It’s understandable that a jury sympathized with Roger Valadez. Two years ago, KSN-TV, Channel 3, named Valadez as a suspect in the BTK investigation. But it’s likely that an appeals court will overturn the jury’s decision on Friday that KSN should pay Valadez $1.1 million for outrageous conduct and defamation. The fact is that KSN reported the truth: Valadez was a suspect in the case.
Posted by Phillip Brownlee
22 Comments
I read the verdict at being $800,000 for outrageous conduct; $300,000 for defamation.
Truth is a defense to defamation; however, the tort of outrageous conduct is another matter. The jury may have determined the outrageous conduct was not the identification of Mr. Valadez as a suspect, but rather the continued linking of his name with the case after the authorities had reason to believe he was not. As one who doesn’t pay attention to KSN, I don’t know the chronology of the reports. I don’t know whether KSN took any steps to publicly correct its reporting later.
I also do not make it a practice to guess what an appellate court might do. However, just for funsies, I guess the Court of Appeals will reverse the defamation judgment, and modify the damages for outrageous conduct. No warranties, express or implied, on the guess.
A difficult matter. The police didn’t have “probable cause” against Valadez. They could not have possibly had probable cause, because the killer was found, and he admitted the murders, and that person was not Valadez. You can have “probable cause” and not be able to prove it beyond a reasonable doubt, but you can’t have “probable cause” against a totally innocent person.
You can THINK you do, but you’re wrong. So if a totally innocent person is arrested, and besmirched by public false-information dissemination, somebody has to recompense the falsely accused.
The reality was, hundreds, if not thousands of Wichitans were qualified to be “suspects” in the BTK murders. The police made an error in holding Valadez on misdemeanor charges, to test his DNA as a BTK suspect, and then reporting this baseless suspicion to KSN. Perhaps we citizens need to recompense Mr. Valadez. Or it may be that KSN needs to recompense him for using him to boost ratings, because they didn’t do investigative reporting to find out the WPD’s justification for considering Mr. Valadez a “suspect”. Obviously, the WPD screwed up and KSN screwed up.
After KSN reported that Mr. Valadez was a suspect, once he was cleared, did it report this as soon as it found out? Did it broadcast a correction and apology? You have to do that under defamation law.
The real tort here arguably was law-enforcement’s probing a suspicion, that in retrospect had no substantive grounds, and feeding the media a “snack”.
So I don’t think that Phil is saying Mr. Valadez deserves no compensation, but Phil has not said WHO must make compensation. Is it the WPD, i.e. WICHITA TAXPAYERS? Because, I don’t think that Phil is saying that one of the least among us, Mr. Valadez, just has to accept being beaten down on false charges, without just compensation. To say, “Well he was a suspect,” isn’t enough, because there were no valid grounds to believe this, let alone publicize this, because he was every bit as innocent as Phil.
KSN needs to be dope-slapped hard. Sloppy, sloppy (I would say journalism, but I refuse to call what the TV twiks put out journalism) work.
Heartlander:
I’ll leave it to Vaughn to speculate as to what might happen as to the appeal in a civil matter; he probably has more insight and experience than I in that area.
But your statement that . . .
“You can have “probable cause” and not be able to prove it beyond a reasonable doubt, but you can’t have “probable cause” against a totally innocent person.”
. . . is absolutely wrong as a matter of law. PC to arrest is enough evidence that would cause a reasonable officer to have a belief that a person committed an offense. PC for arrest is less than PC for purposes of going to trial, such as is determined by a preliminary hearing, and may not even include evidence as to each and every element of the offense.
An officer CAN have PC and be ultimately wrong about a suspect. And in doing so, if the officer has acted reasonably, that officer has done NOTHING wrong or improper. I haven’t followed all the details in the Valadez matter, but presuming there was enough PC to justify an arrest, WPD should be safe from suit, even tough the real perp was later determined.
Injustice it may have been, but not every bad event requires recompence. Valadez, it appears, is simply attempting in this suit to cash what he sees as a lottery ticket. Sorry, not every bad event is someone’s fault and recoverable.
