“A Pardon Cannot … Change the Underlying Facts and Truth” for Purposes of a Defamation Action

From DeBarros v. Pedbereznak, decided last Friday by Connecticut Superior Court Judge John Cordani:

The plaintiff in this matter, Jonathan De Barros, was a candidate in the Republican primary associated with the upcoming election for the U.S. Congressional Fifth District seat in Connecticut. The plaintiff has brought claims for … defamation, negligent infliction of emotional distress, and intentional infliction of emotional distress …. All of the claims arise out of communications [during the campaign] by the defendants concerning a 1996 incident involving the plaintiff in which one man was killed and another was severely wounded….

On October 13, 1996, the plaintiff shot Jermaine Lewis several times and killed him. At the same time, the plaintiff, using a second gun, also shot Scott Nash several times and severely wounded him. As a result of the foregoing, the plaintiff was charged with murder, attempt to commit murder, and first degree assault with a firearm. At trial, although the plaintiff raised self defense as a defense to the charges, the plaintiff was convicted of all the charged offenses including murder in a jury trial and was sentenced to life in prison.

The plaintiff appealed the conviction and the Appellate Court ordered a new trial [link added -EV]. The second trial resulted in a hung jury. The plaintiff then entered into a plea deal, pled to manslaughter and served a lengthy but reduced prison term. In 2022, the plaintiff was pardoned….

The plaintiff complains that Salamone {a delegate to the Republican primary convention} referred to the plaintiff as a murderer at the Republican convention. The plaintiff complains that Weiss {another delegate} wrote on Facebook and Twitter that “he [plaintiff] claimed to be a victim in 1996 while murdering a man in cold blood.” {The term “cold blood” is somewhat ambiguous, but the court finds that it means that the killing was committed intentionally and without an effective defense. The crime of murder has the foregoing elements as part of the crime. There is no doubt the plaintiff shot and killed one man and shot and seriously injured another. The difference between killing, manslaughter and murder lies in the circumstances of the killing and the intent of the plaintiff at the time.} The plaintiff complained that Pedbereznak {a former Waterbury police officer who appeared on a pod cast operated by defendant Mariorano} and Mariorano referred to the plaintiff as a murderer and stated that the plaintiff “committed the act and the crime of murder” on Mariorano’s podcast….

The court dismissed the case under the Connecticut anti-SLAPP statute, which allows prompt dismissal of legally meritless claims based on speech about, among other topics, “public official or public figure”:

Because the plaintiff was a public figure and because the speech was political speech, the speech is protected unless the defendants, in producing the speech at issue, acted with actual malice. In order to establish actual malice, the defendants must be found to have had actual knowledge of the falsity of the statements or reckless disregard towards the falsity of the statements. Accordingly, the court must dismiss the claims unless the plaintiff has established that probable cause exists to believe that the plaintiff will ultimately be able to prove, by a preponderance of the evidence, that the statements are false and, to a clear and convincing standard, that each defendant acted with actual knowledge of the falsity of the statements or reckless disregard towards the falsity of the statements.

The plaintiff asserts that his pardon establishes probable cause. The court finds this argument to be incorrect for two reasons.

First, although a pardon wipes clean a conviction and the effects thereof, it does not discern or change the actual facts concerning what happened in 1996. Thus, although a pardon can wipe away an official criminal record, it cannot wipe clean the public consciousness of what actually happened. A pardon cannot discern or change the underlying facts and truth.

Second, a pardon is an exercise of governmental power vested in the board of pardons which voids the effects of a conviction and wipes the official record clean, but does not determine innocence or the facts concerning what actually happened. Instead, pardons are given for many reasons and they provide that regardless of what happened and despite a judicial conviction, the person pardoned will be relieved of the legal consequences thereof. The pardon itself is not determinative of the falsity of the statements at issue, is not evidence of falsity, and is not itself evidence of probable cause.

Further, whereas a standing criminal conviction for murder would be determinative of the issue in a subsequent civil litigation, the absence of a standing criminal conviction is not determinative. The foregoing is so because of the differences in the standard of proof. A determination of whether or not the statements at issue are true in this matter will be made based upon civil evidentiary standards and using the preponderance of evidence standard of proof. Accordingly, even without a standing criminal conviction, the statements could still civilly be determined to be true. {In fact, even in the face of an outright criminal acquittal, because of the differences in the standard of proof, the statements, except any statement asserting actual standing conviction of murder, could still be determined to be true for civil litigation purposes.}

In order to ultimately succeed on his claims, the plaintiff would first need to prove, to a preponderance of the evidence, that he is not a murderer based upon the actual facts of what happened in 1996. Further, the plaintiff would need to prove, to a clear and convincing standard, that each defendant acted with actual knowledge of falsity, or reckless disregard for the falsity, of their statements that the plaintiff is a murderer. For purposes of this motion to dismiss, the plaintiff must establish probable cause to believe that he can ultimately meet the foregoing burdens of proof….

In view of the foregoing, the plaintiff has offered two pieces of evidence to establish probable cause. The first is his pardon. However, the pardon, in and of itself, is no evidence of the truth of what actually happened in 1996. The second piece of evidence is the Appellate Court decision to grant the plaintiff a new trial thereby undermining the initial conviction of murder. However, as noted, the absence of a standing criminal conviction is not determinative. Further, the Appellate Court decision ordering a new trial on procedural grounds is also not itself evidence of the falsity of the statements or of probable cause.

In the face of the foregoing, the defendants, and the public, know that the plaintiff shot and killed one man, shot and severely wounded another man at the same time with a second gun, was initially convicted of murder but that a new trial was ordered, subsequently pled to manslaughter, served a lengthy prison term, and was only subsequently pardoned…. [The plaintiff has failed] to establish probable cause that he will ultimately be able to prove actual malice, with particularity and to a clear and convincing standard, that underpins the court’s finding.

For a similar result, see Martin v. Hearst Corp. (2d Cir. 2015).

Julie M. Porzio (Porzio Law Offices, LLC) and Nicholas P. Vegliante and Stephen T. Price (Cohn Bimbaum & Shea P.C.) represent defendants.