The first case listed for oral argument this morning is Leon A. Kendall versus the daily news publishing company. Enjoy Blackburn. Nice green. We could have counsel for both sides that come forward and be seated at counsel table, please. It's a great enough distance between here and the podium. We almost need binoculars to see counsels. So please don't hide back there in the recesses of this new courtroom. All right, Ms. Green, can you come forward please? Thank you very much. Good morning, Your Honours. Good morning. And advise these are very sensitive. So I hope that I'm not going to blast your ears. They are sensitive for all of us. We're in a similar predicament. Five minutes of my time for re-level. That's grand. May I please the court? My name is Julie Green and I represent the plaintiff appellant in this case, retired judge Leon A. Kendall. Judge Kendall was a judge of the Superior Court of the Virgin Islands. Virtually from the outset of his term, the Virgin Islands daily news launched a campaign of portraying him as being soft on crime and specifically portraying him as a judge who released dangerous criminals on bail
. Judge Kendall became a lightning rod for this campaign part because of a stand he took against a practice that was prevalent in the Virgin Islands at that time of setting bail according to a standardized menu of offenses rather than considering the particularized circumstances presented as is required by the federal bail. And we, of course, having read the record, not to mention the briefs, are well acquainted with the specific alleged defamatory matter, three actual types that occurred here. But there are a number of very substantial issues here and some that are unsettled as far as the Third Circuit is concerned. So, if we could move directly from the facts to some of the legal issues here, Ms. Green would be appreciated, I'm sure, by the panel and necessarily the facts enter into the defamatory matter that is alleged. An initial question that I have goes to the nature of independent review as we're required to apply it here. And you state in your brief that independent review requires us to defer to the historical facts which the jury found. And is that different from the standard deferential review of jury verdicts that this court would be called upon to apply? It is different. And in what respect? The basic difference is the method by which the court proceeds. First, the court needs to compile the fact that the jury necessarily found. What makes independent review different from the normal standard of review is that then the court goes on to examine those facts that the jury found as it is compiled them to determine for itself whether the finding of actual malice is supported. In other words, the court doesn't ask, could a jury on these facts reach this conclusion, but rather do I, as the judge, believe that the conclusion is fairly rate? Is the best authority, the major authority for us to be looking at hearthanks? That's correct, Your Honor. And there are other cases following that. I think the Massachusetts Supreme Judicial Court of Murphy V. Harold does a nice job of laying that out. There is another very useful statement in Shivoni V. Time, a case. That's our case. In footnote 35, the court lays out how the actual malice evidence is analyzed that the court needs to look at the defendant's rarely admit to having. So should we be identifying what evidence or testimony the jury must have rejected? Is that what's called for here? The evidence that the jury must have found, I would put it that way, Your Honor. And in this case, I think there are two crucial pieces of evidence that the, there are two crucial errors committed by the Virgin Islands Supreme Court when it held that Judge Kendall failed to establish actual malice as to state of mind, as to defamatory meaning
. And those are twofold. First, what the Virgin Islands Supreme Court did was it essentially adopted Ms. Blackburn's own self-serving testimony about what she meant. When she said, what the Virgin Islands Supreme Court did was it said Judge Kendall failed to ask her what she actually meant to trial. And in fact, and I think the use of that word is very revealing here. In fact, what she testified to is Mr. Castillo had it. You're talking, all right. We're now focusing on the Castillo article. So, I am Your Honor. I apologize for the question. All right. What credibility determinations in your view to the jury have to have made relative to the Castillo bail article? Two important ones at least, as to defamatory meaning. First, it necessarily rejected Ms. Blackburn's own description of what she said she meant. She said she meant and. You had a history of violence? Mr. Castillo had a history of violence and Judge Kendall did choose to release it. I think they were her. She also testified. She continually evaded the question about why she, about the truth of what she said when she was confronted with the truth
. She kept insisting that her reporting was accurate. Does your entire case come down to her use of the word despite? No, it doesn't, Your Honor. The case law is very clear that intended meaning. Suffice to support, by clearing convincing evidence, actual malice can lie also in the juxtaposition of true facts, regardless of the word despite. All right. You've just introduced the term intended meaning, which is critical to the second major issue that I, I regard as important here beyond our application of independent review is what actual substantive standard we are to apply. And because we're talking about defamation by implication, at least as the Castillo articles, we're talking about something different or something beyond mirror New York times versus Sullivan actual malice, are we not? I respectfully disagree, Your Honor. I don't think we're talking about defamation by a new endow. Because the word that's used here is despite, she said in places, he had a history of violent full stop. Well, but literally, literally despite can mean either by implication that he knew about it, or it can mean that he didn't know about it. So literally, despite leaves open those two choices, how can you say then that it's not defamation by implication? Because the word despite carries a great deal of meaning here and the community individuals from the community testified to that. The word despite means not with standing. It means that something happened. Not with standing can still be taken literally and one can infer that Judge Kendall had no knowledge. It didn't say despite the judge knowing he had a history of violence. It didn't say that it's not. It said despite something and the something was true. But I'd submit to the most natural meaning of the word despite is that Judge Kendall acted in disregard of something. Maybe, but that's why we're dealing with a new endow, not something that is defamatory on its face. Even accepting. And that's why it's important, I think, that even if you simply address our question for argument purposes only, we may be called upon if we disagree with you to apply New York Times versus Sullivan in a defamation by implication context where as far as I've been able to tell, we've not done that before
