Max Mitchell, The Legal Intelligencer
A recently published book about Kermit Gosnell, the infamous abortion doctor convicted of murder in 2013, is now the object of a court action by the judge who presided over the case, Philadelphia Court of Common Pleas Judge Jeffrey Minehart, who is suing over what he views as a none-too-flattering portrayal.
In mid-June, Minehart sued the authors and the companies that published “Gosnell: The Untold Story of America’s Most Prolific Serial Killer,” which, he alleges, defamed him as a corrupt stooge in a system that worked to cover up Gosnell’s crimes. Among other things, Minehart’s suit, filed June 22 in the Philadelphia Court of Common Pleas, says the authors incorrectly state he was a “drinking buddy” of Gosnell’s defense lawyer, that he is thought of as a “pro-defense judge,” and that prosecutors were dismayed that he had been assigned the case.
Minehart’s complaint challenges those comments as easily disproven—for instance, he said it’s a “well-known fact that” Gosnell’s attorney has not had a drink in 20 years and that he was not randomly assigned the case, but instead prosecutors and defense attorneys agreed to have him handle the trial.
The general counsel of the publishing company did not return a call seeking a response. Emails to the authors through their media company were not replied to.
To help him bring his case before a jury, Minehart has hired well-known defamation attorney George Bochetto of Bochetto & Lentz.
Bochetto spoke with The Legal about the coming litigation.
Q: What are the challenges you see in bringing this suit?
A: Well clearly Judge Minehart is a public official, so it’s not going to be enough just to prove falsity by a preponderance of the evidence. I’m going to be held to a much higher standard, which in the law of libel is called actual malice. I have to prove that with clear and convincing evidence. It’s a higher burden in both regards. Actual malice is generally a knowing falsehood. It’s always a challenge to prove that, although in this case we believe we will be able to, or we would not have filed.
Q: Are you concerned that the lawsuit will give more publicity to the allegedly defamatory book?
A: That is always a consideration in a defamation action, but the book actually has received a great deal of attention. For example, it is in the top five Amazon bestsellers. They’re also coming out with a movie. There have been a few private premieres, and it’s about to come out publicly. So I think there’s already a great deal of attention to the book. Of course the book portrays Judge Minehart in the worst possible light any judge can be portrayed. It’s an awful, awful act of meanness and stupidity by these authors.
Q: With Judge Minehart being a member of the Philadelphia bench, are you expecting the defendants to challenge venue?
A: Without getting too technical, I do think they’re going to make that kind of motion. I don’t think it’s going to be a venue challenge. They’re going to ask for the recusal of the entire Philadelphia Common Pleas bench, and ask for an out-of-town judge. Whether we’re going to oppose that motion or not, I haven’t decided. In any event, it’s a jury trial, so I think that the issue is not of absolute critical importance, but it’s nevertheless an important consideration.
Q: The suit alleges that Minehart is portrayed as a liberal hack in a “liberal, pro-choice sympathetic justice system.” Do you think Philadelphia’s heavily Democratic voter base might make it difficult when it comes to showing the claimed damages?
A: I think the context and environment that they created, that is not the basis of our defamation. If that was the only thing that was there, then you know, perhaps it’s merely their opinion. But we’re much more concerned with the affirmative misstatements of fact about the judge that have nothing to do with opinion, or politics, but have everything to do with portraying Judge Minehart as a corrupt hack. That’s what the lawsuit is about. Did they make those statements in the context that also Philadelphia is a liberal establishment? Yes, but that is more of an opinion than anything, not the basis of our lawsuit.
Q: Are there any particular litigation strategies you expect to deploy, or any way you see this case unfolding?
A: Libel cases and defamation cases typically have very broad discovery parameters because when you talk about damaging a person’s reputation, anything that relates to that reputation, even if it’s otherwise irrelevant to the facts of this case, is nevertheless discoverable. Likewise, the authors are going to be subjected to searing discovery in terms of what they did and didn’t do in terms of their publication.
As you can see from some of the allegations in the complaint, there were some very fundamental things that were a matter of public records, which directly contradict statements of fact made about Judge Minehart by the authors, and it will be very interesting to see exactly how they’re going to attempt to explain those away.