Morality, ethics, and law at a Grace-less intersection
The blawgosphere has been somewhat abuzz this week because a Harvard psychiatrist, Dr. Harold J. Bursztajn, has indicated his opinion in a court filing that CNN Headline News show host Nancy Grace contributed to the suicide of Melinda Duckett. His filing is a part of a lawsuit filed by Duckett’s estate and is intended to counter the testimony of Dr. Andrew E. Slaby, a defense psychiatrist who opined that the show did not contribute to Duckett’s suicide. Bursztajn suggests that if Duckett went on the show with the expectation that she would be treated like the mother of a missing child and that the show would be focused on helping to get the public to help find her child, Grace treating her like a suspect in the case may have led to the disorganization that followed and weakened any protections Duckett might have had against suicide.
CNN has moved to have Bursztain’s opinion struck and to have him excluded as an expert witness on grounds of timeliness and on grounds that the the plaintiff’s expert engaged in rebutting the defense expert’s statement, in violation of a court order.
The case goes back to 2006 and the disappearance of Duckett’s two-year old son, Trenton, who has never been found. Duckett had reported the child kidnapped, and agreed to appear on Grace’s show. The family’s lawsuit alleges that Duckett agreed to appear because CNN and the show deceived her into appearing under false pretenses. Undisputed is that Duckett was on Grace’s show, Grace grilled her on whether she had taken a polygraph test or had refused to, and Duckett committed suicide the next day. You can read a transcript of the show, although it doesn’t reflect the desk-pounding that reportedly accompanied some of the questioning. You can hear some audio snippets in a news broadcast about the case. Despite Grace’s harping on the polygraph issue in a manner that may have suggested that Duckett was complicit because she refused to take a polygraph, Duckett’s lawyer, Kimberly Schulte, later stated in an interview that she had advised Duckett not to take a police polygraph and had advised the police of that.
Joshua Duckett, Trenton’s father and Melinda’s ex-husband, was also on a guest on the show and had also been named in the lawsuit but a judge granted his motion to be dismissed from the suit.
Grace wasn’t the only member of the media to raise questions about whether Duckett was involved in her son’s disappearance. Duckett’s public suicide note mentions the role of the media in her decision to kill herself:
Your focus came off of my son. I love him and only wanted him safe in my arms. You created rumors and twisted words. Usually I am strong and what others say does not affect me. However I am young, have worked my [explicative] off and still being faced with ridicule and criticism.
I only wish you do not push anyone else. I do not bleed my emotions to the public and throughout this situation you did not understand that. There were many more errors you made in understanding me, but time is short and I have more important people to speak to.”
[...]
I have refrained from any negative comments in the hopes that individuals will realize their wrongdoings. Thank you for your time.”
In a column on his blog, The Cuban Revolution, attorney Mark Cuban reviews the history of the case and then gets into the legal issues concerning the wrongful death lawsuit. Cuban, who describes Grace as “abrasive, confrontational and arrogant” writes, in part:
Did Nancy Grace have a duty to protect Melinda Duckett from herself or at least warn her of the show’s agenda? Did she “create a mood” that led to suicide? Melinda Duckett had a troubled life long before she met Nancy Grace. Linda Duckett knew she was a person of interest in the disappearance of her son before she agreed to do the show. Linda Duckett voluntarily did the interview. She could have stopped it at any time. Melinda was outgunned and over-matched. It is unclear how that translates into a duty to warn her of anything.
[...]
Nancy Grace is guilty. She is guilty of being Nancy Grace. While that might be a death sentence to some watching her show, it has worked for well for her over the years. Neither her nor CNN owed any duty to warn Melinda Duckett that Nancy would be tough on her. It is difficult to imagine a realistic scenario in which they would affirmatively create such a duty unless Melinda told them she was going to harm herself if Nancy were too hard on her. The Ducketts will probably not be getting that same “Jenny Jones jury love”. Trenton Ducket is still missing…..
Cuban was much kinder to Grace than constitutional attorney Jonathan Turley, who describes Grace as CNN Headline News’ “rabid host” and has repeatedly mentioned her conduct when she was a prosecutor. But despite his obvious dislike for Grace, Turley had noted in 2008 that:
The lawsuit against Grace remains a long shot given causation and foreseeability issues as well as obvious plaintiff’s conduct issues.
And while mentioning the new forensic report, Turley does not indicate that he has changed his opinion on the probable outcome of the lawsuit.
Iin some respect, is this case really so different from the Lori Drew case? Maybe Grace was obnoxious, confrontational, accusatory, or embarrassed Duckett on national TV. Maybe Duckett trusted her and felt disorganized, confused, and depressed by what she may have perceived as a betrayal. But so what if all that were true? Does it make Grace morally responsible in any way for Duckett’s suicide? That depends on your morals. Does her conduct make Grace ethically responsible in any way for Duckett’s suicide? That depends on your ethics. But let’s not confuse morals and ethics with legal liability in a civil suit claiming wrongful death.
While Mark Cuban and Jonathan Turley do not think the lawsuit will succeed, Backseat Lawyer has a different perspective and thinks that the appearance of a Harvard psychiatrist may mean that this dog can hunt and that CNN might settle. But Backseat Lawyer does not seem to be aware of CNN’s motion to strike and exclude. If CNN prevails on that, then maybe “that dog won’t hunt.”
Could a jury dislike Grace enough to find for Duckett’s family? Could they be put off by her very public lack of remorse for any role she might have played in the suicide? Could they find for the plaintiffs if evidence is offered that indicates that the show got Duckett to appear by misrepresentation or deception? Maybe. But I don’t think that this will be any easy case to win or to sustain on any appeal, however much I may dislike Grace’s style.
