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Judge Clears Penguin of Negligence in Publishing Account of Illicit Affair
New Jersey Law Journal
A federal judge on Monday dismissed a libel suit over an allegation of an extramarital affair in a book about the Vidocq Society, a band of elite investigators who crack unsolved crimes.
U.S. District Judge Noel Hillman said the plaintiff failed to demonstrate that publisher Penguin and author Michael Capuzzo were negligent in fact-checking the vignette in the 2010 book, The Murder Room.
With insufficient evidence of negligence, "an essential element of the tort of defamation, defendants are entitled to judgment as a matter of law," Hillman said in Crescenz v. Penguin Group (USA) Inc., 11-cv-493.
Plaintiff Joan Crescenz, of West Berlin, was for almost 30 years the administrative assistant to Frank Bender, a forensic artist well-known for creating sculptures of crime victims' faces based on molds cast from decaying skulls.
Bender and Crescenz had spouses, but the book said Bender had an "open marriage" and boasted of his sexual exploits and he and Crescenz were romantically involved. He died in 2011.
Capuzzo and Penguin claimed Crescenz was a limited-purpose public figure and the book's statements about her were a matter of public concern, so an actual malice standard applied.
Crescenz contended that she was a private figure and the matter was one of private concern, dictating a negligence standard.
Hillman said the court did not need to decide which standard applied, because even if the case fell into the private figure-private concern category, Crescenz failed to establish the requisite negligence.
Hillman cited a series of details about the relationship between Bender and Crescenz that were undisputed and that led Capuzzo to believe a relationship existed:
Bender and others told Capuzzo that Bender had a long-term sexual relationship with Crescenz.
Bender routinely walked around his Philadelphia studio naked in front of her.
Bender's studio contained many nude paintings, phallic symbols and a sculpture of the genitalia of one of his girlfriends. In the middle of the studio floor was an opening leading to a room with a full bar and bed, which was used for parties and sexual encounters.
A 2004 article about Bender in Esquire magazine described Crescenz as his assistant and "second wife."
Crescenz often stayed overnight at Bender's house.
Bender and Crescenz traveled together for business and vacations and slept in one-bed hotel rooms.
Bender, his daughter and two Vidocq Society members profiled in the book did not object to the depiction of Bender's sexual relationship with Crescenz.
Crescenz cited a 2010 email she sent to Penguin, objecting to Capuzzo's "degrading characterization" of her but not addressing whether she and Bender had a sexual relationship. She also noted that Capuzzo never asked her about it.
To determine whether Crescenz established negligence, the judge relied on Restatement (Second) of Torts, sec. 580B (1977), which said a book publisher and professional writer are "held to the skill and experience normally possessed by members of that profession," and that "customs and practices within the profession are relevant in applying the negligence standard."
Crescenz failed to demonstrate that a publisher must independently check every fact in a nonfiction book, said Hillman, who sits in Camden.
On the other hand, Hillman continued, the defendants presented certifications from William Shinker, president of the book's publisher, Gotham Books, an imprint of Penguin, and Alexander Gigante, senior vice president for legal affairs at Penguin, that publishers rely on authors to stand for the truth of the words they write, which is memorialized in a signed agreement.
In addition, Hillman noted, The Murder Room was vetted by outside legal counsel before publication.
"There is insufficient evidence that the fact-checking process at issue here was negligent," Hillman wrote.
In addition, Crescenz's July 2010 email to Penguin did not support her assertion of negligence because she never explicitly said in the message that she did not have a sexual relationship with Bender.
Finally, Cappuzzo's failure to ask Crescenz directly about a sexual relationship with Bender does not support her assertion that he acted unreasonably, Hillman said.
Even if he had asked and she denied having one, "it would have been reasonable for Capuzzo to conclude she was not being truthful based on other information he had gathered," Hillman said.
Hillman said the nature of the relationship is "unlikely to ever be resolved."
Crescenz's lawyers were Clifford Haines and Danielle Weiss of Haines' firm in Philadelphia. Haines was out of the office and Weiss did not return a call.
The defendants' attorney, Howard Schwartz of Wolff & Samson in West Orange, says that even though the judge applied a negligence standard, "making it harder for the publisher and author, we overwhelmingly prevailed."