. So what test should we apply? So I'm glad you asked that. The test that you should apply, in fact, there isn't that much disagreement between the parties as it turns out. The authorities that have actually addressed this issue are almost uniformly in agreement that the test is. You don't see a circuit split at all in some of the in the language relative to defamatory meaning or knowledge of defamatory meaning. What I see is that the cases that have studied the issue in more depth tend to agree that the, and in fact, I think the Daily News puts it well in its own way, saying that there really just for litigation purposes isn't much substantive difference between intending to convey a meaning and intending to speak, knowing that a meaning is naturally conveyed and that for evidentiary purposes, they ultimately are the same standard. And that's why I said that. I appreciate that point and I'll be interested to hear from your adversary on that matter. So you are saying that you don't see a circuit split, that you don't see a substantive difference between a test that says the defendant's intended the defamatory meaning or knew of it as I think the seventh circuit has articulated in the Sains case or intent alone, which is how I read the Newton case in the Ninth Circuit. I think the difference lies more in the nature of the evidence presented. I think that the intent standard as Newton has articulated it would in fact be satisfied with evidence sufficient as the Daily News itself points out with evidence that the defendant actually knew about the defamatory meaning and proceeded to publish anyway in this regard of it. And I think a nice example of that is the, an Eastern District of Pennsylvania case, a Sprig V.A.B.A., where the court asked was their actual malice, was their clear incandence in evidence of intent to publish a defamatory meaning. It was a word that had simply two meanings and the evidence that the court considered was that the defendant looked up the meaning and that a generic and saw that there were actually two meanings and one of them was defamatory before he called the plaintiff up the But we don't have anything close to that here, right? Yes, we do. We have a very unusual set of facts where we don't have to actually reconstruct what she thought before she uttered the statement because we know that she heard exactly what the statement meant and then proceeded to utter it. She published it first on April 14th, 2007. She then covered the protests. She recorded a particular protestor who said, with Mr. Castillo, the red flags were here
. But interestingly, am I remembering correctly that after she covered the protests, she did not in a subsequent article, used the despite language. Respectfully, honestly, she did. She used it twice again, again, on, she covered the protests immediately on April 16th and used it again in that very article. And then again, in a sidebar recap of Judge Kendall's career on April 24th. So what we see is a clear use of the meaning with actual knowledge of how the community was interpreting it. And to your point about independent review, Your Honor, I would also note that the question of how the community interpreted a statement whether a defamatory or not is a classic question of fact, as reaffirmed by this court number of times, it's a question of fact in which I'd submit there also should be deference to the jury's finding that the community did in fact interpret it in a defamatory way. Did the Virgin Island Supreme Court get the substantive, standard right? Did they state it correctly? No, they did not. They did not apply it correctly. They noted in case law. Did they articulate it correctly? I'm not asking if they applied it correctly. I realize you don't think that they applied a standard correctly, but did they articulate the correct standard? No, they articulated it as intended to apply when it should have been intended or aware of. Did they correctly engage in the kind of independent review that earlier in this Q&A we've discussed that is looking to what the jury must have rejected? No, they did not. For two reasons. First, they incorrectly adopted her own statement of what she intended as if that were dispositive. And second, they didn't conduct an independent review of the whole record as they were required to do. And they ignored the ample circumstantial evidence of that she in fact was fully aware of the defamatory meaning understood what what meaning she was conveying and yet proceeded repeatedly on at least two more occasions to publish the same defamatory statement. Aren't we really only talking about the Castillo articles as being defamatory here? As I recall, the defendants argue in their brief that you can see that Williams was unsupervised at the time of the standoff. They said that at page 44 of their brief. So is there anything left? No, that doesn't begin to resolve the issue because that's not what it was. Why not? That was the, here we're not talking about the defamation by implication. I mean, that was the flat out statement in that article
. Was it not? No, I disagree. The statement was about what Judge Kendall had ruled three days earlier. I mean, the gist of it, the gist of the entire reporting was that Judge Kendall was sending dangerous criminals out into the community to wreak havoc. And there was witness testimony that that was the sting of the Williams statement. So you sued for the gist of the article rather than what the article actually said? As we're correctly entitled to do the defamation lies in the defamatory sting of the article, irrespective of what the literal words may say. Obviously, the literal words are important, but the issue is the defamatory said. So the part is today should be concerned that when they write articles that are true, that invoke the eye of the public, they're going to be sued for defamation because of the sting of the article. Their cases are legion, Your Honor. I give you a very nice example where the court found actual malice, where the court affirmed a summary judgment on, sorry, the court said there was sufficient evidence of actual malice. Where the statement was, even though there's no evidence that financial problems affected the doctor's practice, comma, patient after patient says that the doctor sold them a promise he couldn't keep. And the court had no problem saying that there was a defamatory meaning that was exactly the opposite of what the statement said on its face, and that the juxtaposition of those two clauses alone was sufficient evidence by clearing convincing evidence that a defamatory meaning was intended, hence actual malice. And it sent the case to the jury on that basis. What about the retirement article? Wasn't that literally true? That is that the matter remained pending? No, it was literally false, Your Honor. The commission had been disbanded, effective in January, 2008. There was an appeal pending, was there not? But it was an appeal from a final judgment. In other words, the case. And I'm sure that was of enormous significance to the reading public. I'm sure they were all able to make that very fine distinction. The practical effect is that the cases couldn't have been pending. There was nothing for Judge Kendall to defend. There was no proceeding
