What tribal societies can tell us about justice and liberty

[RhondaRShearer]

@JMM99 you wrote "Stinky's 21 Apr 2009 special report, Jared Diamond’s Factual Collapse: New Yorker Mag’s Papua New Guinea Revenge Tale Untrue, Tribal Members Angry, Want Justice (492 KB in pdf on disc), which was essentially a press release."

In fact, our report says very little about the lawsuit. And to say that our serious discovery and research was a "press release" no doubt ignores the importance of our discovery. Namely, that innocent men were charged and convicted in the court of public opinion by a powerful scientist and magazine of heinous crimes--without one ounce of verification before publication. This is an outrage to the freedoms the press has been given and I would think this would have some meaning to you?

Instead, our conclusion that this was injustice to innocent persons and wrong, and our call that such unethical behavior should not be tolerated by decent society is criticized by you.

As you know, there is a tradition in journalism of investigative reporting that leads to either enforcement or litigation as crimes or wrong behavior is revealed. A newspaper, or other media outlet, for example, then advocates for justice to be served. It is called "editorial content" and serving the public good, not a press release.

[jmm99]

your 21 Apr 2009 article is all about the lawsuit.

I find it surprising that someone who is in journalism would object to a characterization of the article as a "press release". Are you contending that a "press release" is some lesser form of journalism and cannot contain "serious discovery and research" ?

On reflection, there is little point in my continuing any sort of discussion with you concerning this topic because it appears to me that, in this area, if someone is not for your position, you deem that someone to be against your position. In short, that someone is "either with us or against us" (sound familiar ?). Both of us have better things to do with our time.

Regards

Mike

[Schmedlap]

... innocent men were charged and convicted in the court of public opinion by a powerful scientist and magazine of heinous crimes--without one ounce of verification before publication.

Merely airing a view does not equate to a "conviction" in a real or imagined court, any more than arguing an issue of fact in a real court equates to receiving the judgment one seeks.

[RhondaRShearer]

@JMM99, Your assumption about the timing is wrong. We held our report until the day after the lawsuit to make sure that the informants themselves had chosen to go public because of the potential dangers for them. Indeed, we were even accused of endangering our informants in an editorial in Anthropology Today. When we pointed to the dates--that the lawsuit was filed before we went public and therefore the informants themselves made that choice--they agreed to publicly apologize and make a corrections. (See NEWS, page 29, ANTHROPOLOGY TODAY Vol 26 No 2, April 2010).

Next, let's not play coy. To call a serious intellectual report, a "press release" is an insult. Yes, press releases are not journalism. They don't pretend to be investigative reports where the truth--with both good and bad news--is explored and fairly reported from multiple sides of an issue or an event and other journalism standards are maintained such as fact checking, protecting sources and acting for the public good. To publish a press release undisclosed as an independent report would be highly unethical and discrediting.

Your global point about my character -- "it appears to me that, in this area, if someone is not for your position, you deem that someone to be against your position"-- is a straw man. I was very specific about my criticism of your use of the words "press release" to describe our report and your selection to criticize us as suspect instead of Diamond and the New Yorker in light of the facts they admit.

@Schmedlap, insulting someone (publicly stating that their serious investigative report is a press release in disguise) is not "Merely airing a view."

[jmm99]

the Supreme Court (NY's trial court) for New York County (aka Manhattan) has a docket entry system similar to PACER, but free - the docket card for INDEX NO.: 105519-2009; PLAINTIFF: MANDINGO, HENEP ISUM; DEFENDANT: ADVANCE PUBLICATIONS, INC., has three pleadings of material interest:

Summons and Complaint 10/19/2009 - by pls (also on the Stinkyjournalism site as previously posted)

Answer 10/15/2009 - by defs.

Notice of Motion 11/30/2009 - by defs (for Summary Judgment).

The Motion for SJ cites a number of pleadings that are not listed on the online docket card:

... affidavit of Jared Diamond, sworn to on November 20,2009, the affidavit of Thomas Summer, sworn to on November 18,2009, the affidavit of Pamela McCarthy, sworn to on November 20,2009, the affidavit of Peter Kovacs, sworn to on November 12,2009, and the affirmation of Carolyn K. Foley, dated November 23, 2009, and their accompanying exhibits, and upon the accompanying Memorandum of Law in Support of Defendants Advance Publications, Inc. and Jared Diamond’s Motion for Summary Judgment ...

The motion was noticed for February 8, 2010; adjourned to April 5, 2010; and adjourned to May 18, 2010 (docket entries). Deposition deadlines are set for Tuesday, May 29, 2012; so, this case has got a long way to go.

That's all, folks

Mike

[RhondaRShearer]

I have read these affidavits listed above. They deal solely with procedural issues, such as statute of limitations for the magazine and DVD and whether or not the right party was sued. However, the interesting one is by Jared Diamond.

Instead of listing his research methods, arguing or providing evidence that what he wrote was true..Diamond writes: "I prepared the Article based in large part on information the plaintiff Daniel Wemp told me. At the time I prepared the Article and submitted it to The New Yorker, I believed it to be a true and accurate account of events as Daniel Wemp had told them to me."

