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March 17, 1955

Charles S. BERNSTEIN, Plaintiff,

The opinion of the court was delivered by: KEECH

This case is before the court on the defendant's motion for summary judgment in two consolidated actions for invasion of privacy.

Both actions arise from the same undisputed facts. In 1919 plaintiff, Charles S. Bernstein, was convicted of bank robbery in Minnesota and sentenced to imprisonment for forty years. After serving nine years, he was paroled and pardoned. In 1933 in the District of Columbia, plaintiff, under the name Charles Harris, was tried and convicted of first-degree murder and sentenced to death by electrocution. In 1934 the conviction was affirmed, Harris v. U.S., 63 App.D.C. 232, 71 F.2d 532, and a petition for certiorari denied by the Supreme Court, 293 U.S. 581, 55 S. Ct. 94, 79 L. Ed. 678. Through the efforts of a number of interested persons and committees working in plaintiff's behalf, *fn1" and partly as the result of the work of Martha Strayer, *fn2" a reporter on the Washington Daily News, in 1935 the death sentence was commuted to life imprisonment. In 1940, after plaintiff had served five years at various federal institutions, he received a conditional release from his life sentence, and in 1945 a Presidential pardon.

 Plaintiff alleges that, 'Commencing in 1940, and thereafter, * * * (he) was no longer in the public eye; * * * lived an exemplary, virtuous, honorable, righteous, quiet and private life, free from the prying curiosity which accompanies either fame or notoriety; * * * shunned and avoided notoriety and publicity; * * * never exhibited or sought to exploit his name, personality or the incidents of his past life for money, profit, or commercial gain; * * * assumed a place in society, knew many people and made many friends who were not aware of the incidents of his earlier life.'

 Plaintiff's deposition shows that from the time of the trial until 1940, when plaintiff secured conditional release, his story was given much publicity by the newspapers and others working on this behalf. Subsequent to his release in 1940, he obtained government employment in the District of Columbia, holding various positions and attaining Civil Service Grade CAF-11. In 1945, this employment ended, and thereafter, from 1945 to 1951, he lived in Front Royal, Virginia, operating a 'resort lodge.' In February, 1953, some time after the filing ot these actions, plaintiff again secured government employment in the District, rooming in Washington but still maintaining his family home in Front Royal, Virginia.

 In 1936 or 1937 a detective story magazine carried an article on plaintiff's case. *fn3" In 1948 a radio program told plaintiff's story, using Martha Strayer's name, in a fictionalized version, but so similar to the facts that plaintiff and several others identified the story as his. *fn4"

 On January 18, 1952, the defendant NBC telecast 'live' over 39 stations in its network a television program prepared by Prockter Television Enterprises, Inc., sponsored by American Cigarette & Cigar Company *fn5" and advertising Pall Mall cigarets, entitled 'The Big Story.' This program, classified by the Federal Communications Commission as a network commercial entertainment program, was a fictionalized dramatization based on the plaintiff's conviction and pardon, and lauding the efforts of Miss Strayer, the Daily News reporter, toward securing commutation of plaintiff's sentence. The same program was telecast over twelve other NBC network stations by means of a kineoscope recording on January 29, 31, February 1, 2, 3, and 8, 1952. The only true names used were those of Martha Strayer, the Washington Daily News, the President of the United States, and the District of Columbia. Over forty-three of the NBC stations telecasting 'The Big Story,' it was announced a week prior to the telecast here involved, that the following week's program would tell the true story of how Martha Strayer fought to save the life of an innocent man convicted of murder. *fn6" On January 7, 1952, NBC issued a press release concerning the program. *fn7" Neither the television announcement nor press release mentioned plaintiff's name.

 Plaintiff alleges that, although his true name was not used in the telecast, the actor who portrayed him resembled him physically and plaintiff's words and actions were reproduced both visually and aurally, creating a portrayal of plaintiff recognizable to him and to his friends and acquaintances, and clearly identifying plaintiff in the public mind. *fn8"

 Prior to the telecast, Prockter Productions, Inc., obtained a release or waiver of the right of privacy from Martha Strayer to use her name and to portray her in connection with 'The Big Story,' but no such waiver or release was obtained from plaintiff.

 About five days before January 18, 1952, plaintiff learned through his wife's cousin that NBC would carry a television program based upon his past life. *fn9" He thereupon called the National Broadcasting Company in Washington and on January 17 and 18, 1952, wrote letters to the Company and its manager in Washington, requesting defendant not to broadcast the program. *fn10" The program was telecast as scheduled.

