ST. PAUL -- With jurors at an impasse a week into deliberations in Jesse Ventura’s defamation trial, lawyers on both sides agreed to take a gamble: Lower the threshold for a verdict and hope the numbers fell in their favor.
For the former Minnesota governor, it turned out they did.
In an 8-2 verdict Tuesday in U.S. District Court in St. Paul, the jury found Ventura had been defamed by late Navy SEAL-turned-author Chris Kyle and awarded him more than $1.8 million for harm to his reputation and unjust enrichment.
Ventura’s attorneys said the outcome vindicated his contention that Kyle fabricated a story about him in the 2012 best seller “American Sniper.” But the former Navy frogman’s reputation was likely tarnished forever among a generation of SEALs, they said, and the trial produced “no real winners.”
Attorneys for Kyle’s estate said his widow, Taya, was surprised and upset by the verdict. They said they’ll consider their legal options before their next move.
Neither Ventura nor Taya Kyle was present at the courthouse Tuesday.
The verdict was delivered three weeks after the trial began, and a week and an hour after the jury of six men and four women began deliberations.
The case hinged on a subchapter of Kyle’s autobiography about a military career that made him the deadliest sniper in U.S. military history. He claimed in the book that he punched out a celebrity, dubbed “Scruff Face,” in 2006 in a bar in Coronado, Calif.
In the account, Scruff Face was badmouthing fallen soldiers at a war hero’s wake and said the SEALs “deserve to lose a few” in the Iraq war. Kyle wrote that he tried to get the man to back off, then leveled him with a punch after Scruff Face took a swing at him.
Ventura said the story never happened and sued Kyle after the author identified him as Scruff Face in promotional interviews for the book.
Kyle and a friend were shot to death in February 2013 at a Texas gun range, allegedly by a Marine veteran whom they were trying to help cope with post-traumatic stress disorder. Ventura continued the case against Kyle’s estate, which is in his widow’s care.
During the trial, witnesses from the bar on the night in question offered conflicting accounts. Some said they saw Ventura get punched or picking himself off the floor. Others said they saw nothing of the kind and didn’t believe he would disparage military personnel as Kyle described.
For Ventura to win, the jury had to find three things: That Kyle’s story was defamatory, that it was false and that Kyle knew it was false or published it with serious doubts about its veracity.
On Monday, the jury sent a note to Judge Richard Kyle, no relation to the author, saying they didn’t think they could reach a unanimous verdict. Kyle asked jurors to give it one more try to avoid a mistrial - and a potentially costly repeat.
On Tuesday, the judge offered attorneys on both sides another solution: accept a verdict that was less than unanimous.
Neither camp knew where the jury stood or what kind of split would produce a decision. Ventura’s attorneys were willing to accept a verdict from as few as six jurors; the Kyle estate wanted at least eight.
The judge first told jurors they could return a verdict with nine votes, according to notes made public after the trial. After they told him that wouldn’t get them anywhere, he told them they could get by with eight.
David Olsen, one of Ventura’s attorneys, acknowledged the move was a risk. But he said his side was willing to take it because it believed it had presented a strong case.
Both sides agreed to accept a split verdict, and within a few hours, jurors delivered their decision.
They awarded Ventura $500,000 for damage to his reputation and career caused by defamation. They also awarded him $1.3 million for unjust enrichment - money they found Kyle made by exploiting Ventura’s name and reputation.
The second amount is a nonbinding advisory award. The final unjust enrichment payout is up to the judge, who is likely to review further arguments from the lawyers before he decides.
Libel insurance will cover the defamation award, said Taya Kyle’s attorneys. The unjust enrichment claim isn’t covered by insurance and will be drawn from the book’s royalties and Kyle estate, they said.
Ventura served on the Navy’s Underwater Demolition Team, a unit that later merged with the SEALs. Olsen said his client has been ostracized from that community since publication of Kyle’s book and might never regain his standing.
But “the jury did tell the world Chris Kyle’s story was a lie,” he said.
Kyle’s attorneys argued Ventura sustained far more damage to his reputation by pressing on with the lawsuit after Kyle died than the book ever could have inflicted - a claim echoed by several witnesses throughout the trial.
John Borger, an attorney for the Kyle estate, called the verdict disappointing in light of what he believed was compelling testimony backing Chris Kyle’s story.
Like Olsen, Borger said his team “had no idea” where the jury stood when the parties agreed to a non-unanimous verdict.
“That was a strategic call which seemed appropriate at the time,” he said.
Taya Kyle, who lives in Texas, left the courthouse last week to be with her family. Her attorneys notified her of the verdict by phone.
“She was very surprised and obviously upset,” Borger said.
Jurors declined to speak to reporters as they left the courthouse. The jury’s forewoman and one man identified themselves in court as the dissenting jurors.
Notes passed between the jury and the judge, unsealed after the verdict was delivered, offered some insight into their proceedings. At one point, jurors asked if there was a legal definition of “serious doubt” - referring to the question of whether Kyle knew or suspected the story was false.
There is none, the judge said; it was up to them to weigh the matter using their own common sense. He also denied requests to review video of Kyle and Ventura’s depositions.
Later, the jury asked if they had to determine whether Kyle was telling the truth based on the evidence, or whether he simply thought he was telling the truth.
In response, the judge reiterated the jury instructions and reminded them the burden of proof was on Ventura rather than Kyle.
Ventura’s attorneys said they will ask HarperCollins, the publisher of “American Sniper,” to remove the Scruff Face section. If the company doesn’t, it will publish the book at its own risk, they said.
A HarperCollins spokeswoman said in a statement that the company was “surprised and disappointed” by the verdict and will support Taya Kyle.
“We steadfastly remain honored to be Chris Kyle’s publisher,” the statement said.
“Sniper” co-author Jim DeFelice said in a phone interview that he stands by the testimony he gave during the trial - that the book was true - and by Kyle.
“He was an honest man,” he said.
The fact that there were different accounts of the story doesn’t mean it didn’t happen, he said.
William McGeveran, a University of Minnesota law professor who has closely followed the case, said the decision to accept a split verdict was a reasonable move for both sides. It won’t affect their ability to appeal the case, he said, and gave each a better chance of winning outright.
McGeveran said he plans to teach the case - full of legal twists and turns - as a model for his fall course on civil law.
In light of the high hurdles facing public figures like Ventura in defamation cases, he said, the verdict was “shocking.”
After his upset in the 1998 gubernatorial race, “this is the second-most surprising victory Jesse Ventura ever won in Minnesota,” he said.
The Pioneer Press is a media partner with Forum News Service.