. The case was over. The appellants might have prevailed, and the disciplinary apparatus might have been reinstated, right? It might have been. Why is that not pending? Because the implication was that two years later, there were still these cases pending against Judge Kendall as if there were still live complaints. But in fact, there weren't live complaints because there was nothing to defend. And the cases were not literally pending. It was a final judgment that had entered. Well, we'll have you back on Rebuttal from this green. Thank you very much. Thank you very much, Your Honor. I'll ask Mr. Sullivan to come forward, please. Good morning. Good morning, Mr. Sullivan. Could we begin, as we began with Ms. Green, and that is with respect to just what independent review requires of us and of any appellate court? Judge Kendall got a jury verdict. It was taken away from him. Do you agree that the jury's credibility determinations must be deferred to under independent review? And if so, what factual determinations? Sure, jury. Sure, Your Honor. I do agree that some deference is due to the jury findings on issues of credibility. I think that much is clear
. The point of independent review, though, Your Honor, is that this court has a special role in this process. What plaintiff has posited is what is similar to what's done in normal civil cases. And that is that the rule that you're familiar with is that courts may not weigh the evidence or substitute its version of the facts for the jury's version. But your adversary clearly agreed that this is not the same standard by which in a differential way we review jury verdicts. That is true, Your Honor. And if you look at the words that come out of their mouths, that is indeed what they say. But what they ask this court to do is something that is very much akin to what your kind of standard sufficiency of the evidence kind of review is. And the whole point of independent review in a First Amendment context is that it is fundamentally different. Well, one of our colleagues, a panel of the First Certificate, has said that independent review is not a limitless ransacking of the record as a whole. And I assume you would agree with that. So what I would indeed, what is it that we're called upon to do and follow up questions that would be did the Supreme Court of the Virgin Islands take that approach? They did, Your Honor. Here's what they called on to do. I think the clearest guidance that one can find on this whole process and it is admittedly murky. But if you look at what the Supreme Court did in the Hardhanks v. Connitten case, in there the court said, look, we have to examine the factual record in full. We have to roll up our sleeves and go through that record. And you see that the court did in fact do that. It did a certain court. Yes, sorry. No, I'm sorry. Oh, our United States
. It's a court. All right. And in what the court did there, it said, look, we look, we tried to discern what testimony the jury must have rejected. And we consider that alongside the undisputed evidence in the record. Where did the Virgin Islands Supreme Court invoke that testimony the jury must have rejected language from Hardhanks? I don't see it invoked in terms of what they wrote, if you know what I mean. But I think that is the analysis that they employed for this reason. What this case is, you can talk a lot about these credibility, perminations and all of that. But at the end of the day, Your Honor, this case is not a close case. Well, and I'm asking you whether it's a close case. But I'm interested analytically in the path that the Virgin Islands Supreme Court took and the path that we might take. And we agree that it's independent review. And we agree that independent review is not the same as the Garden of Variety, one of the differential review that we would ordinarily use. So assuming that the Supreme Court of the Virgin Islands did not, certainly explicitly use the what the jury must have rejected approach, we're still employing our own standard of independent review. Right. And which means that we must look to those factual determinations that were made as credibility determinations by the jury and then determine what the jury must have rejected. So what should we look at here in the record? This is what I'm, I seek to help the court by suggesting this, where you can make your job easy is the second half of the hard-hank analysis in this case. That is what I'm telling Your Honor's. Look at the undisputed record. This is not Your Honor. He said, she said kind of case. Most of this was undisputed
. You didn't have Joy Blackburn testifying, listen, I talked to Judge Kendall and he said X, where she said, listen, I talked to Judge Kendall and he said X, Judge Kendall said, I said X. Well, you can't dispute what appears in print and what both sides have agreed appears in print. And would you agree that this is a, a defamation by implication case as to the Castillo artist? Absolutely. Absolutely. Because Ms. Green does not agree with that. As such, isn't the meaning that one would expect to be inferred from despite going to be that Judge Kendall was aware of this prior record and nonetheless released, Mr. Castillo? I think not. I, in fact, Your Honor, I would say that I don't think that's the reasonable meaning. I would also note for you that the trial is an A reasonable meaning. Is it A reasonable meaning? I don't think it is. Well then how can this be a defamation by implication case if it isn't? Because here's one thing, the trial judge who heard all of the testimony and sat there throughout the trial, at the end of which he ruled it was not a reasonable meaning as a matter of law. And we're sitting here wrestling with Ms. Blackburn should have foreseen a meeting that the trial judge ruled is unreasonable as a matter of law. This wasn't a reasonable meaning. Your Honor, and she did not have whether