A jury of 10 women and two men this afternoon began deliberating the civil case of Karen Carpenter versus radio talk show host Tom Leykis and production company Westwood One.
One of Carpenter's attorneys, Ray Brown, told the jury the disputed broadcast "was a verbal sexual assault" and asked jurors to award enough punitive damages to deter Leykis in the future.
But the defendant's attorney, Leslie Longenbaugh, said comments on the Leykis show about Carpenter didn't go beyond "mere insults," which are protected by the First Amendment.
"She hasn't proven any part of her case," Longenbaugh said. "She shouldn't walk away with any money."
Juneau Superior Court Judge Patricia Collins didn't rule today on the defense's Friday motion to dismiss the charges. But, intending to protect free speech, Collins' jury instructions did limit what speech jurors could consider in deciding the case.
The jury will deliberate on three claims: the defendants intentionally inflicted severe emotional distress on Carpenter in a July 24, 1998, broadcast, invaded her privacy and intentionally destroyed evidence.
Carpenter said she was traumatized by the broadcast, in which she was derided and sexually taunted, and by calls and faxes to her home that night. She said that she feared for her safety. She was diagnosed by three therapists with the serious illness of post-traumatic stress disorder.
"It robbed her of her life," attorney Brown said. "It robbed her almost of her emotional sanity."
But defense attorney Longenbaugh said Carpenter faked her illness to get money in a lawsuit. Carpenter first called a lawyer's office an hour into the four-hour radio broadcast, the attorney said.
"All of the therapists took anything Ms. Carpenter said at face value. They didn't question anything," Longenbaugh said of the diagnoses.
Carpenter is seeking about $16,500 in compensation for medical expenses and lost income, about $100,000 in "pain-and-suffering" damages, and an unspecified amount of punitive damages.
Alaska law generally allows punitive damages to $500,000. But awards can go up to $7 million if the plaintiffs can show that the defendants were motivated by financial gain and knew of the harm their actions caused.
Brown said Leykis considered himself a cult figure who could direct his listeners' actions. Brown has argued that Leykis encouraged listeners to harass Carpenter, and allowed callers to do so. But Leykis didn't take responsibility for his actions, the attorney said.
"That's the huge, huge danger here," Brown said. "Because he'll do it again and again and again until he's stopped." He urged the jury to award enough punitive damages to say to Leykis: that's enough.
In regard to Carpenter's claimed economic and noneconomic losses, such as pain and suffering, the jury was instructed not to award compensation if Carpenter could have avoided the losses by taking reasonable efforts.
Ten of the 12 jurors must agree on a charge to find a verdict in favor of Carpenter, but it doesn't have to be the same 10 jurors for each charge. The jury can award Carpenter compensation or punitive damages if they render a verdict in her favor on any one of the charges.
But jurors must follow a higher standard of proof to award punitive damages, and they must find that the defendants' actions were outrageous, which includes "acts done with malice or bad motives or that demonstrated reckless indifference to the interests of others."
The charges are so complicated, with numerous terms defined, that it took Judge Collins 40 minutes to read the instructions to the jury.
But a key point was Collins' instruction about speech protected by the Constitution.
She told the jury it could not consider comments in the broadcast unless it was "speech intended to provoke a hostile reaction under circumstances where a clear and present danger of immediate violence exists;" or it was private factual information about her that "would be highly offensive to a person of ordinary sensibilities."
Each of the charges has several elements that must be met for Carpenter to win a favorable verdict. But the standard of evidence is that a charge is more likely true than not, a "51 percent" standard.
In other ways the jury instructions set a high hurdle for Carpenter to win a favorable verdict. The charge of intentional infliction of emotional distress requires that the defendants' conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community."
Eric Fry can be reached at firstname.lastname@example.org.