That was it. No other evidence or arguement is offered. See link
http://www.stinkyjournalism.org/imag...ed_Diamond.pdf

[jmm99]

You correctly carved out the only material portion of Diamond's affidavit:

I prepared the Article based in large part on information the plaintiff Daniel Wemp told me. At the time I prepared the Article and submitted it to The New Yorker, I believed it to be a true and accurate account of events as Daniel Wemp had told them to me.

Odd affidavit in the context (it doesn't take on the amended complaint para by para). The obvious defense being asserted is "I was misled by Wemp"; so, therefore, an "absence of malice" (Paul Newman and Sally Fields ).

IMO: I'd say (but I shouldn't read tea leaves) that there is nothing in this affidavit for a judge to bite on so far as summary judgment is concerned. For a defendant to prevail on summary judgment, no material issues of fact can exist and, on those uncontested facts, the defendant must be entitled to judgment as a matter of law.

IMO: The amended complaint (by Richard Asche, who has good creds) lays out the various article passages that Diamond (based on his affidavit) presumably will testify were told him by Wemp. The complaint alleges that Wemp did not say what the article claims he said. Hence, questions of fact exist as to what Wemp told Diamond (Diamond: he told me "A"; Wemp: I did not tell him "A"); and the case should go to the jury. However, since "Judge McCarthy" ain't hearing the motion, his opinion ain't worth spit.

The motions based on NY's 1 year statute of limitations are important, since if that statute was blown (late filing), the case can be tossed regardless of its merits. The SJ Motion mentions a defendants' Memorandum of Law filed. If you have a link to that, it would spell out the defendants' theories more clearly. And, if Asche has filed a responsive Memorandum of Law, a link to that would be most enlightening.

Regards

Mike

[RhondaRShearer]

Hummm. Have to look. I was told the Memo was filed and public. I appreciate that you've read this stuff and offer "IMO" s. Thanks. One question:

Is this case like the Paul Newman movie in that malice is not the bar that must be met because the plaintiffs in his case are without doubt private, not public figures?

The hilarious part of the Diamond's affidavit statement is the tautology (the premise repeated in the conclusion) "He told me this, and at the time I wrote the article I believed what he told me."

This defense may cover the Daniel Wemp problem, that is if Diamond and not Wemp , is believed. However this does not cure the problem New Yorker and Diamond have with the other plaintiff, Henep Isum Mandingo who Diamond never spoke to.

The possible defense "Daniel told me that he killed..." does not also include, as far as I know, "Daniel told me that he and Isum killed ..." when no attempts to do any independent verification was done.

Another interesting point is there is no proof that Wemp said these things in 2001-2002, as the article dates his quotes, since there are no notes or tape recordings. The only notes Diamond took were from one meeting in May 2006.

Diamond had a white AU bird tour guide, David Bishop, with him at all times he was with Wemp, but Bishop says he does not remember anything of what Wemp said.

Wemp has a couple of witnesses (two indigenous men who were working for World Wildlife Fund in 2006, who were also Wemp's employer when he drove Diamond back in 2001-2002) from May 2006 who heard some of what Wemp said and back him up.

-Rhonda

[jmm99]

asked Pilate - no answer is given in the canonical Gospel text. In the area of defamation, we may not have advanced much in 2000 years.

First off, absolute truth is an absolute defense regardless of the seriousness of the alleged defamation (consider Arlo Guthrie's lines in Alice's Restaurant when he admitted to littering ). However, that seems not likely in this case given your 10-part series, unless all of that is contradicted by contrary evidence. So, this case will likely be one where the article will be proven "untruth" - but that is not quite enough to win (IMO).

NYT-Sullivan covers the situation where the plaintiff is a "public figure" - that is something of a term of art. You're a public figure; so is Diamond. I'm probably not (except in a very limited community); and two little guys from PNG would not be (IMO). In any event, the test that public figures have to meet is that the publisher of the statement in question knew that the statement was false or was published in reckless disregard of its truth or falsity. Hustler-Falwell extended the NYT-Sullivan standard to public figures' claims that emotional distress was intentionally inflicted on them.

As to non-public figures, Gertz-Welch allowed states to establish their own standards of liability for defamatory statements, so long as they do not impose liability without fault. That is, the state may establish some form of negligence as the minimum test - e.g., lack of ordinary care in fact checking sources would be one possible test. But, if the state standard is lower than actual malice (the standard applying to public figures), then only actual damages may be awarded.

Since this case is within the territorial jurisdiction of the US, the 1st Amendment Constitutional standard applies. However, that still leaves the question of which jurisdiction's law covers the substantive libel standard - New York (where the decision to publish was probably made) or PNG (where the damages, if any, were sustained). So, there is a possible choice of law question involving international and comparative law. I have no idea of what current NY libel law is (hell of thing to be said by someone who still has an active NY license); nor that of PNG. That's why I was interested in the Memoranda of Law (esp. what Asche has to say).

If (which might be a big "if" if your witnesses hold up) the jury buys that Diamond was sold a bill of goods by Wemp, I think Wemp's case would be toast. That would be akin to my murdering my parents and claiming mercy on the basis that I am an orphan. But, Mandingo would still have a case - and a conflict of interest between Wemp and him. I can't see Asche even arguing that alternative. He will hammer away that Diamond fabricated a goodly part of the story - so, it will get down to whom the jury believes most.

Regards

Mike