you make the standard intent or you make the standard awareness, she did not have the conscious sense of the meaning that the plaintiff argues here. And let me, let me share with you. So, are you saying, is that another way of saying she didn't intend the defamatory meeting? Well, it is, Your Honor, but let's go to one of the... Well, let's address what the substantive standard here is, which I also inquired of Ms. Green about. Once we're past this threshold independent review notion, what is the actual malice test here if this is a defamation by implication case? Right. You have to have, you have to have some evidence that the defendant intended or if you want the other formulation, the alternate formulation was intended or was aware of this implication. Because if you don't, you can't make out, you can't make out the actual malice there. And what the courts do, if you look at these cases carefully, courts, they articulate various phrasing of the test. Yeah, I would have handed it down carefully and I'm not sure I understand them or let's point out another way. I'm not sure I can synthesize them. There's, I read them in certain ways and think there may be a circuit split. And in other ways and think that maybe this language can be harmonized. What's your position? I would say that it can be harmonized, Your Honor. But it can. Yes, sir. And I would tell you why. If you look at cases that are kind of at the forefront of the intent or aware formulation, take for example the seventh circuit in Sains. When the court has actually rolled up sleeves and it's going through this, the court itself uses an intent formulation. It says we're trying to discern whether the defendant intended to communicate that this fellow was involved in torturing those prisoners, right? The court used that interchangeably and for good reason, Your Honor. When you get down into the nitty gritty of this and start to do this, the difference between knowing, between intending a meaning and publishing it. And speaking while in some sense knowing that that meaning could be conveyed is so fine, I don't think that a court of law can slice the slumy that thin and that when you do that it makes any difference at the end of the day. Is the New York Times versus Sullivan tests sufficient to deal with this or must be, it be expanded in some way to address the defamation by implication theory? I would say to you judge that it is sufficient, but this is another element of the analysis when you have an implication, a defamation by implication context. You have to do an additional bit of work to see that a defendant is not penalized for publishing a statement, admittedly, an implied statement of which they were not aware. Because that did feed the whole purpose of actual, actual mouse and the protections that were granted by the Supreme Court
. Green about. Once we're past this threshold independent review notion, what is the actual malice test here if this is a defamation by implication case? Right. You have to have, you have to have some evidence that the defendant intended or if you want the other formulation, the alternate formulation was intended or was aware of this implication. Because if you don't, you can't make out, you can't make out the actual malice there. And what the courts do, if you look at these cases carefully, courts, they articulate various phrasing of the test. Yeah, I would have handed it down carefully and I'm not sure I understand them or let's point out another way. I'm not sure I can synthesize them. There's, I read them in certain ways and think there may be a circuit split. And in other ways and think that maybe this language can be harmonized. What's your position? I would say that it can be harmonized, Your Honor. But it can. Yes, sir. And I would tell you why. If you look at cases that are kind of at the forefront of the intent or aware formulation, take for example the seventh circuit in Sains. When the court has actually rolled up sleeves and it's going through this, the court itself uses an intent formulation. It says we're trying to discern whether the defendant intended to communicate that this fellow was involved in torturing those prisoners, right? The court used that interchangeably and for good reason, Your Honor. When you get down into the nitty gritty of this and start to do this, the difference between knowing, between intending a meaning and publishing it. And speaking while in some sense knowing that that meaning could be conveyed is so fine, I don't think that a court of law can slice the slumy that thin and that when you do that it makes any difference at the end of the day. Is the New York Times versus Sullivan tests sufficient to deal with this or must be, it be expanded in some way to address the defamation by implication theory? I would say to you judge that it is sufficient, but this is another element of the analysis when you have an implication, a defamation by implication context. You have to do an additional bit of work to see that a defendant is not penalized for publishing a statement, admittedly, an implied statement of which they were not aware. Because that did feed the whole purpose of actual, actual mouse and the protections that were granted by the Supreme Court. Why couldn't it be inferred in this case by the jury that the reporter intended the reader to believe that Judge Kendo released Castillo despite knowing Castillo's criminal past and also inferred, the jury could have inferred that it would have been reasonable to expect the judge to have known about the man's background before he made a decision whether or not to release him. But why isn't all of that just a reasonable inference to draw from what the jury did here? Well, two things. One is if it's an inference, then you are fully capable going back to what we talked about an independent review to reassess that for yourself and draw your own inference on that score. The other thing is what evidence is there that Ms. Blackburn intended or was aware of that inference that you're saying the jury drew? I think the answer is that she wrote it to other times after she had already seen how the community responded to the first article. And they have given you an incorrect chronology which is critical to both the proper decision in this case and your understanding of that proper evidence. Well, but she was not present during the proceeding where the, where Mr. Castillo was released, correct? She was not. But she did go back and do some after the fact work, if I recall, checking records. She did. And she would have seen or did see the prior record document that was before Judge Kendall at the time he made his bail determination, right? She saw the memorandum, memorandum record of proceedings that reflected his bail decision. Your honors, here's the chronology. And this is so even if she didn't know, could she have been reckless, not to have pursued the matter more carefully, more extensively? Your honor, she, no, she was not, she clearly was not reckless. She wasn't writing about Judge Kendall where this case has gotten twisted and gone herring off into the weeds is this. Joy Blackburn, Judge Kendall releases Mr. Castillo and, but on this domestic violence chart, one month later, that man kills a little girl, which in this community is a big thing. I would say it's a big thing anywhere. I'm still not sure what that says, however. But I'm not sure. But it's clear that the reporter took in researching the matter at or after the time of the bail determination. Your honor, what she does is she comes to the advice or rights hearing before Judge Holler in April after the death of this little girl
