825 F.Supp. 906 (D.Hawai'i 1993), 92-00529, Partington v. Bugliosi

Docket Nº:92-00529 DAE.
Citation:825 F.Supp. 906
Party Name:Earle A. PARTINGTON, Plaintiff, v. Vincent T. BUGLIOSI, et al., Defendants.
Case Date:June 03, 1993
Court:United States District Courts, 9th Circuit

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825 F.Supp. 906 (D.Hawai'i 1993)

Earle A. PARTINGTON, Plaintiff,


Vincent T. BUGLIOSI, et al., Defendants.

No. 92-00529 DAE.

United States District Court, D. Hawai'i.

June 3, 1993

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Earle A. Partington, pro se.

Neville L. Johnson, Eric M. Moses, Neville L. Johnson & Associates, Los Angeles, CA, for Earle A. Partington.

Paul Alston, David A. Nakashima, Alston Hunt Floyd & Ing, Honolulu, HI, for Vincent T. Bugliosi, Bruce B. Henderson, W.W. Norton & Co., Inc., Random House.

Sidney K. Ayabe, Francis M. Nakamoto, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI, for Green Epstein Productions, Inc., Columbia Pictures Television, Inc., Matthew O'Connor, Tommy L. Wallace, Jim Green, Alan Epstein, James Henerson.

Sidney K. Ayabe, Francis M. Nakamoto, Rhonda A. Nishimura, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI, for CBS Inc.


DAVID ALAN EZRA, District Judge.

The court heard defendants' motion to dismiss and plaintiff's motions to amend complaint and for certification of question of Hawaii law on May 24, 1993. Neville L. Johnson, Esq. and Earle A. Partington, pro se, appeared on behalf of plaintiff. Paul Alston, Esq. and David A. Nakashima, Esq. appeared on behalf of W.W. Norton & Company, Inc., Random House, Inc. (incorrectly identified as W.W. Ballantine Books), Vincent T. Bugliosi, and Bruce B. Henderson (collectively, "the book defendants"). Francis M. Nakamoto, Esq. appeared on behalf of CBS Inc. (incorrectly identified as CBS Television, Inc.), Green Epstein Productions, Inc., Matthew O'Connor, Jim Green, Alan Epstein, and James Henerson (collectively, "the television defendants").

After reviewing the motions, the supporting and opposing memoranda, and hearing oral argument, the court GRANTS IN PART AND DENIES IN PART plaintiff's motion

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to amend complaint, DENIES plaintiff's motion for certification of question of Hawaii law, and GRANTS in all respects defendants' motions for summary judgment save and except Bugliosi's motion for summary judgment as to Count I which is DENIED.

I. Factual Background

The allegations in this defamation case arise indirectly from a bizarre incident that took place on Palmyra Island nearly two decades ago. Palmyra Island is a possession of the United States located in the North Pacific Ocean. It is uninhabited.

Sometime during the summer of 1974, Stephanie Stearns and Buck Duane Walker sailed from Hawaii to Palmyra Island on an old sailboat, the "Iola." Once there, Stearns and Walker feared to leave the island because they had packed inadequate food and supplies for their return voyage and because the condition of their vessel, which was poor at the start of the trip, had grown worse.

Some short time after Stearns and Walker reached Palmyra Island, a second sailboat, "Sea Wind," arrived at the island from San Diego. The "Sea Wind," which was in considerably better condition and better equipped than the "Iola," carried a crew of two on board--Muff and Mac Graham.

On or about October 28, 1974, Stearns and Walker sailed the "Sea Wind" into Hawaii. Curiously, the boat had been repainted since it left San Diego. Stranger still, the Grahams were not aboard. Stearns and Walker told the authorities that they believed the Grahams had died in a boating accident. They were later charged, tried, and convicted in the state court of Hawaii for the theft of the "Sea Wind."

In 1981, by mere happenstance, the bones of Muff Graham were found washed up on Palmyra Island. Soon thereafter, Stearns and Walker were indicted for the murder of Muff Graham in the United States District Court of Hawaii. The district court appointed Earle Partington to represent Buck Walker. Stearns made separate arrangements to be represented by Vincent Bugliosi and other counsel.

