A criminal profiler named Richard Walter recently saw his false light suit against New York Magazine dismissed. Mr. Walter failed to persuade the court that the magazine's characterization of him as a "fraud" was actionable.
New York Magazine published an article entitled "The Case of the Fake Sherlock." The subtitle stated: "Richard Walter was hailed as a genius criminal profiler at murder trials, at forensic conferences, and on true-crime TV. In reality, he was a fraud. How did he get away with it for so long?"
The article discussed Mr. Walter's questionable claims about his experience and his involvement in two cases where appellate courts overturned convictions that Mr. Walter had helped secure. In the first case, involving a defendant named Robbie Drake, the article noted: "He falsely claimed that at the L.A. County Medical Examiner's Office, he had reviewed more than 5,000 murder cases. Walter said he was an adjunct lecturer at Northern Michigan University (he had spoken there informally, possibly just one), wrote criminology papers (he had never published), and had served as an expert witness at hundreds of trials (he'd testified in two known cases—about a simple chain-of-evidence question and in a civil suit against a car company)."
In the other case, involving a defendant named Nick McGuffin, the article stated: "There was no new physical evidence, but Walter rearranged puzzle pieces that didn't quite fit and crafted his own theory: McGuffin was a jealous boyfriend who hit Leah in the face and dumped her body in the woods."
The Second Circuit Court of Appeals granted Drake's petition for writ of habeas corpus on the ground that his conviction was obtained by the knowing use of perjured testimony, namely, Walter's testimony about his qualifications and that he had only learned the facts of the case the night before. McGuffin's conviction was overturned based on newly discovered evidence. After his conviction was vacated, McGuffin sued Walter, claiming "that the state fabricated evidence, coerced witnesses, and withheld exculpatory information." In a deposition in that case, Walter "could not recall the name of any inspectors he'd worked with there and appeared not to know that Scotland Yard and the Metropolitan Police are, in fact, the same organization." And "[w]hen asked where Scotland Yard was located, the man who claimed to have visited the agency's offices up to 30 times said he didn't know and then offered 'downtown London.'"
A key question in the case was whether Walter could prove the fraud characterization false. The Court determined that Walter failed. It noted "that characterization is incapable of being proven true or false. Plus, the Article discloses the facts underlying this opinion, and 'readers can easily judge the facts for themselves.'"
The Court also concluded that Walter failed to establish "actual malice" – that is, demonstrating that the magazine published the article knowing the claims were false, or with reckless disregard for the truth or falsity of claims. In the Court's view, Walter failed to plead facts that established actual malice. It found that Walter's "generalized assertions" that the magazine published with actual malice were insufficient.
Walter also made a creative argument. The article appeared online before it appeared in print. Walter contended that online comments posted in response to the online version refuting the statements established that the magazine published the print edition with actual malice. The Court was having none of it. As it held, "[Walter's] reliance on online commentary posted to the Article by anonymous internet users as demonstrating knowledge, is plainly unpersuasive and merits no further discussion."
The Court dismissed the complaint "with leave to amend." That means Mr. Walter can try again. It will be interesting to see if he takes another shot.