. Why couldn't it be inferred in this case by the jury that the reporter intended the reader to believe that Judge Kendo released Castillo despite knowing Castillo's criminal past and also inferred, the jury could have inferred that it would have been reasonable to expect the judge to have known about the man's background before he made a decision whether or not to release him. But why isn't all of that just a reasonable inference to draw from what the jury did here? Well, two things. One is if it's an inference, then you are fully capable going back to what we talked about an independent review to reassess that for yourself and draw your own inference on that score. The other thing is what evidence is there that Ms. Blackburn intended or was aware of that inference that you're saying the jury drew? I think the answer is that she wrote it to other times after she had already seen how the community responded to the first article. And they have given you an incorrect chronology which is critical to both the proper decision in this case and your understanding of that proper evidence. Well, but she was not present during the proceeding where the, where Mr. Castillo was released, correct? She was not. But she did go back and do some after the fact work, if I recall, checking records. She did. And she would have seen or did see the prior record document that was before Judge Kendall at the time he made his bail determination, right? She saw the memorandum, memorandum record of proceedings that reflected his bail decision. Your honors, here's the chronology. And this is so even if she didn't know, could she have been reckless, not to have pursued the matter more carefully, more extensively? Your honor, she, no, she was not, she clearly was not reckless. She wasn't writing about Judge Kendall where this case has gotten twisted and gone herring off into the weeds is this. Joy Blackburn, Judge Kendall releases Mr. Castillo and, but on this domestic violence chart, one month later, that man kills a little girl, which in this community is a big thing. I would say it's a big thing anywhere. I'm still not sure what that says, however. But I'm not sure. But it's clear that the reporter took in researching the matter at or after the time of the bail determination. Your honor, what she does is she comes to the advice or rights hearing before Judge Holler in April after the death of this little girl. And what she's reporting on is this tragic murder. So she goes, she sees this man, she hears what's said in open court before Judge Holler, she talks about this fellow's history of violence. And his Blackburn faithfully goes and looks at all his criminal records. She knows is sure as she stands that this man indeed had a history of violence. One of the things she does is look at his priors. And she sees that a month prior, he was before Judge Kendall and Judge Kendall released him on reconnaissance. When she reports to the community, she's reporting the fact that Judge Kendall let this fellow out. That's why he's out. In terms of what was before Judge Kendall and all of that, and it wasn't her mindset at the time at all. She wasn't focused on that. She was trying to explain to people that he's out on the street because he was released on reconnaissance. And she knew to a moral certainty exactly what this fellow's criminal is. It's interesting though. And I read the article. He was out on reconnaissance. Nothing is said in the articles that I looked at about the fact that the prosecution was perfectly satisfied to let him out on a $500 ROR. But Judge Kendall is the focus of the stories. He really is not the focus of the story, John. He is not. If you look at the article. The article mentioned that the prosecutor didn't ask to have this dangerous person held pending trial
. And what she's reporting on is this tragic murder. So she goes, she sees this man, she hears what's said in open court before Judge Holler, she talks about this fellow's history of violence. And his Blackburn faithfully goes and looks at all his criminal records. She knows is sure as she stands that this man indeed had a history of violence. One of the things she does is look at his priors. And she sees that a month prior, he was before Judge Kendall and Judge Kendall released him on reconnaissance. When she reports to the community, she's reporting the fact that Judge Kendall let this fellow out. That's why he's out. In terms of what was before Judge Kendall and all of that, and it wasn't her mindset at the time at all. She wasn't focused on that. She was trying to explain to people that he's out on the street because he was released on reconnaissance. And she knew to a moral certainty exactly what this fellow's criminal is. It's interesting though. And I read the article. He was out on reconnaissance. Nothing is said in the articles that I looked at about the fact that the prosecution was perfectly satisfied to let him out on a $500 ROR. But Judge Kendall is the focus of the stories. He really is not the focus of the story, John. He is not. If you look at the article. The article mentioned that the prosecutor didn't ask to have this dangerous person held pending trial. That's what I'm saying, Your Honor. She wasn't down into the nuts and bolts of what went on before Judge Kendall. I'm not sure if that's a yes or a no. My question was, did the article mention that the prosecutor did not ask that this dangerous accused be held pending trial? Then how can you disagree with Judge Smith's statement that Judge Kendall was the focus of the article? And there was nary a mention of the prosecutor. What the focus of the article was, was that Castillo, this man who had this very long and sad history, killed this little girl, that was the focus of the article. The focus of the article was on the hearing that it took place before Judge Holler in April. Okay? It was not on, it wasn't down into the nitty gritty of what went on before Judge Kendall a month prior. And this is the critical part I told you earlier that responds to part of the core of the plaintiff's case. You need to understand the chronology because if you don't, you're going to go off the road. And that is this. The chronology of this simply does not work for the plaintiff. This blackburn first reported that Castillo was released despite a history of violence on April the 14th. That's immediately after the Judge Holler advised the court. This blackburn then speaks to Judge Kendall the next day on April the 15th. And Judge Kendall does not say he doesn't say to her, hey, I remember reading that. I don't know what difference that makes. The fact that he doesn't raise anything. I'll tell you why. What's the import of that here? What the import is? Whether or not she had actual mouths. I'll tell you precisely the import. He says then they've argued throughout this case
