Yorie Von Kahl was convicted of second degree murder in the 1983 fatal shooting of two deputy U.S. marshals in North Dakota. Kahl was sentenced to life in prison, but he scored a recent win from a Washington federal judge who found that Kahl could proceed with a libel suit against The Bureau of National Affairs, Inc. (BNA) over a summary of his case published by the company.
In a March 30 opinion, U.S. District Judge Richard Roberts denied BNA's motion for judgment and for reconsideration of a September 2011 ruling in which he rejected summary judgment motions filed by both sides. Roberts found that Kahl offered enough evidence of possible defamation to survive this stage of the case.
A BNA spokeswoman declined to comment about the case. The company is being represented by Deborah Israel and Cathy Hinger of Womble Carlyle Sandridge & Rice. Kahl, who is imprisoned at the U.S. Penitentiary in Terre Haute, Ind., is representing himself.
According to court filings, the Criminal Law Reporter, a BNA publication, ran a summary of Kahl's post-conviction petition for writ of mandamus to the U.S. Supreme Court in August 2005. In summarizing his 1983 sentencing, the piece stated that he "showed no hint of contrition" and that he made statements to the press that the killings were justified by religious and philosophical beliefs.
After Kahl complained to BNA that the summary inaccurately described what happened at sentencing, BNA ran a clarification in 2007 explaining that it was summarizing the trial judge's ruling. After suing BNA in 2009, Kahl presented a copy of the sentencing hearing transcript and argued that it showed that BNA's summary was based on an excerpt of the prosecutor's statements at sentencing that Kahl had included in his petition, and not the judge's ruling.
Kahl's petition included an excerpt from the transcript in which the prosecutor said that when it came to Kahl, "there is not even a hint of contrition." The prosecutor also referred to statements from trial and in the press that he argued indicated that Kahl believed the killings were justified.
BNA argued that Kahl's petition gave the impression that the excerpted comments were made by the judge, and that the Criminal Law Reporter piece provided an accurate summary. The company argued that it was only reporting on the petition and should be protected by the "fair reporting" principle, which immunized the press against defamation claims for accurately reporting on information from public documents or proceedings. BNA pointed to a 2011 opinion from the D.C. federal court in Carpenter v. King finding that precise attribution wasn't required for the privilege to apply.
BNA also said in its filings the judge did address Kahl's contrition when he said that he had a hard time understanding the "lack of concern" that Kahl and his co-defendants expressed for the victims and their families. According to the transcript, the judge didn't address the prosecutor's claim about statements to the press.
Kahl argued that he was defamed because the piece made it seem as though the judge found as fact that he "showed no hint of contrition" and made statements to the press about the killings being justified. He blamed the summary for the Supreme Court's denial of his petition.
Roberts affirmed his original ruling that regardless of whether the source of the excerpted statements was clear in Kahl's petition, BNA's summary was written in a way that made it seem as if the description of Kahl was part of the judge's findings. Robert said BNA could use the fair reporting privilege defense moving forward, but that it didn't apply at the summary judgment phase.
Although Kahl has a criminal history, Roberts said it wasn't enough to make him "libel proof," as BNA had argued. "A trier of fact reasonably may conclude that such statements make plaintiff appear odious, infamous or ridiculous," Roberts wrote. Kahl's "criminal history is relevant and ultimately may lead a trier of fact to award plaintiff only nominal damages or no damages at all," the judge wrote. "But, his criminal history alone is not a basis to curtail these proceedings at this stage."
BNA has also argued that Kahl failed to allege facts showing that the Criminal Law Reporter piece caused special harm, but Roberts said it was too early for him to decide that issue. "Based on the current, and scant, record of this case, the Court is not prepared to conclude that the complaint 'stops short of the line between possibility and plausibility of entitlement to relief,'" he wrote. He did, however, dismiss Kahl's claims for libel per se, finding that the summary didn't "falsely impute that plaintiff has been accused of a crime."
Kahl is asking for money damages starting at $10 million per count, along with a correction.