The "record on appeal" is the record of a litigation certified and transmitted to the appellate court by the clerk of the lower court (in this instance, the United States District Court for the Southern District of New York) plus the briefs filed by the appellant (here, plaintiff Robert J. Groden) and the appellee (defendants Random House, Inc., The New York Times, and Gerald Posner, all of whom were represented by a single law firm). The record includes the pleadings, relevant motions and their appurtenant exhibits, the complete transcript(s) of lower court proceedings, and the orders or judgment appealed from. The record and briefs are usually accompanied by an Appendix, a compendium of those portions of the record that counsel wish to highlight for the benefit of the appellate court.
Normally, an appellate court will review only the lower court's conclusions of law, not its findings of fact, especially when a trial has been held on the merits. Summary judgment is an exception to this general rule. Summary judgment allows a party to prevail without a trial if a trial judge supplants the function of a jury and decrees that there are no disputed material facts, and that a binding judgment must be granted on the basis of the legal principles applicable to the dispute. Where questions of fact exist, it is not for the trial judge to resolve them: they are the province of a jury, therefore summary judgment must be denied. In theory, that is.
In The United States Court of Appeals for the Second Circuit, the standard of review for a lower court's grant of summary judgment is de novo. De novo is a Latin term literally meaning "a second time" or "afresh". In practical application, it means that the appellate court will review all of the evidence in the record without regard, and without deference, to the trial court's findings or decision, and it will review that evidence "in the light most favorable to the nonmoving party." Web surfers unfamiliar with law libraries and the commercial electronic legal databases are nonetheless now free to browse the hundreds of appellate court decision on the Web. Such an exercise would reveal that, as a matter of form, and to reassure both the parties and other reviewing courts, the Second Circuit usually announces in explicit fashion the standard of review that it is following, including illustrative "string citations" to previous cases that have employed the same standard of review.
Significantly, in the case of Robert J. Groden v. Random House, Inc., The New York Times, and Gerald Posner, the author of the Second Circuit's Opinion, Chief Judge Jon O. Newman (Earl Warren's former senior law clerk), failed when writing his Opinion to acknowledge the de novo standard of review, and the record on appeal supplies abundant evidence that he did not apply it. I have previously mentioned Judge Newman's intentional failure to mention Mr. Groden's competing book, The Killing of a President; this is another example, but hardly the last that we will encounter, of how the Second Circuit court's Opinion was deceptively framed. We will come to learn that the appellate court paid extraordinary deference to the lower court, and that serious conflicts in the record were likewise ignored. Some of these related to the Random House ad campaign's characterization of Groden's work.
Designed to highlight his main strength as a collector and analyst of photographic material relating to the assassination, Groden's The Killing of a President (TKOAP) was not a narrative work, but a photographic compilation with captions. Essentially, it conveyed in print the content of Mr. Groden's slide and film presentations to public audiences as they had evolved and matured over two decades. During the years preceding publication of TKOAP, his first solo work, Groden had collaborated with two different professional writers on each of two previous books for which he received co-authoring credit: JFK: The Case for Conspiracy (co-authored by Peter Model) and High Treason, co-authored by Harrison E. Livingstone.
The defendants in Groden v. Random House, Inc., et al. claimed to have taken the quote from High Treason, but the ads didn't inform readers of that fact, and High Treason was a collective work. (Likewise, it is also key that at no point did Posner's book accuse Groden of dishonesty, avarice, or knowing deception of the public, and it only purported to discuss his work exclusively in the context of his earlier collective work with Livingstone. Since the quote attributed to Groden was not in Case Closed, someone had to read High Treason to pull that quote for the advertisements. Who? Why? And why did they target Groden, not Livingstone, not both of them together?) Groden and Livingstone each wrote separate portions of High Treason, the latter handling the topic of alleged political conspiracies in the assassination. Groden sent his contribution to Livingstone, who assembled the completed manuscript and had it published. Livingstone was the author of the quote attributed to Mr. Groden in the ads. Both of their names appeared on the cover of the book. Separate copyright notices appeared inside. Livingstone's notice clearly indicated that some of the work included in High Treason was copyrighted solely by him in 1980, and again in 1989. Later paperback editions, which contained editorial additions and revisions written solely by Livingstone, eliminated any notice of copyright in Mr. Groden's name.
"Who killed President Kennedy? It took a combination of the CIA controlled Cuban exiles, Organized Crime, and the Ultra Right Wing, with the support of some politically well connected wealthy men to pull it off."
The record on appeal before Judge Newman and his colleagues shows what Random House, Mr. Posner, and the Second Circuit knew.
