Colborn v. Netflix Inc.
| Docket Number | Case No. 19-cv-0484-bhl |
| Decision Date | 10 March 2023 |
| Citation | 661 F.Supp.3d 838 |
| Parties | Andrew L. COLBORN, Plaintiff, v. NETFLIX INC., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
George Burnett, Christina D. Sommers, Law Firm of Conway Olejniczak & Jerry SC, Green Bay, WI, April Rockstead Barker, Schott Bublitz & Engel SC, Waukesha, WI, Michael C. Griesbach, Griesbach Law Offices LLC, Manitowoc, WI, for Plaintiff.
Leita Walker, Isabella Salomao Nascimento, Ballard Spahr LLP, Minneapolis, MN, Emily S. Parsons, Matthew E. Kelley, Ballard Spahr LLP, Washington, DC, James A. Friedman, Godfrey & Kahn SC, Madison, WI, for Defendant Netflix Inc.
Elizabeth H. Baldridge, Jean-Paul Jassy, Jeffrey A. Payne, Kevin Vick, Meghan E. Fenzel, Jassy Vick Carolan LLP, Los Angeles, CA, James A. Friedman, Godfrey & Kahn SC, Madison, WI, for Defendant Chrome Media LLC.
Elizabeth H. Baldridge, Jean-Paul Jassy, Kevin Vick, Meghan E. Fenzel, Jassy Vick Carolan LLP, Los Angeles, CA, James A. Friedman, Godfrey & Kahn SC, Madison, WI, for Defendants Laura Ricciardi, Moira Demos.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
On December 18, 2015, Netflix released the ten-part docuseries Making a Murderer and turned small-town sergeant Andrew Colborn into a household name. He now very much wishes it had not. His unflattering portrayal in the series transformed his "15 minutes of fame" into what felt like a far longer period of infamy, as a mob of outraged viewers flooded his voicemail and email inboxes with vile and hostile messages. Some called him a crooked cop. Others wished him a long, unpleasant stay in fiery perdition. At least one person threatened to harm his family. Meanwhile, two thousand miles away, Making a Murderer's producers were basking in accolades and consorting with major media outlets. Critics lauded their journalistic tenacity and unique ability to synthesize the legal and dramatic.1 Colborn received no such flattery—as the producers took the stage at the Microsoft Theatre to accept their Emmys, he was busy boarding up the front door to his own house. Outraged by what he believed to be grossly unjust, inverted life trajectories, Colborn filed this lawsuit, accusing Netflix, Inc., Chrome Media LLC, and producers Laura Ricciardi and Moira Demos of defamation. All Defendants have moved for summary judgment. Colborn has also moved for partial summary judgment on 52 allegedly defamatory statements. The dispositive question is whether Colborn has produced sufficient evidence to make a defamation case out of his admittedly harsh portrayal. He has not. The First Amendment does not guarantee a public figure like Colborn the role of protagonist in popular discourse—in fact, it protects the media's ability to cast him in a much less flattering light—so Defendants are entitled to summary judgment on all counts.
Making a Murderer attempts to condense the tumultuous life of convicted murderer Steven Avery into roughly ten hours of narratively satisfying television. The series opens in 1985, when police arrested Avery, then only 23 years old but already well-acquainted with the criminal justice system, and charged him with the attempted murder, sexual assault, and false imprisonment of Penny Beerntsen. (ECF No. 326 at 1-2.) Though he professed his innocence, a jury accepted Beerntsen's eyewitness testimony and convicted Avery on all counts, and a judge sentenced him to 60 years in prison. (Id. at 2-3.)
About 10 years later, in 1994 or 1995, Andrew Colborn, a Manitowoc County Jail Corrections Officer, fielded a phone call from a detective in another jurisdiction. (Id. at 3.) The detective relayed that an inmate in the nearby Brown County jail had claimed responsibility for a sexual assault that Manitowoc County had ascribed to someone else. (Id.) Colborn transferred the call to the Detective Division and, consistent with his own limited position, took no further action. (ECF No. 346-1 at 24.) Other members of law enforcement would later testify that then-Manitowoc County Sheriff Tom Kocourek assured Colborn that authorities had "the right guy." (ECF No. 326 at 5.)
If the call Colborn received was indeed about Steven Avery, which seems likely but is not established, the Sheriff's assurances were utterly misplaced. Manitowoc County did not, in fact, have the right guy. In 2002, using DNA evidence, attorneys for the Wisconsin Innocence Project proved that Gregory Allen, not Avery, was the one behind Beerntsen's violent assault. (Id. at 3.) Thus, on September 11, 2003, 18 years after he was wrongfully convicted, Avery walked free. (Id.)
