During closing arguments Wednesday in the first Sandy Hook defamation case against rightwing showman Alex Jones, the defendant’s lawyer Andino Reynal cautioned the jury about anchoring bias. He warned jurors not to fixate on the first number they were given, in this case the demanded $150 million in punitive damages for Neil Heslin and Scarlett Lewis, who faced years of harassment after their son Jesse Lewiss was murdered at Sandy Hook Elementary School, and Jones called the massacre a “hoax.”
This would have been good advice for people watching the trial as well, since there was general astonishment when the jury returned a $4.1 million compensatory verdict in favor of the plaintiffs. Jones’s conduct on his show and in court was so vile and outrageous, it created an expectation that perhaps a jury in Texas would smack the crap out of a defendant without the plaintiff having to demonstrate specific and substantial economic losses. And … it didn’t.
Heslin and Lewis’s attorney Mark Bankston purported to be delighted with the verdict and promised that the real action would be the jury award on punitive damages. He suggests that the cap on damages is “a reasonable multiple” of the punitive award.
“A practical fear for Mr. Jones is, is he going to walk out of this courtroom paying $50 million, or is he going to have to walk out of this courtroom paying $6 million?”
Others have pointed out that Texas law caps punitive (“exemplary”) damages at twice the compensatory damage award plus $750,000. Moreover, an exemplary damage award requires an unanimous jury, and only ten of the twelve jurors agreed on the original $4.1 million compensatory award. And if the jury’s original award was for non-economic damages, i.e. to compensate them for pain and suffering, then they may only get the $750,000 in this phase of the trial. Which is perhaps why plaintiffs’ counsel tried to “anchor” the jury at $150 million in the first place.
But Texas law prohibits telling the jury about the cap, so it may well return a massive verdict which will then be reduced to comply with the statute — sending a signal about Jones’s moral culpability, but allowing him to walk away with a slap on the wrist in light of the company’s annual revenues in the neighborhood of $65 million.
This morning, the brief punitive phase of the trial began, giving the jury a chance to punish Jones for his outrageous conduct. Forensic economist Bernard Pettingill testified that Infowars’s parent company Free Speech Systems is wholly reliant on Jones agreeing to scream into a microphone forever.
“You cannot separate Alex Jones from the company,” he told the jury, valuing Free Speech Systems at $130 million, twice annual revenue, agreeing that he’d have had more to go on if (a) the company had kept “normal” books, or (b) the company had actually complied with discovery.
Plaintiffs’ counsel Wesley Ball gave an impassioned close, urging the jury to put an end to Jones’s “monetization of misinformation and lies.”
“Speech is free, lies you pay for,” he said, urging the jury to “not only take Alex Jones’s platform away, I ask that you make sure he can’t rebuild the platform.”
“That is punishment, that is deterrence,” he roared.
In his close, Reynal sought to bring down the temperature in the room, urging the jurors to “look at the facts and the law.” Where Ball sought to make Jones an avatar for misinformation itself, Reynal painted his client as merely a talkshow host, suggesting that the Clinton campaign and the Megyn Kelly show bore equal responsibility for republishing Jones’s words and adding to the plaintiffs’ pain.
Didn’t Scarlett Lewis get the “award” of confronting Jones from the witness stand, he wondered. Plus she got an invitation to come on his show!
“That’s the good that can come from this case,” he intoned somberly, before the case went to the jury.
In the meanwhile, CNN reports that US Bankruptcy Court Judge Christopher Lopez reduced Jones’s take home pay to $10,000 per week, down from $1.3 million annually. He also cut off payments to the company AmEx card, which was apparently being used to pay something in the neighborhood of $350,000 per month for Jones’s personal expenses, including housekeeping at his home, where he keeps a broadcast studio.
The jury returned its compensatory damage award relatively quickly, and today is Friday so, perhaps we won’t have to wait long to get to the end of this ordeal … and on to the appeal, because these poor parents have been through so much already.
Liz Dye lives in Baltimore where she writes about law and politics.