The quote does not represent my views about the assassination of President Kennedy. I wish to point out that, before these advertisements appeared, Mr. Livingstone himself had claimed substantial authorship of the book. . . . The fact is that I wrote some portions dealing with the medical and physical evidence; he wrote all of the material concerning theories of political conspiracy.-- Sworn Affidavit of Robert J. Groden dated May 18, 1994 (Groden v. Random House, Inc., et al., Record on Appeal Document No. 11)
At the time these advertisements were published and distributed throughout the United States in "The New York Times", I had a new book scheduled for publication in the Fall to mark the thirtieth anniversary of the Kennedy assassination, entitled The Killing of a President. This fact was well publicized in the publishing trade press, most notably "Publisher's Weekly", which is "the bible" of the industry. I believe that the purpose of this advertising campaign was to inhibit the sales of that book, and it did inhibit the sales of both the book and a companion video, "JFK: The Case for Conspiracy." Moreover, after these advertisements were published, invitations for me to lecture, or to appear on radio and television were drastically reduced below the level of previous years. As a result, I was unable to make the personal appearances that are so essential to an author's promotion of a new book. In addition to the losses of sales that I have already sustained, I believe that such damage is likely to continue.
19. Finally, we have included among these exhibits VIDEO EXHIBIT 22, an excerpt from an interview of me that was contained in a 1988 British television documentary that twice aired in this country before the publication of the advertisement involved in this action. I was asked to comment upon the list of possible suspect organizations that might have been involved in the assassination, and their motives. I did not state that any single one of these groups was actually involved, neither at any time did I ever state that these groups acted in combination with each other in some vast conspiracy, and I carefully qualified my remarks by saying that the scope of the conspiracy was undetermined. This is completely consistent with my long-held and stated belief that we need to find out "the who" of the assassination. Defendant Posner was aware of this, because he refers to the British documentary in his book. The other defendants were either aware or could have become aware, had they properly investigated. This further proves that the defendants were reckless and/or malicious, and that it was entirely false, misleading, and unfair competition through advertising on their part to attribute to me the quote that accompanied my name and photograph in the advertisement for "Case Closed".
20. I repeat that I wrote a portion of the book, "High Treason," but not the one from which the quote used in the advertisement was taken. I sent my portion to Harrison E. Livingstone, who had his own separate manuscript that he had been unsuccessful in publishing since 1980. Livingstone had copyrighted his manuscript with the U.S. Copyright Office. Livingstone assembled the final manuscript of "High Treason" and took it to a publisher. To the best of my knowledge, there was never any formal registration of copyright in "High Treason" in my name with the U.S. Copyright Office, and in subsequent editions of the book all notice of my separate interest has been removed. Livingstone was unknown to the general public before the publication of "High Treason", and he had not established any credibility with the public on the subject of the assassination before that time. On the other hand, I was previously well-known in this field, and I believe this to be the probable explanation of why my name was used above Livingstone's in the authorship credits of the book.-- Sworn Affidavit of Robert J. Groden dated October 12, 1994 (Groden v. Random House, Inc., et al., Record on Appeal Document No. 19)
In that second sworn affidavit included in the Record on Appeal, which was partly intended to qualify an annexed video exhibit as evidence, Groden demonstrated that the advertised quote purportedly setting forth his alleged "conspiracy theory" differed significantly from the consistent position he had taken both before and after the publication of High Treason. Groden was referring to a 1988 British television documentary, which Posner discusses on page 468 of the original hardcover edition of Case Closed. The documentary, "The Men Who Killed Kennedy", was shown in the United States almost simultaneously with the publication of the first hardcover edition of High Treason on the thirtieth anniversary of the assassination, with a new voice-over narration by American broadcaster Bill Kurtis on the Arts & Entertainment cable network. I will dedicate the post immediately following this one to what Groden said there because a lengthy excerpt of that video was incorporated into the record of Groden's litigation in both the United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit, and it merits its own detailed analysis. However, just as a "teaser", one of the things Groden said in that interview was: "The fact of the assassination conspiracy is beyond doubt. Only the scope is in question." (VIDEO EXHIBIT 22) (ROA Document No. 19 (Videocassette).
Suffice it to say, until my next post, that Mr. Groden had no theory about political authorship of the Kennedy assassination, and people who have been familiar with his participation in the controversy for decades were well aware that he had publicly refrained from speculating about who was responsible. The body of work for which he was principally known mainly concerned the photographic and film evidence. He is best known for revealing his optically enhanced version of the Zapruder film to the public during the 1970s. The film had previously been sequestered from public view by its former owner, Time-Life, Inc. Groden became the critics' acknowledged unofficial archivist of photographic evidence following the untimely death of collector Richard Sprague of Hartsdale, New York.
The defendants offered no proof that Groden had ever propounded a conspiracy theory similar to the one they affixed to him. They produced no affidavits by anyone possessing personal knowledge to the contrary. Indeed, besides an unsworn declaration by defendants' counsel, they submitted no competent or admissible evidence whatsoever to contradict Groden's sworn statements in the record. I will expand upon this point when I discuss the proceedings held before the trial judge in the lower court.
Let it suffice for now that the issue pertaining to the quote was not so much where it came from, but whether the manner in which Random House presented it to their audience was misleading, since it contained no reference to its source, nor any reference to Livingstone. Neither the defendants nor the courts were ever able to offer any authority for the notion that one named co-author of a collectively written book might be held solely accountable for its entire contents.
Next: "VIDEO EXHIBIT 22". Groden's interview in "The Men Who Killed Kennedy" documentary series, which Posner used and cited as a research source for Case Closed.
