Plaintiff Donnell Baines contends that the Daily News defamed him in an article which described the response of a spectator in the courtroom when the jury returned guilty verdicts against Mr. Baines on charges including rape, assault, coercion and unlawful imprisonment, acquitting him on one count of sex trafficking:1“As the jury said guilty 13 times, Barbara put her hands over her face and choked back tears, her hands shaking…She stayed as the lawyers packed up, watching closely as court officers took Baines out of the courtroom…”In the article which appeared in the Daily News on October 25, 2012,2 Ms. Doe said she had met Mr. Baines in the East Village six years earlier when she was down on her luck, was lured back to his apartment on East 77th Street and over a period of 24 hours was beaten, raped and threatened with dismemberment. She said Baines had beaten her with a rubber mallet and slats from his window blinds; the Daily News included a photo of a mallet.The article indicated that “A lawyer for Baines said her client does not know Barbara, but sources said prosecutors found her credible.”* . * . *Each side has a pending motion relating to discovery. Mr. Baines has brought a motion (No.010), dated August 13, 2018, to compel disclosure. For their part, by order to show cause, dated September 14, 2018, the Daily News defendants seek a stay of discovery along with a denial of any pending motion (without prejudice) until a conference takes place. Such relief was requested by defendants “in light of the exceptional circumstances presented by this case…[including] the scheduling problems caused by Mr. Baines’ incarcerated status, which makes timely communication difficult…”On that note, the above motions were returnable and set down for oral argument on January 29, 2019. As the Court wrote to the parties on February 8, 2019: “A hearing in this matter was scheduled for January 29. It did not go forward, apparently because of the logistics of setting up a telephone link from Five Points. At this time, rather than reschedule, I will review the submissions and likely write thereon.”Donnell Baines then wrote to the Court on February 20, setting out the procedural history from his vantage and asserting that he was never served with defendants order-to-show-cause papers.* . * . *Justice Lucy Billings issued two decisions in 2015 (51 Misc 3d 229 and 2015 WL 13699421), and Justice St. George issued one in 2018 (59 Misc 3d 1207[A]).In Billings I from July 13, 2015, the Court denied Baines’ demand for discovery (he had not yet supplied a bill of particulars) and his request to breach the reporters shield law (§79-h of the Civil Rights Law) as well as defendants’ motion to dismiss per Civil Rights Law §74. The Court said, “Plaintiff concedes in opposition to their motion that their articles reported on issues of legitimate public concern, so that, even to be liable for an untrue report, defendants must be grossly irresponsible in their reporting.”Justice Billings’ second decision picks up the thread that of the article was of legitimate public concern implicating gross irresponsibility. The Court ruled that “Even if the Daily News defendants found no reason to doubt the veracity of Jane Doe’s account, they have failed to present documentary evidence either establishing that prosecutors found Jane Doe credible or detailing the measures defendants took to ensure responsible information gathering or independent confirmation of her account.”Three years later, Justice St George granted, in part, Baines application to amend his complaint, including the addition of one named Daily News staffer. The Court restated Justice Billings ruling that the case involved a matter of legitimate public concern subject to the standard of gross irresponsibility.Justice St. George set forth the remaining causes of action for defamation as follows: 1) Jane Doe’s comments about Baines to Daily News reporters Janon Fischer and Tracy Connor; 2) all Daily News defendants for publishing the October 25, 2012 article; and 3) statements to the Daily News defendants by the “John Doe confidential source,” believed to be an employee of the Manhattan district attorney’s office.The three prior decisions do not address whether Baines was a “limited-purpose public figure” subject to an actual malice standard. On that concept, consider McKee v Cosby, 874 F3d 54 (1st Cir 2017), cert denied 2019 WL 659764. Kathrine McKee had accused William (Bill) Cosby of raping her in an interview that was conducted by a Daily News reporter and published on December 22, 2014.In response, Mr. Cosby’s lawyer Martin Singer emailed a six-page letter to the Daily News. Plaintiff alleged that the lawyer leaked copies of it to the media, and it was quoted from widely. McKee primarily challenged as defamatory, statements in the letter that McKee in general, and her particular rape allegations, lacked credibility. Further, McKee claims that the latter deliberately misquoted her or took quotes out of context to defame her. The First Circuit described as most serious that Ms. McKee has admitted, “I had to do a lot of lying” to work in that era in Las Vegas. The Singer letter goes on to quote plaintiff’s sister as describing her as “always wild,” and falsely implied that McKee had a criminal record.Ms. McKee’s case turned on whether she was a limited-purpose public figure. “An individual becomes a ‘general-purpose’ public figure if he ‘achieve[s] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.’ Alternatively, an individual becomes a ‘limited-purpose’ public figure if he ‘voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues,’ the scope of which is determined by the ‘nature and extent of [his] participation in the particular controversy giving rise to the defamation [citations omitted]‘” (874 F3d at 61). In either case, the standard for defamation is actual malice.The Court said that by purposely publicizing her rape allegation against Cosby, McKee injected herself to the ‘forefront’ of the controversy seeking to influence its outcome. The First Circuit dismissed McKee’s case; indicating that “even if we treat the Singer letter as asserting both that McKee lacks credibility and that McKee’s rape allegations are not truthful, Singer adequately disclosed the non-defamatory facts underlying these assertions, thereby immunizing them from defamation liability” (id. at 63).There are obvious differences between the McKee and Baines cases — both factually and structurally. As a defendant tried in open court for a number of felonies, a trial covered by other media besides the Daily News, Mr. Baines on the surface seems to be more of a public figure than Ms. McKee, although the concept of limited-purpose public figure may not comprehend him.The McKee court stated that whether an individual is a limited-purpose public figure is a question of law (id. at 61); this Court requests submissions from the parties on whether Mr. Baines was a limited-purpose public figure.* . * . *NOW therefore, in view of the foregoing,IT IS ORDERED, that motions # 009 and # 010 are denied without prejudice; andIT IS FURTHER ORDERED, that the parties provide the Court with submissions on the issue of whether plaintiff Donnell Baines was a limited purpose public figure; such to be postmarked to the extent possible at the same time, namely, May 8, 2019.Dated: March 4, 2019