One day later, at his superior's request, Colborn—now a sergeant in the Manitowoc County Sheriff's Office—authored a statement regarding the phone call he had received eight or nine years prior. (ECF No. 323 at 4.) Manitowoc County delivered that statement to the Wisconsin Department of Justice, which reviewed it as part of its investigation into Sheriff Kocourek's and District Attorney Dennis Vogel's handling of the Beerntsen case. (ECF No. 326 at 4-5.) Wisconsin Attorney General Peg Lautenschlager ultimately chose not to charge Kocourek or Vogel, (id. at 5), but that did not stop Avery from filing his own lawsuit against those he deemed responsible for his wrongful incarceration. (Id. at 6.) In 2004, he sued both the sheriff and DA, as well as Manitowoc County, for $36 million, alleging they had unconstitutionally withheld exculpatory evidence while he remained in prison. (Id.)
While Avery's civil suit was pending, Teresa Halbach, a 25-year-old professional photographer from Calumet County, Wisconsin, disappeared on business in Manitowoc. (Id. at 6.) On November 3, 2005, Halbach's family filed a missing person report, which investigators relayed to on-duty officers, including Sergeant Colborn. (Id. at 7.) As part of his investigation, Colborn visited Avery's Auto Salvage and spoke with Steven Avery himself. (Id.) He also called dispatch to confirm that the license plate SWH-582 corresponded to a 1999 Toyota registered to Halbach. (Id. at 8.) That 1999 Toyota proved critical to the investigation; on November 5, 2005, authorities discovered it on the curtilage of Avery's property. (Id. at 10.) With Avery now a prime suspect, police obtained a warrant to search his trailer and garage, which Colborn, Manitowoc County Deputy James Lenk, and Calumet County Deputy Dan Kucharski executed between November 5 and 8, 2005. (Id. at 12.)
On the final day of the search, in a fit of frustration, Colborn violently shook a bookcase located in Avery's bedroom. (Id. at 13.) Moments later, Lenk discovered the key to Halbach's Toyota lying on the floor. (Id.) The evidence against Avery then quickly began to mount. Not only did police find his DNA on the key, they also found both his and Halbach's blood inside her vehicle and retrieved her cremains from a burn pit on his property. (Id. at 13-14.) Now confident in his case, special prosecutor Ken Kratz officially charged Avery with homicide on November 15, 2005. (Id. at 11, 14.) Weeks later, graduate film students Laura Ricciardi and Moira Demos travelled to Manitowoc and commenced work on a project that would eventually become Making a Murderer. (Id. at 15.)
Avery went to trial on February 12, 2007 in Manitowoc County Circuit Court. (Id. at 18.) His defense attorneys, Dean Strang and Jerome Buting, argued, among other things, that the vindictive Manitowoc County Sheriff's Office, still fuming over Avery's prior exoneration, had planted evidence to ensure conviction of a man they had already deemed guilty. (Id. at 15, 18.) As part of this defense, Strang cross-examined Colborn, challenged his motives, and tried to paint his conduct as unscrupulous. (Id. at 19-20.) Colborn repeatedly denied any wrongdoing. (Id. at 19-21.) In closing argument, Kratz explicitly called the frame-up defense a red herring because, regardless of whether police planted the Toyota key or Avery's blood, the abundance of other evidence sufficed to establish Avery's guilt beyond a reasonable doubt. (Id. at 22.) The jury apparently agreed. It returned a guilty verdict on the charges of intentional homicide and felon in possession of a firearm, and Avery was sentenced to life in prison without possibility of parole. (Id. at 24.)
Ricciardi and Demos spent the next several years editing footage and mapping out the first few episodes of their project. (Id. at 33.) By July 2013, the pair had independently shot 90% of the series and produced rough cuts of the first three episodes. (ECF No. 323 at 37.) One year later, impressed with the work, Netflix licensed Making a Murderer. (Id.) The company appointed Lisa Nishimura, Adam Del Deo, Ben Cotner, and Marjon Javadi to oversee the project. (ECF No. 318 at 1.) This core team provided feedback and suggestions to help shape the look and feel of the series, though Ricciardi and Demos retained responsibility for editing the cuts. (ECF No. 323 at 41.) And according to the Netflix team, none of them reviewed the raw footage of the trial or depositions. (Id. at 40-41.)
The finished product premiered on December 18, 2015 to critical and commercial acclaim. (ECF No. 326 at 35.) In this final cut, Colborn's three-hour trial testimony is reduced to 10 minutes spread across several episodes. (ECF No. 294 at 20.) Dramatic musical flourishes accent particular moments. (ECF No. 285 at 3.) And anachronistic responses are stitched together to give the appearance of a seamless examination. (ECF No. 105 at 44-56.) The episodes also platform Strang and Buting, who, in out-of-court interviews, reiterate their theory that Manitowoc law enforcement officials planted evidence. (ECF No. 287 at 6.) Netflix later released a second season of the program, also produced by Ricciardi and Demos, which focused on Avery's postconviction attorney's attempts to exonerate him. (ECF No. 326 at 43.)
"Summary judgment is appropriate where the...
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