Judge Allows Slander Lawsuit Against Nancy Grace

Michael Skakel, a Kennedy cousin, is suing the talk show host and Time Warner over a statement that his DNA evidence was found at the scene of a famous 1975 murder.
Amy Graves
Nancy Grace

A high-profile, four-decade-old murder mystery took its latest turn Friday, when a federal judge in Connecticut refused to dismiss defamation claims made against Nancy Grace, legal commentator Beth Karas and Time Warner Inc.

The individual suing the talk show host is Michael Skakel, nephew of Robert F. Kennedy.

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Skakel has been suspected of the 1975 killing of 15-year-old Martha Moxley, and after 11 years in prison following a 2002 conviction, was freed from prison in November to await a possible retrial.

Grace has covered the Skakel trial for a long time and, after a hearing last January where Skakel argued his sentence was wrongful, interviewed Karas about the case.

On her HLN show, Grace asked, "Isn't it true that the Kennedy cousin apparently was up in a tree masturbating trying to look into [Moxley's] bedroom window?"

Karas responded: "Well, his DNA was found, yes ... up in the tree."

"Beth, I love the way you put it so delicately," Grace then said. "'His DNA, you know, it was sperm. There, I said it, and so he places himself there up in a tree masturbating looking down at her window, and, whoa, she [Moxley] turns up dead within a couple of hours."

The comments brought various defamation claims from Skakel, who maintained that the TV talk show had hurt his reputation and diminished the possibility he'd reverse his conviction or get a new trial with an untainted jury pool. Further, he said he had suffered shame, scorn, ridicule, hatred and more.

Skakel's 2002 trial didn't discuss any DNA evidence found at the crime scene.

Nevertheless, the defendants contended that Grace's and Karas's statements were "substantially true," that the crux of what they were trying to say was that Skakel masturbated outside of Moxley's window the night of the murder, so his DNA was necessarily at the scene.

That's not good enough for dismissal, says U.S. District Judge Vanessa Bryant in her ruling (read in full here).

Grace, Karas and Time Warner might be able to make the substantial truth defense at trial, but at this stage of the litigation, Judge Bryant must accept Kakel's allegations that the statements are prima facie false.

The next big question in the case could be whether Skakel is a public figure.

It's been exactly 50 years since the Supreme Court ruled in New York Times Co. v. Sullivan that public figures must show actual malice to prevail in defamation lawsuits. Since then, there's been further developments in defamation law, including the less understood but fairly important application of the subsidiary meaning doctrine, which holds that a particular statement is not actionable if it is an outgrowth in meaning to other nonactionable statements. The doctrine only applies to public figure plaintiffs.

Judge Bryant says she is not ready to conclude one way or another whether Skakel is a public figure. However, she notes that the Supreme Court has rejected the contention that a person who engages in criminal conduct automatically becomes a public figure. Even if Skakel is deemed to be one, the judge goes on to say she "cannot at this juncture conclude that the implication that hard DNA evidence underscored Skakel's murder conviction when no such evidence existed is simply subsidiary to the larger implication that he was, indeed, convicted of murder."

"While Skakel was convicted of murder, he was allegedly so convicted absent any DNA evidence linking him to the crime," continues the judge. "Grace's and Karas's comments are not merely a gloss on Skakel's conviction; their statements imply that hard, unfeeling, scientific and direct evidence linked Skakel to the scene and conclusively corroborated his guilt, when such scientific certainty did not exist."

Nov. 3, 2:39 p.m. An earlier version of this story used a quote from Judge Bryant that was likely a misstatement by the judge. The quote has been removed.  

E-mail: Eriq.Gardner@THR.com
Twitter: @eriqgardner