Partington and Bugliosi are colorful figures indeed. Partington, a well-known criminal defense lawyer in Honolulu, practices frequently in the state and federal courts of Hawaii and California. A contributing source of his notoriety, relevant here for its potential mitigating effect on damages alleged by Partington, was his involvement in State v. Clarke, a case in which the Hawaii Supreme Court reversed a conviction of Partington's client as a result of Partington's passive behavior at trial. 1 State disciplinary proceedings resulting from that case, in which, among other things, Partington failed to make an opening statement or closing argument and refused to examine key witnesses, are still pending. Partington concedes that his participation in that case has caused him to suffer considerable negative publicity.

Vincent Bugliosi is well-known both as a lawyer and as an author. Bugliosi originally earned his national reputation as the prosecuting attorney in Charles Manson's trial for the murder of Sharon Tate, and from his best-selling chronicle of that proceeding and the events that led to it, Helter Skelter, that he subsequently penned.

Following the criminal trials of Walker, who was convicted, and Stearns, who was acquitted, Bugliosi, together with Bruce Henderson, wrote And The Sea Will Tell (occasionally referred to hereinafter as simply "the book"), an account of the Graham murder and Bugliosi's role in successfully defending Stearns against the murder charge.

On February 24 and 26, 1991, a television miniseries was broadcast nationally by CBS, Inc. ("CBS"). The movie was produced by Epstein Productions, Inc. in conjunction with CBS. The movie was written by Tommy Wallace and James Henerson. Defendants Matthew O'Connor, Alan Epstein, and Jim Green were the producers.

Partington commenced this action on August 14, 1992 seeking damages on nine counts for six statements that he alleges were defamatory and cast him in a false

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light. The fact that these various statements were made is not in dispute. It is only their legal effect that is contested.

In Count I of the first amended complaint, filed November 3, 1992, Partington alleges that the book defendants defamed him by stating that he was formerly a state prosecutor in South Africa in the hardcover edition of And The Sea Will Tell.

In Counts II and III, Partington contends that the book defendants defamed him and cast him in a false light by implying that he, and his co-counsel Ray Findlay, had not read the transcript of the state court theft trial that had taken place several years earlier.

Count IV concerns a statement made by Bugliosi and Henderson in the book criticizing Partington and Findlay for taking, in the opinion of the authors, an overly submissive stance against the allegedly biased actions of The Honorable Samuel P. King, the judge presiding over Walker's trial. The authors analogized Partington's behavior to a steer being led to the slaughterhouse. Partington alleges that this statement cast him in a false light.

In Counts V and VI, Partington alleges that the book defendants defamed him and cast him in a false light by writing that he had failed to introduce evidence of an entry contained within a diary kept by Stearns indicating that Stearns and Walker had previously socialized with the Grahams. Though Partington does not contest the fact that he failed to introduce this evidence, he claims that the false implication of the statement was that he does not conduct his professional business competently.

Count VII concerns the authors' criticism of Partington's failure to call J.W. Williams as a witness at trial. Williams was allegedly a witness to a confession made by Walker while in prison. Partington stated that he declined to call Williams because he was uncertain of what his testimony might be in light of contradictory stories that Williams had told the grand jury and an FBI investigator. Bugliosi and Henderson stated that Partington's decision was "plausible, except for the inconvenience of fact." Partington contends that this statement implies that he is a liar and an incompetent attorney.

The final two counts concern the following statement made in the television adaptation of the book by the character portraying Vincent Bugliosi: "If I defend you [Stearns] the way Partington is defending Walker, you'll spend the rest of your life in prison." Partington again alleges that these statements were defamatory and cast him in a false light.

II. Procedural Background

On March 10, 1993, the book defendants moved to dismiss the first amended complaint under Fed.R.Civ.P. 12(b) for lack of jurisdiction and for failure to state a claim upon which relief could be granted. The television defendants filed an identical motion on April 2, 1993.

Because the defendants submitted, and the court deemed admissible, matters outside the scope of the pleading, the court informed the parties of its intention to treat the motion to dismiss as a motion for summary judgment pursuant to Fed.R.Civ.P. 12(b) and 56. The parties were granted leave to supplement their positions with additional documentary evidence.

On April 1, 1993, Earle Partington moved to certify the following questions to the Hawaii Supreme Court:

(1) Does Hawaii recognize the tort of false light as defined in the Restatement (2d) of Torts?

(2) If so, must special damages be plead for such an action to lie?

Additionally, Partington makes several references in his opposition to the motions for summary judgment of his intention to amend his complaint. The court treats...

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