Both the jury and the judge made mistakes that led to a $1.8 million defamation verdict in favor of former Gov. Jesse Ventura, an attorney for the widow of bestselling author Chris Kyle argued in a brief filed Wednesday.
The verdict was at odds with the evidence, violated the First Amendment and should be overturned by the 8th U.S. Circuit Court of Appeals, wrote John Borger, attorney for Taya Kyle. At a minimum, the court should order a new trial, he said in the document.
Borger said the jury's award to Ventura of $1.3 million for "unjust enrichment" from the publication of Chris Kyle's autobiography "American Sniper" was "unprecedented" and unconstitutional.
The jury also decided that the Kyle estate should pay Ventura $500,000 for defamation for the book's account of a bar fight in California nearly 10 years ago. Kyle wrote that he punched a man named "Scruff Face," who was criticizing the war in Iraq and Navy SEALS during a SEAL wake. Kyle later identified the man in radio and TV interviews as Ventura.
Ventura denied the incident and continued the suit against Kyle's estate after Kyle was killed by a veteran in 2012.
Borger contends that the book's account did not meet the legal threshold of defamation because Ventura's attorneys did not prove "material falsity or actual malice."
At minimum, Borger argues, a new trial should be ordered because of "significant errors" including faulty jury instructions given by U.S. District Judge Richard Kyle, and because Ventura's lead attorney, David Olsen, made "prejudicial references" during the trial and in closing arguments, telling the jury the "insurer is on the hook if you find that Jesse Ventura was defamed." Such remarks would make a jury more inclined to award money to Ventura, since it would not come out of Taya Kyle's pocket.
When jurors asked a question, Borger wrote that the judge improperly instructed them to consider the whole subchapter, as well as the statements that alleged Ventura said he "hates America," that the SEALs were "killing men and women and children and murdering" and the SEALs "deserve to lose a few."
Borger also suggested there was enough testimony to suggest Ventura made remarks similar to what was quoted in the book. "No reasonable and properly instructed jury could have concluded on this record that there was clear and convincing evidence Kyle knew the three statements were probably false when he published them," Borger wrote.
Borger said the district court had defended the $1.3 million award for unjust enrichment, concluding it was 25 percent of the $6 million in royalties that Ventura claimed the book generated. Borger said the dollar amount was inflated but the percentage was "plucked … from thin air."