Date: 02-01-2010

Case Style: William N. Peterson v. v. John Grisham

Case Number: No. 08-7100

Judge: Lucero

Court: United States Court of Appeals for the Tenth Circuit on appeal from the United States District Court for the Eastern District of Oklahoma, Muskogee County

Plaintiff's Attorney: Gary Richardson (Denise P. James with him on the briefs), The Richardson Law Firm,
P.C., Tulsa, Oklahoma, for the Plaintiffs-Appellants.

Defendant's Attorney: Bob Nelon, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City,
Oklahoma, and Cheryl Pilate, Morgan Pilate, LLC, Olathe, Kansas (Jon Epstein, Hall,
Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma, with them
on the briefs), for the Defendants-Appellees.

Description: In 1988, Ronald Williamson and Dennis Fritz were wrongly convicted of the rape
and murder of Debra Sue Carter. Both men were later exonerated after spending over a
decade in jail. Their painful story caught the attention of renowned legal-fiction author
John Grisham, who wrote a book about Williamson appropriately titled The Innocent
Man. Fritz also wrote a book, Journey Toward Justice, detailing the horror of his years of
unjust confinement.

Each of the plaintiffs in this case—Oklahoma District Attorney William Peterson;
former Shawnee police officer Gary Rogers; and former Oklahoma state criminologist
Melvin Hett—played a role in the investigation or prosecution and conviction of
Williamson and Fritz. Neither The Innocent Man nor Journey Toward Justice paints the
plaintiffs in a positive light. Following the release of these books, plaintiffs filed suit in
Oklahoma district court seeking relief for defamation, false light invasion of privacy,
intentional infliction of emotional distress, and civil conspiracy. They named Grisham,
Fritz, anti-death penalty advocate Barry Scheck, and author Robert Mayer—along with
their respective publishers—as defendants.1 The district court dismissed the suit for
failure to state a claim upon which relief can be granted. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.

I

On the morning of December 8, 1982, Carter was found dead in her garage
apartment in the small town of Ada, Oklahoma. She had been raped and suffocated by
her assailant. Four years later, Rogers and his fellow officers arrested Williamson and
Fritz for Carter’s murder. Peterson prosecuted the case.

The evidence against Williamson and Fritz consisted of hair samples,
Williamson’s statement to police about a dream in which he had committed the murder,
and the testimony of jailhouse informants. Williamson v. State, 812 P.2d 384, 391-93
(Okla. Crim. App. 1991). Hett testified that hairs recovered from the crime scene
belonged to Williamson and Fritz. Id. at 391. Based on this evidence, the jury convicted
Williamson and Fritz of rape and murder. Williamson was sentenced to death, and Fritz
received life in prison. Id. at 390, 391 n.1.

Following a grant of habeas relief by the Eastern District of Oklahoma, DNA
testing was ordered in 1999. That testing revealed that hair and semen samples taken
from the crime scene could not have come from Williamson and Fritz. Both men had
been wrongfully convicted. Another man was eventually found guilty of Carter’s
murder. Gore v. State, 119 P.3d 1268 (Okla. Crim. App. 2005).2 Williamson and Fritz’s
exonerations spawned two different books, as well as a chapter in a third and an
afterword in a fourth.

Grisham published The Innocent Man in 2006. It tells Williamson’s life story and
explores the circumstances leading to his wrongful conviction, imprisonment, and
subsequent exoneration. Grisham depicts Peterson, Rogers, and Hett as particularly
responsible for the plight of Williamson and Fritz. He also faults what he describes as a
broken criminal justice system that condones “bad police work, junk science, faulty
eyewitness identifications, bad defense lawyers, lazy prosecutors, [and] arrogant
prosecutors.”

In Journey Toward Justice, Fritz speaks in equally harsh tones about the public
officials who put him behind bars. As the title suggests, the book describes Fritz’s
agonizing trail from wrongful imprisonment to exoneration. Fritz recounts in vivid detail
his fears and frustrations as a wrongfully accused murder suspect and convict, and his
eventual elation upon release.