Sorry for the triple post; had a network issue here, and couldn’t get to the blog to see if the first post had gone through; didn’t know it had gone through 3 times!
Heartlander: GMC is right on the PC issue; it would be my thought that WPD likely has no liability. GMC also raises the point that one might “injured” but does not suffer damage; this might apply in this case, too, depending upon the decision of the Court of Appeals.
GMC, from memory; the initial police intrusion into Mr. Valadez’ residence was via a bench warrant for failure to appear on 3 environmental complaints; I believe that a search warrant was issued under the premise of that case, as well as on PC based upon an anonymous tip received by WPD from a caller in light of new information furnished by a profiler/BTK himself. Thus, my agreement that WPD is clear from liability.
Jeff, I suspect the police had a warrant to allow them to take a sample for DNA testing purposes; thus, even if Mr. Valadez would have “lawyered up”, the DNA test would have occurred. As to your conclusion, I don’t know that I agree. Mr. Rader’s ego apparently got the best of him, combined with a lack of knowledge of how operating systems and computer files work.
“Valadez should be compensated something, by someone.”
Why? He didn’t stumble upon a winning lottery ticket. Why do we seem to think that a bad thing happening must be someone’s fault, and we should be compensated?
Will the appellate court court reverse or diminish the defamation award to Mr. Valadez? Probably. Should they? Probably not. The irresponsibility of KSN will ultimately be shifted to the WPD, and, in the end, the taxpayers will get to pick up the tab for the settlement … the terms of which will remain confidential.
Am I correct in understanding that KSN is being penalized for reporting something that is public information? Arrest records are, by law, public information.
Seems like someone is trying to get rich….
Speaking of verdicts Skilling getting 24 yrs., Lay got off light!
If my memory serves me right Mr. Valadez was never arrested for anything that has to do with BTK. He was arrested on outstanding misdemeanor warrants.
Was KSN responsible in its reporting of the story? No. Should they have to pay for hiding behind the first amendment? Yes. I think that the people who call themselves journalists seem to forget the two most important rules of journalism.
1. Newsworthy. Is the story newsworthy. If you are trying to sell newspapers, everything is newsworthy.
2. Unbiased. The story must be presented in an unbiased manner.
Was the story presented biased in any way towards Mr. Valadez? You bet. Unfortunately you can’t sue someone for failing Journalism 101.
Well, for those not entirely familiar. BTK haunted this town for more than 25 YEARS. I grew up with the nervously repeated phrase, “Ya know they never caught BTK.”
Put yourself in Valadez’z shoes.
In my travels across town, I drive by this mans house several times a week. To THIS DAY I can’t do so without remembering the day that it became (for just a little while) the lair of BTK.Multiply me by several hundred or thousands of other people. Start to get the idea?
How much more horrible it must be for Valadez.
KSN named him as a BTK suspect more than 30 times! Sure it was ultimately cleared up. But can you even imagine yourself named even for a little while as the man behind the monster?
Valadez deserves more than “oops”. He deserves some compensation and the chance to put a horrible mistake HE never made behind him.
Point of curiousity. Did KSN or the WPD even offer him a settlement? Hey I’m not for the guy winning the lottery for this but sheesh he deserves something!
Jeff, no, doesn’t need to be unanimous. According to the article, a juror became ill during the deliberations, I think, both sides agreed to go forward with 11, needed 9 to agree. This is civil court, not criminal, so nonunanimous verdicts are permitted, if both sides agree. I’m not a litigator, so someone who is, chime in if I’m incorrect about agreement, i.e., are nonunanimous verdicts the rule, not the exception.
On defamation, the U.S. Supreme Court established in NY Times v. Sullivan, and subsequent cases, that freedom of the press must be balanced against people’s rights to their reputations. For public figures who are falsely portrayed in a denigrating light that injures their reputations, plaintiffs can only prevail upon showing that defendants demonstrate willfull or reckless disregard for the truth. This is defamation law’s version of malice. Private citizens who are not known by the public but who are falsely put in a bad light before the public, have stronger protections, in that they don’t have to establish reckless disregard for the truth, they only have to show that information promulgated was false and injurious to their reputations.