. That's what I'm saying, Your Honor. She wasn't down into the nuts and bolts of what went on before Judge Kendall. I'm not sure if that's a yes or a no. My question was, did the article mention that the prosecutor did not ask that this dangerous accused be held pending trial? Then how can you disagree with Judge Smith's statement that Judge Kendall was the focus of the article? And there was nary a mention of the prosecutor. What the focus of the article was, was that Castillo, this man who had this very long and sad history, killed this little girl, that was the focus of the article. The focus of the article was on the hearing that it took place before Judge Holler in April. Okay? It was not on, it wasn't down into the nitty gritty of what went on before Judge Kendall a month prior. And this is the critical part I told you earlier that responds to part of the core of the plaintiff's case. You need to understand the chronology because if you don't, you're going to go off the road. And that is this. The chronology of this simply does not work for the plaintiff. This blackburn first reported that Castillo was released despite a history of violence on April the 14th. That's immediately after the Judge Holler advised the court. This blackburn then speaks to Judge Kendall the next day on April the 15th. And Judge Kendall does not say he doesn't say to her, hey, I remember reading that. I don't know what difference that makes. The fact that he doesn't raise anything. I'll tell you why. What's the import of that here? What the import is? Whether or not she had actual mouths. I'll tell you precisely the import. He says then they've argued throughout this case. Well, Joy Blackburn didn't talk to anybody who was at the advice of rights hearing before Judge Kendall. You'll recall that. Didn't call the prosecutor, didn't call the defense lawyer, didn't get the transcript, didn't talk to anyone who was there. Well, guess what? That is not correct. She talked to Judge Kendall. She went to the horses mouth. Well, that doesn't help you for the April 14th article. It might help you for the ones that came after. Precisely. But follow this, Your Honor. So she talks to him on the 15th. She repeats. She doesn't have this state of mind, this knowledge, right? She publishes on the 16th the exact same phrase, theology that Judge Castile was released despite his history of violence. The protests that they keep talking about, there's a little slight hand here. The protests don't take place until the 23rd of April. And the other report doesn't take place until the 24th. So Ms. Blackburn cannot have this state of mind, this knowledge provided by the reaction of the protesters. She's published it twice with no protests taking place. Let me ask you quickly, if I may, with Sullivan, with respect to the Williams articles. Do I recall that the Supreme Court of the Virgin Islands addressed that issue as being one of literal truth that, in fact, Mr
. Well, Joy Blackburn didn't talk to anybody who was at the advice of rights hearing before Judge Kendall. You'll recall that. Didn't call the prosecutor, didn't call the defense lawyer, didn't get the transcript, didn't talk to anyone who was there. Well, guess what? That is not correct. She talked to Judge Kendall. She went to the horses mouth. Well, that doesn't help you for the April 14th article. It might help you for the ones that came after. Precisely. But follow this, Your Honor. So she talks to him on the 15th. She repeats. She doesn't have this state of mind, this knowledge, right? She publishes on the 16th the exact same phrase, theology that Judge Castile was released despite his history of violence. The protests that they keep talking about, there's a little slight hand here. The protests don't take place until the 23rd of April. And the other report doesn't take place until the 24th. So Ms. Blackburn cannot have this state of mind, this knowledge provided by the reaction of the protesters. She's published it twice with no protests taking place. Let me ask you quickly, if I may, with Sullivan, with respect to the Williams articles. Do I recall that the Supreme Court of the Virgin Islands addressed that issue as being one of literal truth that, in fact, Mr. Williams was released unsupervised and therefore there was no defamatory meaning? Among other things. I mean, you really have to scratch your head and wonder the area of dispute on that one. Judge Kendall himself concedes that when he went there the day of the standoff that this man was unsupervised, the fact that were this far along in the process, years and years fighting over the difference between his claim that he released Suspella on house arrest and that he released him unsupervised into the community. I mean, the distinction there is a fine one indeed. And with respect to the retirement article and the pending language, that is also the manner in which the V.I. Supreme Court addressed the issue. That is that literally they were true. That was true. Essentially, Your Honor, the thing there is on that retirement article, the very claim that they are complaining about, if a person reads the article, you'll see the full explanation and the notion that you can be defamed by a subheadline, I mean, you cannot, you can't sell that to anybody in modern defamation law. You know what I mean? That just doesn't hold water. All right. Thank you very much. Thank you, Solomon. We'll have Ms. Green back for the bottle. Ms. Green, if you assume for a minute that we view this as a defamation by Inuendo or implication case, what cases from either the Supreme Court or the United States courts of appeals can you cite for us where those appellate courts have upheld jury verdicts finding defamation by Inuendo or implication? Your Honor, I'd have to go back and think about the procedural posture of the case, but there's no question that there's a question. Well, the question was about a procedural posture actually, and that is what you've already got a jury verdict, right? I have to confess I'd have to. No, I don't want to hide my cards here. I'll show them to you