Barry Scheck, Fritz’s former attorney and a prominent anti-death penalty
advocate, wrote the foreword to Journey Toward Justice. In that foreword, Scheck
commends Fritz for having the courage to write his personal story, and praises Fritz for
his recent work in the anti-death penalty movement. Both Fritz and Scheck were
interviewed by Grisham for The Innocent Man. Scheck ultimately devoted a chapter of
his 2003 book, Actual Innocence, to the wrongful convictions of Williamson and Fritz.
Lastly, Robert Mayer’s book, The Dreams of Ada, explores the 1985 convictions
of Tommy Ward and Karl Fontenot for the death of Denice Haraway. The Haraway case
shared many parallels with the Carter case, including minimal physical evidence, the use
of “dream” confessions, and reliance on testimony by jailhouse informants. That case
also involved a similar cast of characters: Peterson was the prosecutor and Rogers was
the investigator. Grisham used The Dreams of Ada—and found it to be particularly
helpful—in his research for The Innocent Man. Shortly after Grisham’s book was
published, Broadway Books reissued The Dreams of Ada with a new afterword written
by Mayer.3

With the exception of Actual Innocence, all these books were released (or, in the
case of The Dreams of Ada, re-released) in October 2006. One year later, Peterson and
Rogers filed suit alleging defamation, false light invasion of privacy, intentional infliction
of emotional distress, and civil conspiracy. They subsequently amended their complaint
to add Hett as a plaintiff. 4 After defendants filed motions to dismiss, the district court
directed plaintiffs to file a second amended complaint specifying the alleged defamatory
statements.

In their 116-page second amended complaint, plaintiffs claimed that defendants
engaged in “a massive joint defamatory attack” against them. This attack was motivated
in part by defendants’ shared desire “to further efforts to abolish the [d]eath [p]enalty.”

The district court dismissed the second amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
Peterson v. Grisham, No. CIV-07-317-RAW, 2008 WL 4363653, at *10 (E.D. Okla.
Sept. 17, 2008) (unpublished). It also dismissed plaintiffs’ motion to further amend their
complaint. Id. This appeal ensued.

II

We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss.
Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). “The court’s function on a
Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff’s amended complaint alone is legally sufficient to
state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565
(10th Cir. 1991). We accept all well-pled factual allegations as true and view these
allegations in the light most favorable to the nonmoving party. Sutton v. Utah State Sch.
for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

To survive a Rule 12(b)(6) motion, a plaintiff must allege sufficient facts to make
her “claim for relief . . . plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007). While “[t]echnical fact pleading is not required . . . the complaint must still
provide enough factual allegations for a court to infer potential victory.” Bryson v.
Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). If the allegations “are so general that
they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to plausible.’” Robbins v.
Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Twombly, 550 U.S. at 570).

A

Before evaluating each of plaintiffs’ claims individually, we consider plaintiffs’
general arguments that the district court incorrectly applied Rule 12(b)(6). Plaintiffs
argue that that the district court applied summary judgment standards in evaluating
defendants’ 12(b)(6) motions. It is correct that the district court cited to two summary
judgment cases in its analysis, Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995), and
Riley v. Harr, 292 F.3d 282 (1st Cir. 2002). Peterson, 2008 WL 4363653, at *4-5.
However, the court cited to these cases in discussing the proper review of an alleged
defamatory statement in the context of the book as a whole. When reciting the legal
standard for dismissal, the district court specifically stated it was evaluating defendants’
motions under Rule 12(b)(6). Id. at *1-2.

Plaintiffs also contend that the district court “failed to take into consideration any
of the one-hundred and three . . . pages of specific factual allegations” in their second
amended complaint. According to plaintiffs, the court sweepingly concluded that
statements by authors regarding government officials and public figures could never be
considered defamatory or otherwise actionable. They further accuse the district court of
neglecting to analyze each of the factual allegations in their complaint on the basis that
the district court noted that such a task would be “boring” and “repetitive.” Id. at *6.

Plaintiffs mischaracterize the district court’s statements. The court did not rule
that defamation claims against authors writing about public officials are never plausible.

Instead, it dismissed plaintiffs’ complaint only “after review of each of the statements
alleged.” Id. Though we encourage district courts to more fully articulate their reasoning
in granting Rule 12(b)(6) motions, the court was not required to engage in a detailed
written analysis of each of dozens of allegedly defamatory statements. The district court
concluded the statements shared common characteristics that preclude relief, and the
record on appeal provides this court with an adequate basis for reviewing each statement.

Cf. Aramburu v. Boeing Co., 112 F.3d 1398, 1401 n.1 (10th Cir. 1997) (reaching a
similar conclusion in a summary judgment context).

B

Turning to plaintiffs’ individual claims, we agree with the district court that each
cause of action fails to state a claim upon which relief can be granted. Taking as true the
facts plaintiffs allege in their second amended complaint, we conclude that defendants are
statutorily protected from suit.

1

Oklahoma law defines libel as “a false or malicious unprivileged publication . . .
which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends
to deprive him of public confidence, or to injure him in his occupation.” Okla. Stat. tit.
12, § 1441. To state a claim for libel, a plaintiff must allege that a defendant made: “(1)
a false and defamatory statement concerning [plaintiff]; (2) an unprivileged publication to
a third party; and (3) fault amounting to at least negligence on the part of the publisher.”
Cardtoons, L.C. v. Major League Baseball Players Ass’n, 335 F.3d 1161, 1166 (10th Cir.
2003) (citing Sturgeon v. Retherford Publ’ns, Inc., 987 P.2d 1218, 1223 (Okla. Civ. App.
1999)).