Reporting that someone is arrested, as a true fact, isn’t actionable, even if the person is later released for insufficient evidence, or found innocent at trial.
In this case there are really two key issues. On, Mr. Valadez wasn’t arrested for committing the serial killings, but rather on misdemeanor counts, so unless he made some self-incriminating BTK-related statements to the police while under arrest, there was no probable cause regarding his involvement in the BTK case to enable the police to keep him in jail, and indeed it was stated by the Eagle (see Phil’s link) that Mr. Valadez was detained under the misdemeanor charges.
With respect to the matter of probable cause at arrest, or subsequently, the police have to file a charge, which they did not do.
So if the police originally had a strong suspicion (probable cause) that Mr. Valadez committed the murders before they arrested him, they surely wouldn’t have used misdemeanor charges as a pretext to apprehend and detain him; that would have been procedurally unsound. (”This guy looks like the killer, we have probable cause to take him in, so let’s arrest him on misdemeanor charges.” That’s absurd.)
If the police had a BTK-killer profile that after his arrest Mr. Valadez seemed to fit, and this fact moved the police to test his DNA, that procedure shouldn’t have necessarily been made public, because at that point the police were on a “fishing expedition”. The DNA evidence was expected to either incriminate or exonerate Mr. Valadez in less than 24 hours, and he was not actually being detained as a murder suspect, but rather as a misdemeanor-committer, so holding the information from the press for 24 hours would have been appropriate.
Finally, if KSN initially reported this event, and then if the station televised reports on Mr. Valadez’s exoneration as soon as the DNA information became available, which the police were obligated to release just as quickly as releasing the report that they had a suspect they were testing, then KSN arguably would have no liability.
Apparently, however the station didn’t act as quickly to clear Mr. Valadez’s name as it did to tarnish him. In essence the station apparently jumped on a hot juicy story, but when it fizzled, Mr. Valadez’s reputation was in tatters, but the station apparently didn’t care, nor did it care that it had put his reputation in tatters. That’s actionable. This is why at least 9 of 11 jurors found for Mr. Valadez, and a judge endorsed the verdict and award. To wit, the judge and jury found that KSN did something other than merely report the facts in good faith and in service to the community, which includes Mr. Valadez.
The First Amendment’s freedom of the press requires the exercise of responsibility. If media do not exercise responsibility, the First Amendment itself can be seriously damaged.
Heart, you’re wrong re: using misdemeanor charges to pick Mr. Valadez up in the first place. As GMC will tell you, if there’s an outstanding bench warrant, that’s all that’s needed for an arrest. We can argue about the rest of your analysis, some of which is spot on, but, you are in error concerning the arrest.
During that evening of Mr. Valadez’s arrest, I recall all Wichita TV stations, radio stations, print reporters and lots of general public members were outside the house of Mr. Valadez. Wichitans had good reason to hope the Wichita Police had found BTK. I would hate to see this jury award chill future investigations of similar crimes by Wichita police.
During the investigation of the BTK case, I believe one of the major errors was keeping information under wraps. If the public had been better informed of clues in the case, the case might have been solved years earlier.
This jury award, if not overturned, might have a hugely detrimental effect on the safety of Wichita citizens.
JWink, how, pray tell, will a verdict against a local television station have a “hugely detrimental effect on the safety of Wichita citizens” if not overturned? There was no litigation against the WPD; the jury returned no verdict against the WPD; I guess I don’t follow your thinking,here. Could you please explain?
With respect to the keeping of information under wraps; given Mr. Rader’s penchant for publicity, this may well have hastened the end of the case, or it may have encouraged him to commit more crimes.
Vaughn, of course the police can suspect someone but lack enough evidence to establish probable cause, and use arrest and detention on unrelated charges in hope of getting more information from a suspect that may establish probable cause to file a charge for the crime that the police are REALLY interested in. For example, somebody allegedly made a statement to the WPD that the WPD accepted as sufficiently possibly (not probably) credible to make the WPD want to interrogate and DNA-test Mr. Valedez.
