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Scoring the Letterman trial

Wednesday November 11, 2009 8:54 AM By Verne Gay

Photo credit: Getty Images

 

  I just finished watching Gerry Shargel and Daniel Horwitz on "The Today Show" - the first representing Joe Halderman, the latter, Dave Letterman.

 And it got me to thinking, as it was supposed to, of course:
 
 What if Shargel's got a valid case here?

 It's not beyond the crazy realm of possibility. Shargel's a pretty smart guy, and while I assume as a seasoned defense lawyer he knows how to dress up a pig in fancy clothing, I think I can also assume that he realizes he has to take this pig in front of a jury. The last thing he wants to do is get laughed out of court.

  And while the judge will almost certainly reject the motion to dismiss - 95 percent certain - I kind of doubt he'll laugh when he reads the brief either.

  Here's the heart of the matter, as told by Shargel to Meredith a few minutes ago:

 Shargel:  "It's plain and simple. Mr. Halderman came into the possession of certain information about [Letterman's] conduct and of others, and that falls within the umbrella of intellectual property. He was a writer of scripts that won Emmy awards, an accomplished writer...he had the absolute constitutional right to sell that property and could have sold by selling a screenplay or book, or selling information to entertainment outlets or whoever was going to pay. He had the absolute right to go to David Letterman to say, this could be embarrassing - do you want to buy it. Offering a sale to Letterman was something he was entitled to do. It's clear he had the right to sell the story.

  "It's classic blackmail [if] the only value is the extortion itself, in a situation where David Letterman is presented with embarrassing information and if that person doesn't pony up...then there is no other value...This is a case where there is value..."

  Horwitz: "If you look at the totality of the facts that the district attorney has laid out, including writing 'your world is about to collapse' and demanding a big chunk of money and 'get to me in two hours'...That doesn't sound like anyone who's engaged in a commercial transaction. What Gerry would like to ascribe is the famous person exception - if you happen to be a celebrity, it's open game season on you."

 OK, friends, let's break this down, and see if Joe's got a case and - can you imagine! - whether he might even get off. (And what an embarrassment to Dave that would be.)  

First consider. We don't have all the facts here, and certainly much much more would come in court - and anything or anyone could turn a jury's collective (hey! I've watched "L&O" for twenty years too. I know how this works.)

 So let's start. First, the argument, then the score:

 Shargel:  "Mr. Halderman came into the possession of certain information about [Letterman's] conduct and of others, and that falls within the umbrella of intellectual property."

 My point: "Intellectual property" is a loaded term and Shargel would probably be asked to define it during the trial. There are two (broadly speaking) types - patents and copyrights. Halderman's "information" about Letterman falls into the latter. Did Halderman apply a copyright to the material before presenting to Letterman (seriously - he'll get asked that, as it pertains to ownership). Did he obtain it legally, or via subterfuge, which could drift into a shady area. He did read diary pages; did he own those, or someone else, and if "someone else," were they given freely?   I think this could cause trouble for Halderman.
 
Score: Dave 1, Haldy, 0.

 Shargel: "He had the absolute constitutional right to sell that property..."

 My point: Oh boy, I know as much about constitutional rights as I do about patents! But did he have a "constitutional right?" And does this right apply to all property? Of course not - and supermax prisons have cells that are occupied by spies who thought they could sell their "property." But this isn't selling State secrets. It's selling a screenplay or book - I'll call it that just to play along - about Letterman's love life. If he legally owns the information, than Haldy may have the right.

Score: Dave 1, Haldy 1.

 
 Shargel: "And could have sold by selling a screenplay or book, or selling information to entertainment outlets or whoever was going to pay...."

  My point: There's no doubt Shargel's right here. It happens all the time, and the gossip tabs, etc. have bounteous budgets to pay for such swill. Halderman COULD have approached (say) the Enquirer if Letterman had turned him down.

 Score: Dave 1, Haldy 2.

  
  Shargel: "Offering a sale to Letterman was something he was entitled to do."

 My point: Oh well, yeah, sure. It sounds reasonable, but a good lawyer in court will rip this statement into a million tiny bits and scatter them about the jury members' heads. In a legit transaction, do you ask the limo driver to put the material in the back seat? Do you tell the prospective client he's got two hours to respond or else? Do you leave evidence that you've got the goods? There's not a fine line between a legit transaction and extortion. It's a very clear line. 

 Score: Dave 2, Haldy, 2.

 Shargel: "It's classic blackmail [if] the only value is the extortion itself, in a situation where David Letterman is presented with embarrassing information and if that person doesn't pony up..”

 My point: I dunno. This sounds bogus to me. Why’s that “classic?” Aren’t you still threatening to take it elsewhere, and ruin the guy’s career?

 Score: Dave 3, Haldy, 2.

 Shargel: "There was discussion about tax issues..."

 My point: This didn't come up in Shargel's summation, but he noted it later to Meredith - that during their taped chit-chat, talk about tax consequences, and tax ID numbers and what not came up. Shargel's point is that why would you talk about tax stuff if this were a classic shake-down. He's got a point there, buttressed by the strongest point of all - that Halderman got a physical check. If shakedown, wouldn't his client have asked for the money to go to some Bahamian account?

Score: Dave 3, Haldy, 3.

 
Horwitz: "If you look at the totality of the facts that the district attorney has laid out, including writing 'your world is about to collapse'

 My point: This is a subset of the above "offering a sale," but it's a terribly strong one, and I've got to believe that much of what was laid out before the grand jury - which Shargel has not had so much as a glimpse at - goes into hard detail on this. Shargel still doesn't know what the “totality of facts” is because he hasn't seen the minutes. This is the area of greatest danger for Halderman.

 Score: Dave 4, Haldy, 3.

Horwitz: "What Gerry would like to ascribe is the famous person exception - if you happen to be a celebrity, it's open game season on you."

 My point: And such is the peril of celebrity-dom. People like Letterman, or - better example - Oprah go to great lengths to keep their "stories" their own. If you work, let's say, for one of these stars, you sign non-disclosure forms; can't talk to the press; not allowed to write articles about your place of employment; and so on. If - say - you get fire, you are still enjoined from selling what you know. In other words, celebrities, especially huge ones, make damn certain no one has a right to their story. But the larger point is that it’s always open season on celebrities, and always has been. Information about their lives has genuine marketplace value - as opposed to, say, information about mine, which I'm sorry to report has none.

FINAL SCORE:  Dave, 4, Haldy, 4.

  In summation...I think, your honor, that the score is deceptive. Letterman/Howitz have the stronger case, if only for the simple reason that a grand jury indicted alread, and the grand jury had a lot of information that Shargel did not have. Was the DA or jury swayed by Letterman's celebrity? Maybe, maybe not. But...I also think Halderman has a case. Maybe not a great one, and maybe not even a winning one, but based on what I’ve heard to far, there seems to be some substance here.  The big question is - is there enough substance for Dave to want to sue for peace before a trial?

 Now, I've got to Jack McCoy on the phone to see what he's got to say...

 

Tags: gerald shargel , david letterman , joe halderman , daniel horwitz