Unless a plaintiff demonstrates that a defendant committed libel per se, she must
also plead and prove special damages caused by publication. Id. Because plaintiffs in
this case concede that they alleged no special damages, they must prove libel per se,
which requires a statement that is “clearly defamatory on its face.” Miskovsky v. Tulsa
Tribune Co., 678 P.2d 242, 247 (Okla. 1983) (quotation omitted); see also Nichols v.
Bristow Publ’g Co., 330 P.2d 1044, 1045 (Okla. 1957) (“Per se means by itself, and
without innuendo.” (internal quotations omitted)). In contrast, statements that are
“reasonably susceptible of both a defamatory and innocent meaning” are not libelous per
se. Miskovsky, 678 P.2d at 247 (quotation omitted). Likewise, mere “gratuitous
conclusions of the pleader” cannot be taken to give “words a meaning which they did not
otherwise have.” Okla. Publ’g Co. v. Kendall, 221 P. 762, 764 (Okla. 1923).
Given that plaintiffs are public officials, they face an especially heavy burden in
attempting to demonstrate libel per se. Under Title 12, § 1443.1, of the Oklahoma
Statutes, “[a]ny and all criticisms upon the official acts of any and all public officers” are
privileged and cannot be considered libelous, unless a defendant makes a false allegation
that the official engaged in criminal behavior. To fall into this category, “the words
alleged to have been spoken of the plaintiff, when taken in their plainest and most natural
sense, and as they would be ordinarily understood, [must] obviously import the
commission of crime punishable by indictment.” Kendall, 221 P. at 764.5
Plaintiffs have not carried their burden. Several of the statements included in
plaintiffs’ second amended complaint do not concern plaintiffs and therefore would not
constitute libel against them regardless of their status as public officials or whether they
had pled special damages.6 As to those that do, we agree with the district court that
5 Kendall may arguably provide for an additional exception: “When a defense of
privileged comment on a matter of public interest is presented by the issues, the plaintiff
may overcome the privilege pleaded either by proof that the publication was inspired by
actual malice, or that the facts published and commented upon were false.” Id. at 768
(quotations omitted); see also John W. Hager, Civil Libel and Slander in Oklahoma, 2
Tulsa L.J. 1, 24-25 (1965); Phillip D. Hart, Note, Libel and Slander: Privilege to
Criticize Public Officials, 12 Okla. L. Rev. 300, 300-02 (1959). We do not address the
potential existence of such an exception because plaintiffs conceded or waived the point
below in their response to a motion to dismiss by stating “[b]ecause of the nature of the
communication this lawsuit is based upon, all statements other than those which ‘falsely
impute[] crime to the’ Plaintiffs are, by statute, privileged communication.” (Quoting
§ 1443.1); see O’Connor v. City & County of Denver, 894 F.2d 1210, 1214 (10th Cir.
1990); see also Kendall, 221 P. at 768 (holding that that once a defendant raises a
§ 1443.1 defense, the plaintiff bears the burden of demonstrating the privilege does not
apply).

plaintiffs point to no statement in which defendants directly accuse any plaintiff of a
crime.7 Plaintiffs expect us to scale a mountain of inferences in order to reach the
conclusion that defendants’ statements impute criminal acts to plaintiffs and render the
statutory privilege of § 1443.1 inapplicable. We decline to engage in such inferential
analysis, or to take a myriad of other analytical leaps plaintiffs ask us to make. Any
connection between defendants’ statements and an accusation of criminal activity is far
too tenuous for us to declare them as unprivileged for purposes of § 1443.1.

2

Although the text of § 1443.1 only specifically includes claims for libel,
Oklahoma courts have extended its reach to cover claims for intentional infliction of
emotional distress and false light invasion of privacy. See Kirchstein v. Haynes, 788
P.2d 941, 954 (Okla. 1990) (intentional infliction of emotional distress); Johnson v.
KFOR, 6 P.3d 1067, 1069 (Okla. Civ. App. 2000) (false light). In Kirschstein, the
the judge, does not directly implicate any of the plaintiffs. Thus, as a matter of law, the
statement, along with numerous others that do not directly concern plaintiffs, is not
libelous as to plaintiffs.