. Williams was released unsupervised and therefore there was no defamatory meaning? Among other things. I mean, you really have to scratch your head and wonder the area of dispute on that one. Judge Kendall himself concedes that when he went there the day of the standoff that this man was unsupervised, the fact that were this far along in the process, years and years fighting over the difference between his claim that he released Suspella on house arrest and that he released him unsupervised into the community. I mean, the distinction there is a fine one indeed. And with respect to the retirement article and the pending language, that is also the manner in which the V.I. Supreme Court addressed the issue. That is that literally they were true. That was true. Essentially, Your Honor, the thing there is on that retirement article, the very claim that they are complaining about, if a person reads the article, you'll see the full explanation and the notion that you can be defamed by a subheadline, I mean, you cannot, you can't sell that to anybody in modern defamation law. You know what I mean? That just doesn't hold water. All right. Thank you very much. Thank you, Solomon. We'll have Ms. Green back for the bottle. Ms. Green, if you assume for a minute that we view this as a defamation by Inuendo or implication case, what cases from either the Supreme Court or the United States courts of appeals can you cite for us where those appellate courts have upheld jury verdicts finding defamation by Inuendo or implication? Your Honor, I'd have to go back and think about the procedural posture of the case, but there's no question that there's a question. Well, the question was about a procedural posture actually, and that is what you've already got a jury verdict, right? I have to confess I'd have to. No, I don't want to hide my cards here. I'll show them to you. The reason I ask the question is, it seems to be a fairly unprecedented thing. If I remember correctly, it may have been one. Hardhanks may help you in that regard. If I remember correctly, but I'm going to last to think of any other case from the Supreme Court or any court of appeals that has ratified upheld, if you will, this type of verdict in a case. I put you to the Eastwood V National Inquirer case out of the Ninth Circuit, which I have to confess, I don't remember if it was after a jury verdict that made it in a summary judgment case. I have to tell you, these cases are very rare. It's very rare that they reach the Circuit Court. Why are they so rare? It's actually very rare that they even reach the Circuit Court. There are very few defamation cases at all in this circuit. There's really only a handful that posture of each case. One of them against the Virgin Islands, Daily News, one of our three cases. And that's a case very similar to this in which a reporter fabricated, I'm sorry, not a reporter, but the editor fabricated a statement that didn't appear that the source never gave her case very similar to the evidence in this case. The answer is there aren't that many cases that address this issue, but the Eastwood case I think is instructive, because it was a case where, like this, the National Inquirer had a blaring sort of headline front page statement exclusive interview with Clint Eastwood. And the question was, does that convey that the Clint Eastwood actually gave an interview to the National Inquirer, demeaning him in the eyes of his fans? And the Court had no trouble saying that could constitute actual analysis by Clint convincing evidence. And because there was evidence that the editors had actually considered the defamatory implications aware of the defamatory implications before they published, and they were not published anyway. And Judge Kuzinsky had no trouble recognizing that applying the Bose standard of review. He was particularly mindful of Bose's comment about the deference to jury findings, as I recall. But if it is so rare, though, that just seems to at the level of generality or the global level, the rarity of this type of case seems to run smack into your argument that it suffices to write something that could be deemed ambiguous or could be taken a couple different ways. And as long as the community reacts a certain way, then bingo, you've got sufficient evidence of defamation by Inuendo. What a return do I understand your position to be that this is not a defamation by Inuendo or defamation by application cases, you suggested her? No, I'm willing to assume I do, and it is a huge implication to address it. I think the rarity speaks only to the rarity of cases against public officials that make it to the appellate court level
. The reason I ask the question is, it seems to be a fairly unprecedented thing. If I remember correctly, it may have been one. Hardhanks may help you in that regard. If I remember correctly, but I'm going to last to think of any other case from the Supreme Court or any court of appeals that has ratified upheld, if you will, this type of verdict in a case. I put you to the Eastwood V National Inquirer case out of the Ninth Circuit, which I have to confess, I don't remember if it was after a jury verdict that made it in a summary judgment case. I have to tell you, these cases are very rare. It's very rare that they reach the Circuit Court. Why are they so rare? It's actually very rare that they even reach the Circuit Court. There are very few defamation cases at all in this circuit. There's really only a handful that posture of each case. One of them against the Virgin Islands, Daily News, one of our three cases. And that's a case very similar to this in which a reporter fabricated, I'm sorry, not a reporter, but the editor fabricated a statement that didn't appear that the source never gave her case very similar to the evidence in this case. The answer is there aren't that many cases that address this issue, but the Eastwood case I think is instructive, because it was a case where, like this, the National Inquirer had a blaring sort of headline front page statement exclusive interview with Clint Eastwood. And the question was, does that convey that the Clint Eastwood actually gave an interview to the National Inquirer, demeaning him in the eyes of his fans? And the Court had no trouble saying that could constitute actual analysis by Clint convincing evidence. And because there was evidence that the editors had actually considered the defamatory implications aware of the defamatory implications before they published, and they were not published anyway. And Judge Kuzinsky had no trouble