing to a less than unaimous verdict, she should consider legal action against anyone who misled her, but she doesn't have a case for that against either Ventura or Judge Kyle and Friedman should know that and cease and desist from blaming Judge Kyle.

As The New York Times reported (www.nytimes.com/2014/07/30/us/jesse-ventura-chris-kyle-navy-seal-book-lawsuit.html?_r=0):

"In the hours before the verdict was announced, lawyers on both sides agreed to accept something short of a unified verdict without knowing which way the jury was leaning. On Monday, the fifth day of deliberation, the jury had sent word to the judge that it did not believe it could agree to a single verdict, so the lawyers began considering the possibility of a less-than-unanimous verdict while facing the likelihood of a deadlock that could have forced a new trial."

For Ventura, that was fortunate, since he might not have gotten all jurors in that case or a retrial to find in his favor. For the Estate, it was a huge mistake, because just one of the two dissenting jurors could have hung the jury and put Ventura to the choice of having his lawsuit retried or dropping it. (Unlike the Estate, Ventura does not have an insurance company to pay his legal expenses.)

Friedman blamed the Court for not declaring a hopelessly hung jury after five days and sending the jurors back to deliberate. the fact that parties agreed to a less than unanimous verdict and the jury reached a verdict soon after being sent out to resume their deliberations shows that Judge Kyle smartly avoided a retrial and deserves credit, not condemnation.

Bulletin for Friedman: The case was pending in a federal district court, not a Minnesota state court, and the Court was well within its discretion in sending the jurors back to deliberate further instead of excusing them and retrying the case before another jury.

Judge Kyle did not make a mistake.

The Estate made a huge mistake by agreeing to a less than unanimous verdict, and yet Friedman lambasted Judge Kyle for trying to avoid a retrial.

Either the genile Fox & Friends interviewer did not know that an Allen charge is permissible in a federal court, or he didn't know the case had been tried in a federal court, or he didn't care about the law and the facts and opted not to keep the interview friendly instead of "fair and balanced."

I doubt that Judge Andrew Napolitano, Peter Johnson or Megyn Kelly of Fox would have given Friedman a pass for his unfair shot at Judge Kyle or been so unprepared to keep things "fair and balanced' instead of just providing airtime for Friedman to vent.

In Allen v. United States, 164 U.S. 492 (1896), the United States Supreme Court case approved the use of a jury instruction intended to prevent a hung jury by encouraging jurors in the minority to reconsider.

The specific instruction in Allen was as follows:

"Members of the Jury:

"I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.

"This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.

"Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.

"If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.

"Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.

"You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.

"You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.

"I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you."

The kind of instruction, known as an Allen charge, is permitted in federal trial courts.

About half of the states have rejected the Allen charge, including Minnesota. See State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (Minn. 1973).

A state is free to do so in its courts, but an Allen charge remains available in all federal trial courts, including the United State District Court in Minnesota.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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