Oklahoma Supreme Court held that “when [a] claim for intentional infliction of
emotional distress is based on the same factual underpinnings as a defamation claim for
which the privilege applies, a claim for intentional infliction of emotional distress is also
barred by the reach of the absolute privilege.” 788 P.2d at 954.8 We are faced with the
same factual underpinnings for plaintiffs’ intentional infliction of emotional distress
claims as those for their libel claims. Because we have already determined that § 1443.1
applies to plaintiffs’ libel claims, we necessarily conclude that plaintiffs are also barred
under the statute from asserting a valid claim of intentional infliction of emotional
distress.

Similarly, § 1443.1 protects defendants from plaintiffs’ false light claims. See
Johnson, 6 P.3d at 1069 (applying the privilege to both defamation and false light
claims). Unlike a claim for libel per se, a claim for false light invasion of privacy can
properly rest on a defendant stating a falsehood by implication—such as through the use
of innuendo. See Restatement (Second) of Torts § 652E cmt. b (1977) (“It is not . . .
necessary to the action for invasion of privacy that the plaintiff be defamed.”);
McCormack v. Okla. Publ’g Co., 613 P.2d 737, 741 (Okla. 1980) (“It is not necessary
that the statements be untrue.”). However, there must be a clear connection between a
defendant’s statement and the falsehood that the statement purportedly implies. See
Restatement (Second) of Torts § 652E cmt. b, illus. 1-5. As noted, plaintiffs fail to allege
the necessary nexus between defendants’ statements and the proposition that plaintiffs
were involved in a crime.9 It necessarily follows that, under Oklahoma law, plaintiffs fail
to state an actionable claim for false light invasion of privacy.

C

Plaintiffs likewise fail on their final claim, civil conspiracy. A civil conspiracy
consists of two or more persons agreeing “to do an unlawful act, or to do a lawful act by
unlawful means.” Roberson v. PaineWebber, Inc., 998 P.2d 193, 201 (Okla. Ct. App.
1999). But “a conspiracy between two or more persons to injure another is not enough;
an underlying unlawful act is necessary to prevail on a civil conspiracy claim.” Id.

“Disconnected circumstances, any . . . of which[] are just as consistent with lawful
purposes as with unlawful purposes, are insufficient to establish a conspiracy.” Dill v.
Rader, 583 P.2d 496, 499 (Okla. 1978).

Plaintiffs argue that defendants’ parallel conduct in publishing (and republishing)
their books in close temporal proximity and defendants’ endorsements of each other’s
books are sufficient evidence to establish a civil conspiracy.10 We disagree. Merely
because defendants published their books in close temporal proximity to one another does
not demonstrate there was an illegal agreement to engage in “a massive joint defamatory
attack.” The same is true for book endorsements. There may well have been other
entirely legitimate motives at play, such as a desire to sell more books or aspirations to
foster public support for the abolition of the death penalty. Publishing and endorsing
books are perfectly lawful activities. We conclude that plaintiffs failed to plead either
illegal ends or illegal means, and accordingly the district court did not err in dismissing
plaintiffs’ claim of a civil conspiracy.

III

Having determined that plaintiffs’ second amended complaint fails to state a claim
on which relief may be granted, we now ask whether a new affidavit produced by
plaintiffs changes the equation and effects a different result. The district court
determined it would not, denying plaintiffs’ motion to amend based on new evidence as
futile. Peterson, 2008 WL 4363653, at *9-10. Although we review a district court’s
decision to deny a motion to amend a pleading for abuse of discretion, when the denial is
“based on a determination that amendment would be futile, our review for abuse of
discretion includes de novo review of the legal basis for the finding of futility.” Miller v.
Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009).
Plaintiffs sought leave to amend their complaint for a third time by supplementing
it with an affidavit allegedly showing that Scheck sought opinions from more than one
expert when he defended Williamson and Fritz. According to plaintiffs, this affidavit
would provide further support for each of their claims. We agree with the district court
that attorneys regularly consult more than one expert. Such “run-of-the-mill litigation
tactics” do not demonstrate a conspiracy. Peterson, 2008 WL 4363653, at *9. Moreover,
the affidavit does not speak to whether any of defendants’ statements impute criminal
activity to plaintiffs. Thus, we take the view of the district court that amendment would
be futile.

* * *

See: http://www.ca10.uscourts.gov/opinions/08/08-7100.pdf

Outcome: For the foregoing reasons, we AFFIRM the district court’s dismissal of plaintiffs’ second amended complaint for failure to state a claim upon which relief can be granted. We also AFFIRM the court’s denial of plaintiffs’ motion to amend.For the foregoing reasons, we AFFIRM the district court’s dismissal of plaintiffs’
second amended complaint for failure to state a claim upon which relief can be granted.
We also AFFIRM the court’s denial of plaintiffs’ motion to amend.

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's note: Mr. Richardson has had most of his successes in prosecuting cases like this to verdict. In this instance he will not get the chance to argue his case to a jury. Digested by Jesse Antell