recognizing that applying the Bose standard of review. He was particularly mindful of Bose's comment about the deference to jury findings, as I recall. But if it is so rare, though, that just seems to at the level of generality or the global level, the rarity of this type of case seems to run smack into your argument that it suffices to write something that could be deemed ambiguous or could be taken a couple different ways. And as long as the community reacts a certain way, then bingo, you've got sufficient evidence of defamation by Inuendo. What a return do I understand your position to be that this is not a defamation by Inuendo or defamation by application cases, you suggested her? No, I'm willing to assume I do, and it is a huge implication to address it. I think the rarity speaks only to the rarity of cases against public officials that make it to the appellate court level. There just aren't that many. It is a high standard, I recognize that. Judge Smith, I would also like to supply an answer to your question that you raised about whether Ms. Blackburn was reckless in reporting the way she did. And I wanted to just sketch out for you the evidence there, because she was reckless, and the jury was entitled to find that, and I think this court should be convinced of that as well as it reviews the evidence. So first of all, was there a general verdict here with her special and her argumentaries? General verdict. That's what I thought. So any one statement alone would be sufficient to support the jury verdict. So first of all, her chief defense trial was that her statement was accurate because she reported what was in the court record. But the evidence on what the court record shows was clear. There was only one single court record that showed what happened at that March 2nd bail hearing before Judge Kendall, the only hearing that Judge Kendall conducted relating to Mr. Castillo. And she admitted a trial that that rep memorandum record did not show that he released him despite a history of violence. But there's more than that. She actually held in her hands, and she admitted this also a trial, that she looked at the rap sheet that was before Judge Kendall, the March 2nd version of the rap sheet, which also showed no history of violence. It said there was a property charge, a property conviction, and then there was a rape charge that said no known disposition. That alone gave her substantial reason to doubt that there was any information about a history of violence before Judge Kendall. But there's more. She also knew from looking at the memorandum record of proceedings that Judge Kendall has made his decision based on representations that had been made to him during that proceedings. And she knew she didn't have those representations and she didn't know what that information was. There's more than that
. There just aren't that many. It is a high standard, I recognize that. Judge Smith, I would also like to supply an answer to your question that you raised about whether Ms. Blackburn was reckless in reporting the way she did. And I wanted to just sketch out for you the evidence there, because she was reckless, and the jury was entitled to find that, and I think this court should be convinced of that as well as it reviews the evidence. So first of all, was there a general verdict here with her special and her argumentaries? General verdict. That's what I thought. So any one statement alone would be sufficient to support the jury verdict. So first of all, her chief defense trial was that her statement was accurate because she reported what was in the court record. But the evidence on what the court record shows was clear. There was only one single court record that showed what happened at that March 2nd bail hearing before Judge Kendall, the only hearing that Judge Kendall conducted relating to Mr. Castillo. And she admitted a trial that that rep memorandum record did not show that he released him despite a history of violence. But there's more than that. She actually held in her hands, and she admitted this also a trial, that she looked at the rap sheet that was before Judge Kendall, the March 2nd version of the rap sheet, which also showed no history of violence. It said there was a property charge, a property conviction, and then there was a rape charge that said no known disposition. That alone gave her substantial reason to doubt that there was any information about a history of violence before Judge Kendall. But there's more. She also knew from looking at the memorandum record of proceedings that Judge Kendall has made his decision based on representations that had been made to him during that proceedings. And she knew she didn't have those representations and she didn't know what that information was. There's more than that. All right, you are, if you have a question. When did she meet with him after, how soon after the April 14th article did she meet with him? She called him up on a Sunday that had a conversation. There's evidence in the record about that conversation, but I can tell you how it went. Was that the next day? I'm sorry, the next station. Yeah, okay, so in that conversation, he quite spiritedly told her that he had no idea that this fellow had a history of violence. Is that what the record shows? I agree. He didn't tell her that. He didn't tell her that. No, he did not say that at that point. So we should we should affirm a large verdict against her for things she wrote after he didn't even feel the need to tell her that he was unaware of this fellow's history of violence. It's a piece of evidence in the case, but remember what Judge Kendall testified to was that he'd now been the victim of these attacks. The daily news had been attacking him, putting large pictures of him next to every defendant he released for years. He had given an interview to her in chambers years ago, in which he'd explained to her that he had to consider the particularized circumstances presented to him in the case. And the particularized circumstances would have included Castillo's entire criminal history. Should have, but in this case didn't. You know, there's no dispute that it didn't include that. And the she was aware from prior interviews that he had to consider all the facts and circumstances and make an individualized determination in every case, correct? Correct. So that would include that would include the rap sheet of every defendant who came before him before he made a decision on bail. Absolutely. And the rap sheet that she lived at she knew showed no history of violence. If there are no more questions
. No, we thank you very much. Thank you very much. And we thank both of counsel. The case was well-breathed, well argued. We will take the matter under advise. Thank you very much. Thank you very much