The jury in the Jessie Ventura defamation trial will have to sort out dueling views of reality when they get the case Tuesday in U.S. District Court in St. Paul.
In closing arguments Tuesday morning, a lawyer for the estate of the late Chris Kyle can be expected to argue that testimony from a slew of witnesses, who saw some element of the confrontation, prove that Kyle accurately reported the former governor was punched out at McQ’s Irish Pub in Coronado, Calif., in 2006 after making an odious remark at a wake for a Navy SEAL killed in Iraq.
Ventura’s attorneys, who have labeled Kyle’s account fiction, are likely to argue that those witnesses, many of them loyal to Kyle, saw the events through a haze of alcohol, and some of their descriptions contradict. They place the verbal exchange and fight in various places — the bar’s patio, parking lot and sidewalks on either side of the bar.
That Kyle’s barroom witnesses outnumbered Ventura’s by 11 to three might suggest that the courtroom odds are against Ventura. But Judge Richard Kyle, who is no relation to Chris Kyle, is expected to tell jurors it is not the number of witnesses that should influence their decision, but the credibility of the testimony, a standard court instruction.
Then deliberations will begin in the case, in which Ventura claims that Kyle ruined his reputation in his 2012 bestselling memoir, “American Sniper: The autobiography of the most lethal sniper in U.S. military history.”
Kyle was killed in 2013, and Ventura has continued the suit against the estate, and Kyle’s widow, Taya, who oversees it.
The 10-member jury should get the case by midday.
True or false?
“The first thing the jurors have to establish is whether what was published in the book is false, because under American law, no matter how harmful something is to someone’s reputation, if it’s true, it can’t be the basis of a libel claim,” says Jane Kirtley, professor of media ethics and law at the University of Minnesota.
The jury will have to decide whether Chris Kyle’s account is substantially accurate, even if he got some facts wrong.
Kyle wrote that Ventura “swung” at Kyle, but there is little evidence that he did. “I laid him out,” wrote Kyle, and two witnesses testified they saw a punch thrown. Several witnesses saw no punch, but did see Ventura being helped up. “Tables flew,” wrote Kyle, but no one testified to that.
“Rumor has it,” Kyle wrote, that days later Ventura went to a SEAL graduation with a black eye. No witnesses saw him with a black eye, and Ventura’s attorneys produced photos that showed no marks on him.
Before the fight, Kyle wrote, Ventura allegedly made a nasty remark about President George W. Bush, and stated, “We were doing the wrong thing” in Iraq, “killing men, women and children and murdering them.” He called the Sept. 11, 2001, terrorist attacks “a conspiracy” and just before Kyle punched him, Ventura allegedly told him, “You deserve to lose a few,” apparently referring to SEALs who were deployed to Iraq. This comment, and some of the others were heard by various witnesses put on the stand by Kyle’s legal team.
Ventura, a former member of the underwater demolition team connected to the SEALs, testified that he was devoted to the SEALs and would never make such a remark. He said he blames the politicians who send soldiers to war, not those who fight for their country.
The remark that SEALs “deserve to lose a few,” which seems to be the key comment, was heard in the evening by witnesses, and underscores the possibility he said it. But some heard him say it to groups of SEALs in the patio, while others say he said it outside the bar, or before the punch.
Charlene DeWitt, the wife of one of Ventura’s SEAL friends, said she sat near Ventura throughout the evening and never saw a fight. She said she did hear Ventura say: “I don’t think this war is worth one SEAL dying for.” She said that expressed Ventura’s “love for Navy SEALs.”
Witnesses for Kyle’s side testified they saw no woman near Ventura that night.
Details of defamation
Attorney Marshall Tanick, who has taught law classes on defamation, said jurors must go through several stages to reach a verdict that Ventura was defamed.
They must first conclude that Kyle’s account is substantially false. If they find it is substantially true, the trial is over, and the former governor loses.
If they find it was false, they must then determine if it damaged his reputation. If they conclude that it did, they must decide if Kyle knew it was false and published it with reckless disregard for the truth.
If they reach that finding, they must determine the amount of damages. The book sold 1.5 million copies and attorneys argued about the impact the three-page subchapter on Ventura had on sales.
“There have been several cases where famous people received $1 in damages,” Tanick said.
Kyle’s attorney, John Borger, could argue in his closing argument that the book has done far less damage to Ventura’s reputation than Ventura has done to himself. During the trial the defense cited a 2011 news conference in front of the federal courthouse in St. Paul where he called the United States “fascist.”
“I will never stand for a national anthem again,” Ventura is heard saying on an audio recording. “I will turn my back and I will raise a fist.”
Ventura testified that the news conference was partly filmed to introduce “Conspiracy Theory,” a TV show he was hosting.
The attorneys for both sides were hammering out details of the jury instructions with Judge Kyle on Monday.
“The great drama of jury trials is you can give juries all kinds of instructions, and to some extent they will follow them and in some cases they will do what they want to do,” said attorney Mark Anfinson, who teaches communications law at the University of St. Thomas and specializes in media issues. “Juries make up their own minds and they will sometimes leapfrog over or short-cut the technical rules.”