One more attempt to clear his name
Outside litigators argue unusual mock trial at Boalt Hall
| 16 April 2003
World War II veteran and former Nazi hunter Michel Thomas passionately defended his life, denouncing as “lies” a newspaper article he said had defamed him, at a mock trial at Boalt Hall earlier this month. The trial, sponsored by the School of Journalism and the Boalt Hall School of Law, pitted freedom of the press against a person’s right to preserve his good reputation.
The mock trial, argued by practicing attorneys, gave students a rare opportunity to watch professional litigitors in action, said law professor emeritus Robert Cole, who coordinated the event. Students argue most mock trials at Boalt, because busy schedules usually keep working lawyers from participating. Cole stressed that neither Boalt nor journalism faculty advocated for one side or the other, but presented the trial only as an educational experience for students.
The event was more than that for Thomas — it was his first chance to tell his story in a public forum. He had filed a defamation suit against the Los Angeles Times when it printed a skeptical article about his life in 2001. Times reporter Roy Rivenburg decided to investigate Thomas’ life after reading a copy of his 2000 biography, Test of Courage. A district-court judge dismissed Thomas’ complaint before it ever came to trial, a decision affirmed by the 9th Circuit Court of Appeals. Following those setbacks, Thomas suggested that his lawyer, Anthony Glassman, approach his alma mater, Boalt Hall, about holding a mock trial. Because the Los Angeles Times declined to participate, Glassman said, he invited John Bartko, a San Francisco trial attorney and another Boalt alumnus, to fill in as the newspaper’s representative.
Stretching the truth?
Thomas’ statements at the mock trial reiterated much of what he had previously said publicly about his life. He recounted escaping from a concentration camp in Vichy France to join the French Resistance, and working as an official agent of the U.S. Army Counter Intelligence Corps (CIC) during the war. While an agent, Thomas said, he arrested several notorious war criminals, including Emil Mahl, the “Hangman of Dachau.” Thomas also claimed to have discovered a stockpile of Nazi documents at a Munich paper mill that included the names of ten million Nazi Party members.
In his article, Times reporter Roy Rivenburg implied that Thomas had exaggerated his wartime accomplishments, was not an official CIC agent, and was not the discoverer of the paper-mill cache. Rivenburg pointed to contradictions between Thomas’ stories and the accounts of events provided by other first-hand witnesses, although he refrained from endorsing either set of statements as true.
For example, Rivenburg cited an alternative version of the paper-mill story, attributed to a German journalist working for the U.S. Army during the war, that said it had been the the mill’s owner, rather than Thomas, who brought the documents — “a wood cabinet full of Nazi membership cards,” as Rivenburg wrote — to the army’s attention.
According to mock-trial witness Robert Wolfe, a former National Archives expert on captured German documents, these documents greatly contributed to the successful denazification of postwar Germany. Wolfe also testified that Thomas had shown him unique documents, taken as souvenirs from the paper mill, that convinced him Thomas was telling the truth about discovering the cache.
Glassman, advocating for Thomas, tried to show that Rivenburg deliberately ignored evidence that corroborated Thomas’ stories.
“Rivenburg went to authority figures, people who knew about World War II but didn’t know anything about Thomas,” Glassman told the mock court. “He gave them partial information and misquoted things that Thomas allegedly said to him, in an effort to get quotations that would undermine Thomas’ credentials.”
Glassman noted that, although Thomas provided Rivenburg with names and contact information for people who could vouch for his stories, Rivenburg did not quote any of these people in his final article.
In response, Bartko, while acknowledging that Rivenburg did interview the sources suggested by Thomas, maintained that reporters have no obligation to use all the information they receive.
“A court holds a microscope to an issue and tries to discover the facts at great time and expense,” said Bartko. “I suggest that’s not the standard journalists should have to meet. If they were held to that standard, the Los Angeles Times would be a phonebook every day of the week.”
On the cutting edge of the law
The mock trial did not include a verdict, but two expert commentators, journalism lecturer Bill Turner and law professor Stephen Barnett, were asked to speak about the case. One of the key issues for the commentators was whether a newspaper article could be considered defamatory if it only implied a person was lying rather than stating it outright.
“The odd thing that gave this case a sense of otherworldliness was that there was no contention [by Thomas] that any statement in the article was wrong,” said Turner. “Most libel cases are about the truth, while this trial was about language and how it was used rather than what happened. This is a very hard, close case on the cutting edge of the law.”
The Supreme Court has held that public figures, to win a defamation suit, must prove a newspaper published an article with “constitutional malice.” This standard requires either that the defamation be intentional or that the article show a “reckless disregard for the truth.”
Although Turner said he was sympathetic to Thomas’ claims, he agreed with the original court’s decision to throw out Thomas’s complaint, noting that it had no chance of success because courts have held that implications cannot defame. Barnett, meanwhile, while expressing the belief that implications can be defamatory in some contexts, still thought that Rivenburg’s article qualified as protected speech.
“Just as the legal system benefits from an adversary approach, so does journalism,” said Barnett. “Taking celebrities down is a legitimate thing for the press to do. There can’t be a purposeful avoidance of the truth, but I wouldn’t go so far as to say that there couldn’t be defamation by implication. I think Thomas was treated unfairly, but I don’t think this can be remedied without the legal standard necessary to protect this genre of journalism from being severely undermined. Thomas has to be regarded as a sacrificial lamb on the altar of free speech.”
These opinions were of little consolation to Thomas, who said he would continue to pursue his case to the Supreme Court, if necessary. “I’ve never been a lamb,” he said, “and I won’t be one now.”
The commentators based their opinions partly on their judgments about whether the article would cause the “reasonable reader” to conclude that Thomas was a liar. (The district-court judge had written in dismissing Thomas’ complaint that a “reasonable reader or juror might conclude, after reading the article…, that Thomas had in fact lied about his past.”) This prompted Chris Bagley, a first-year journalism student in the audience, to call for a show of hands to demonstrate how many audience members would be skeptical of Thomas’ claims after reading the article.
Nearly everyone’s hand went up in response.
Michael Rosen-Molina is a graduate student at both the School of Journalism and the School of Law.