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Her son died in Montgomery County,” intones WJLA-TV Channel 7’s deep-voiced announcer. A somber middle-age woman appears on the television screen.
“Was it suicide?” the announcer asks. The camera cuts to a darkroom. A ghostly hand switches on a red light, illuminating a shadowy photograph: a young man named Keith Warren hanging dead from a tree.
As the announcer completes the question, the shot switches to a black-and-white photograph of another young man. This man stands bare-chested, his muscular arms crossed. The camera jumps to a second, tighter close-up on the man. And then to a third close-up. For less than a second the man’s face dominates the screen, his features slightly unfocused but sharp enough to be recognized.
“The I-Team’s Del Walters investigates Monday.” The camera returns to the darkroom, showing Channel 7 reporter Walters examining the photos.
Channel 7’s promotional spot for its November 1992 report on the 1986 hanging death of Warren featured everything a news producer could want: tension, crime, and great visuals. But according to Eyal A.Doron, the promo had one problem: He was the man captured three times by WJLA’s camera, and he had nothing to do with Warren’s death.
Now Doron is suing WJLA-TV and its owner, Allbritton Communications Co., for $7 million, charging defamation, invasion of privacy, intentional infliction of emotional injury, negligence, and gross negligence.
When police photographed Warren’s body seven years ago, Doron, a friend of the person who found the body, appeared in the background of one of the pictures, according to Doron’s lawyer, Robert Cadeaux. Six years later, when WJLA-TV ran the promo advertising its investigation into Warren’s death, the station focused on Doron’s image, isolating him so that it was not apparent that he was a bystander at the police investigation and coupling the close-ups on him with the accusatory “or murder?” of the voice-over, Cadeaux says.
According to Doron’s complaint, filed Aug. 11 in the U.S. District Court for the District of Columbia, the “malicious use and publication of plaintiff’s picture by the defendant was intended to convey, and did convey, to defendant’s audience the impression that plaintiff was involved in and/or under suspicion of and/or guilty of having murdered Mr. Warren.”
The broadcast of the promotion “placed Doron in a bad light in the community, and held him up for public ridicule, disgrace, and embarrassment,” the complaint states.
“The thing was mean,” says Cadeaux. “You see a terrible thing—a young, handsome man hanging—and then you see a picture of a young, shirtless guy with long hair, and you see the camera closing in on [Doron], and you hear the voice-over.”Cadeaux says that WJLA’s broadcast “murdered” Doron.
Doron declined to be interviewed for this story. Cadeaux answered preliminary questions about the case, but after Doron decided not to be interviewed, refused to respond further.
Gary Wordlaw, WJLA’s news director, also would not comment, referring all questions on the case to Jerald Fritz, Allbritton’s vice president for legal affairs. Fritz also refused to speak about the litigation. In its Sept. 10 answer to the complaint, WJLA denied Doron’s allegations without elaboration.
Doron is suing WJLA because, for one moment, his life intersected Keith Warren’s death. In July 1986, Warren, a 19-year-old black man with a history of depression, was found hanged from a tree in Silver Spring woods. Police investigated, photographed the scene of the hanging, quickly ruled the death a suicide, and closed the case. But Warren’s mother, Mary Couey, believed the police botched the investigation and that her son was killed.
In April 1992, something happened to intensify Couey’s suspicions. According to WJLA’s broadcast, an anonymous package containing the police photos of the hanging scene appeared on Couey’s doorstep. Three months later, Couey hired an attorney and private investigator to probe her son’s death. The investigator, Joe Alercia, examined the position of the body in the photographs, consulted with outside pathologists, and concluded that Warren might have been murdered.
In November 1992, WJLA aired two news reports based on the I-Team investigation. Relying heavily on the photographs and interviews with Couey and her investigator, both reports suggested that, at the very least, county police conducted a shoddy, incomplete investigation, and that, at most, Warren may have been murdered—perhaps, as his mother suspected, lynched because he dated white women. WJLA won a Capitol Region Emmy Award for the investigative series in June 1993.
Unlike the promo, neither of the actual reports showed Doron’s face. In one report, the camera pans slowly and dramatically across the police photographs, and when Doron appears, his face, like the dead man’s, is rendered unrecognizable by digital mosaic. In this report, Walters says that if Warren was murdered, “whoever committed the murder may still be at large.” Walters does not mention the person who appeared in the background of the photographs.
In the other report, WJLA again scrambles Doron’s face, but reporter Walters also tells viewers twice that the man appearing in the background of the photo was not involved with the case. Walters explains that “another person could be seen in the background. Police say he was a friend of the person who found the body.” Then, at the end of the report, Walters also says, “The man standing in the background, police tell us, had no bearing on the case.”
Doron, Cadeaux says, saw the promo for the I-Team investigation on Nov. 13, 1992, and complained to the station. Because neither WJLA nor the plaintiff will comment on the case, it is unclear whether WJLA withdrew the promo or changed the content of the report—by adding the “innocent bystander” comments, for example—following Doron’s call to the station.
According to Cadeaux, earlier this year WJLA responded to a letter from Doron’s lawyers by specifically refuting his allegations. In WJLA’s reply, Cadeaux says, the station stated that it was impossible to identify Doron in the promotional spot; that nowhere on any of WJLA’s broadcasts was anyone accused of murder; and that the audio of the story made it clear that Doron was not involved in the case.
In a case of implied defamation—where the defamation arises from the juxtaposition of image and word without explicit allegations—“there’s no clear rule” about what is punishable, says Chad Milton, vice president and assistant general counsel at Media/Professional Insurance, the largest provider of libel insurance for the media. Plaintiffs in defamation cases have to show that a broadcast was false and that it caused real damage. What that means is nebulous.
In a case like this, Milton says, judges and juries consider such indefinite factors as what conduct the person is being associated with, “how much a person is featured, [and] whether or not the person seems to have been singled out.”
Cadeaux—perhaps needless to say—believes Doron is marshaling a strong claim against the station. “He was just a spectator,” says Cadeaux. “He feels like he’s been laid bare. Anybody that saw that and knew him would have that fact burned in their mind.”
However, the D.C. Circuit Court of Appeals decision in White vs. Fraternal Order of Police may create additional difficulties for Doron. The court held that in cases of implied defamation the plaintiff not only has to show that viewers could draw a defamatory inference, but also must provide “evidence suggesting that the defendant intends or endorses the defamatory inference.”
Libel defense attorney James Grossberg says that WJLA, mindful of that precedent, may argue that the two reports—which never name Doron or implicate him in any crime—demonstrate that the station had no intent to harm Doron. The defense, he says, is likely to counter by saying that the perception of viewers outweighs the station’s alleged intent.
Even if the case is tried and a jury rules against WJLA, Doron would be a long way from collecting the $7 million he’s requesting. According to the Libel Defense Resource Center in New York, of 167 initial awards to libel plaintiffs in the ’80s, only 58 resulted in payment to the plaintiff after appeals. And of $231 million initially awarded by juries in libel actions in that decade, only $17 million were actually paid to plaintiffs.
But Doron can point to one precedent. WJLA-TV lost a similar defamation case before. According to Barbara Dill’s The Journalist’s Handbook on Libel and Privacy, during a 1982 WJLA broadcast about genital herpes, the station showed a close-up of a woman on a Washington street while the announcer said there was no cure for those afflicted with the disease. The woman, Linda Duncan, sued WJLA, claiming that the broadcast made acquaintances suspect she had herpes and caused co-workers to make crude jokes to her. Duncan won, but the jury awarded her only $750 in damages, rather than the $50,000 she wanted.