A jury of 10 women and two men today were deliberating the civil case brought by Juneau's Karen Carpenter against nationally syndicated radio talk-show host Tom Leykis and his Los Angeles-area production company.
The jury is deliberating 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.
In closing arguments heard Monday, Carpenter's attorney 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 defendants' 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 told the jury. "She shouldn't walk away with any money."
Juneau Superior Court Judge Patricia Collins didn't rule on the defense's motion to dismiss the claims. But, in accordance with the judge's previously expressed concerns about free speech, Collins' jury instructions limited what speech jurors could consider in deciding the case. Deliberations began on Monday.
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 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. "All of the therapists took anything Ms. Carpenter said at face value. They didn't question anything," Longenbaugh told the jury.
Carpenter first called a lawyer's office an hour into the four-hour radio broadcast and saved a tape of her phone messages and faxes received July 24, Longenbaugh said.
Carpenter is seeking about $16,500 in compensation for medical expenses and lost income and about $100,000 in "pain-and-suffering" damages. The jury was instructed not to award compensation, or reduce it, for those losses if Carpenter could have avoided them by taking reasonable efforts.
Carpenter also wants an unspecified amount of punitive damages.
Alaska law generally limits punitive damages to $500,000. But awards can go up to $7 million if the plaintiffs can show 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, but didn't take responsibility for his actions.
"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 punitive damages in the millions to say to Leykis: "That's enough."
If the jurors find that punitive damages are justified, the judge will give them instructions on how to set the amount.
Ten of the 12 jurors must agree on a claim to find a verdict in favor of Carpenter, but it doesn't have to be the same 10 jurors for each claim. The jury can award Carpenter compensation or punitive damages if it renders a verdict in her favor on any one of the claims.
But jurors must follow a higher standard of proof to award punitive damages and 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 claims are so complicated, with numerous terms defined, that it took Judge Collins 40 minutes to read the instructions to the jury Monday.
But a key point was Collins' instruction about speech protected by the Constitution. Mauri Long, one of Carpenter's attorneys, objected to the instruction, saying that it overemphasized one element of the law.
Collins told the jury it could not consider comments in the broadcast unless they were "speech intended to provoke a hostile reaction under circumstances where a clear and present danger of immediate violence exists;" or the comments were private factual information about Carpenter that "would be highly offensive to a person of ordinary sensibilities."
Attorney Long said she objected to Collins' definition of private facts, which excludes information legally available to the public or the media.
"Virtually no fact would fall into that in this day and age," Long said. "In this case it is a standard that cannot be met."
Each of the claims has several elements that must be met for Carpenter to win a favorable verdict. But the standard of evidence is that something 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."
The invasion of privacy charge requires the jury to decide, among other elements, whether the information disclosed - such as her name, city, fax number and perhaps her phone number - was not known to the public and that the disclosed facts were "highly offensive."
The jury this morning reheard a recording of evidence that relates to the third claim, that of intentionally destroying or concealing evidence - a tape of the July 24 broadcast.
Carpenter's attorney Brown said a lawyer for Carpenter requested the tape in December 1998 from Leykis' production company, Westwood One, and that the company's legal department knew of the request, but the tape was never turned over to Carpenter.
The jury could find that the tape was destroyed or concealed by Westwood One through negligence, not intention. But if the negligence claim is the only verdict in favor of Carpenter, she wouldn't be entitled to punitive damages.
Eric Fry can be reached at firstname.lastname@example.org.