But the statement was insufficient for the police to establish probable cause for murder, which is why the WPD didn’t arrest Mr. Valedez for murder. But the WPD never got corroborating information to the private citizen’s statement, which is why no preliminary murder charge was filed by the WPD. So they were on a fishing expedition. It would be interesting to know what the private citizen’s statement was, wouldn’t it? Maybe it was factually correct, maybe bogus. Mr. Valedez didn’t sue the private citizen. This isn’t necessarily because the private citizen didn’t have deep pockets or make a false statement. It may be because there is statutory privilege for statements made in official proceedings in most states (Kansas too?). Some states confer this privilege. If somebody WILLFULLY makes false statements to authorities, they can be prosecuted for such under criminal statutes, but not be sued by persons they have accused. In any case, our leading public reporter of record, the Eagle hasn’t dug into this matter.
Now, because the police detained Mr. Valadez on a valid arrest warrant, of course the police had the opportunity to probe Mr. Valedez, both through interrogation and medical testing (I imagine that he voluntarily submitted to both of these, knowing that he was innocent.)
Defamation is interesting. If an affluent person who had top-notch legal representation had been reported by KSN to be a suspect, he/his counsel would have demanded that KSN report his exoneration at the same level the suspect-indentification was reported, i.e. if the original was a lead story, the latter would also have to be reported as a lead story. But Mr. Valedez was not an affluent person.
If a story is reported in good faith by the media, but a suspect is exonerated, yet the latter is not reported in a timely manner, is this defamation? One can argue it is. The original reporting was not, but leaving the story out there without reporting the exoneration can be construed as defamation, if the result is that the person named is tarnished, but the agent that publicized information, doesn’t publicize the eventual exoneration in order to inform the public that the suspect has been found to be innocent. Again, a wealthy, well-represented individual would have forced KSN to broadcast this report.
But in any case, if one does not accept this principle, the outrageous conduct finding covers it.
It is also notable that none of the other local media companies was sued. This indicates that KSN did something different from the other companies.
jeff beck:
“Why do we seem to think that a bad thing happening must be someone’s fault, and we should be compensated?Yeah, I saw that exact statement on Judge Judy yesterday. BUSTED!”
What does that mean? Do you sit around and watch Judge Judy? I don’t. I think such a statement is common sense. Not all bad events are are actionable; nor do we want them to be. This appears to be one of those times. KSN reported the news, perhaps badly. But it was news. As I said, I’ll leave to Vaughn the civil analysis.
Beyond that, I don’t think I’ve got anything to add to what Vaughn’s said. He’s spot on, as usual.
Facts :
WPD listed him as a suspect and released this to the media.
KSN chose to broadcast this information which is their right.
DONE, no long discussion needed. An apology from the WPD and KSN is all he is due.
Heartlander, IIRC, the original litigation was filed against three defendants: KSNW, KAKE, and KFDI; KAKE and KFDI were later dismissed from the suit.
As to your point on defamation vs. outrageous conduct; I was not at trial, did not hear the testimony, etc., but the jury felt that KSNW had indeed done something compensable; $800,000 for outrage, $300,000 for defamation. I do not think the defamation judgment will stand; the outrageous conduct is another matter.
Yes, defamation is an interesting tort; the New York Times v. Sullivan case and its progeny have created an intricate maze to be followed by an individual who believes he has been defamed to seek judicial redress for the apparent “wrong”. This is why I commend Mr. Valadez’ counsel for pursuing the outrage claim, separate and apart from defamation. The appellate courts will tell us if this was appropriate.
Heartlander, IIRC, the original litigation was filed against three defendants: KSNW, KAKE, and KFDI; KAKE and KFDI were later dismissed from the suit.
As to your point on defamation vs. outrageous conduct; I was not at trial, did not hear the testimony, etc., but the jury felt that KSNW had indeed done something compensable; $800,000 for outrage, $300,000 for defamation. I do not think the defamation judgment will stand; the outrageous conduct is another matter.
Yes, defamation is an interesting tort; the New York Times v. Sullivan case and its progeny have created an intricate maze to be followed by an individual who believes he has been defamed to seek judicial redress for the apparent “wrong”. This is why I commend Mr. Valadez’ counsel for pursuing the outrage claim, separate and apart from defamation. The appellate courts will tell us if this was appropriate.