 Plaintiff alleges that the telecast of this program constituted 'a willful and malicious invasion of * * * (his) right of privacy as recognized by the laws of New York, Ohio, Illinois, California, Connecticut, Massachusetts, Rhode Island, Pennsylvania, Delaware, Maryland, Virginia, Wisconsin, Alabama, Tennessee, Iowa, Minnesota, Washington, Texas, Michigan, Missouri, Florida, Utah, Georgia, West Virginia, Kentucky, Nebraska, New Jersey, and Indiana,' and the District of Columbia, and that by reason of the telecasts 'plaintiff's personality has been violated by being exposed, exhibited, and sold to the public; plaintiff has been subjected to the inquisitive notice of the general public to the injury of his personality, to the outrage of the finer sentiments of his nature and to the humiliation of his self-respect; and plaintiff, a private personality and having an individual personality, has thus been made notorious and conspicuous to the public and has been singled out for and identified to the public notice and attention, which is utterly obnoxious to plaintiff; and plaintiff has been caused and has suffered great mental pain and personal injury,' for which he asks $ 250,000 actual damages. Plaintiff further alleges that the acts of defendant NBC were 'willful, wanton, malicious, and intentional, and perpetrated with a reckless disregard of the rights of plaintiff and without his knowledge, consent and acquiescence,' entitling him to punitive damages of $ 500,000.

 The complaint in Civil Action 3517-52 is drafted on a single tort theory, alleging the telecast on January 18, 1952, over Station WNBW, Washington, D.C. Civil Action 5663-52 is drafted on a multiple tort theory, claiming a separate tort in each of twenty-eight states in which the program was telecast by relay of the 'live' broadcast in New York or by re-broadcast by means of kineoscope recording, and asks varying amounts of actual and punitive damages for the telecast in each state.

 Defendant in its motion for summary judgment contends that neither of the complaints states a cause of action upon which relief may be granted.

 The telecast here involved was one of a series of similar dramatizations, commending the accomplishments of newspaper reporters in bringing criminals to justice or in securing the release of innocent person convicted of crime. In each of the programs the actual name of the reporter and his paper were used, but the names of other persons portrayed were changed, and the incidents were fictionalized for dramatic effect.

 On this particular program, the man convicted of crime was called Dave Crouch and the murdered man Woody Benson. Benson, a gambler running a game in Alexandria, was shot as he walked along the sidewalk in the District of Columbia, by a man riding in a car. Crouch was arrested while asleep on a bench in a bus terminal in Washington. He was inadequately defended at his trial by a Mr. Kendall, an inexperienced court-assigned counsel, who did not call as an alibi witness Crouch's 'commonlaw wife,' Helen Slezak, with whom Crouch had spent the day of the murder in New York. Mr. Kendall showed lack of confidence in the success of the defense, in view of Crouch's previous conviction in Minnesota of which he was innocent and for which he had been pardoned. At the trial, the court admitted a detective's statement as to Crouch's Minnesota conviction, omitting any reference to the pardon. Kendall did not call Helen as a witness, on the ground that the 'blue ribbon jury,' 'all respectable property owners,' might be prejudiced against a common-law wife, although Dave explained to him that were not legally married because Helen's husband would not give her a divorce. Crouch was convicted on the testimony of a Mrs. Hedlund, a garrulous middle-aged woman, who positively identified him as the murderer whom she had seen, as he fired the shot, when she looked from the window of her upstairs apartment. After conviction, Crouch was pictured as desperately playing solitaire in his cell and checking off on a calendar the days leading up to his execution, whenever Miss Strayer called upon him there. *fn11"

 The record in the actual criminal case and the pleadings and deposition of plaintiff in this case, reveal: The plaintiff, as Charles Harris, was convicted of first-degree murder in connection with the shooting of Milton White Henry, a Washington gambler, on April 21, 1932, in the District of Columbia. About 6 a.m., while Henry, in his car, was stopped behind a milk wagon in the narrow street in front of his apartment, he was killed by a man who alighted from a Hudson automobile, shot him, and then jumped on the running board of the Hudson, which sped away. Harris was arrested in Philadelphia, while looking in a store window, accompanied by his 'wife'. At the trial, he was identified as the murderer by a Mr. Rhodes, an attorney with the Federal Trade Commission, who testified that he had seen Harris at the time of the shooting from the window of his apartment and heard Harris tell the driver of the Hudson to 'keep moving' and 'step on it.' Mr. Rhodes testified that the trees in front of his apartment were in bud at the time and 'might have been forming leaves,' but that he had an unobstructed view of the shooting. *fn12" The driver of a laundry truck testified that on the day before the crime he had passed by the scene of the murder on three different delivery trips and, five different times, had seen the same car, identified as that driven by the men who committed the murder, with the same two men in it, and that the defendant was one of them.

 At the trial Harris was represented by two attorneys of his own selection, one of whom had eight years' experience in the District of Columbia and a largely criminal practice. Plaintiff did not take the stand in his own behalf, but defense witnesses testified that he was in New York at the crucial time. The woman with whom Harris was living in New York was not called at a witness because counsel 'didn't want to besmirch her character.' *fn13" Harris and the woman were not legally married because he had a living wife, and the woman's name did not in any way resemble 'Helen Slezak.' On appeal, Harris was represented by different counsel, one of whom, Mr. Burkinshaw, had had about two or three years' experience with the Department of Justice.

 Plaintiff alleges that the actor who portrayed Dave Crouch resembled him physically, as he appeared at the time of his trial. *fn15" For the purpose of this motion, the court will assume that this resemblance exists.

 Thus, the points of similarity between the plaintiff's life and the television story of Dave Crouch are reduced to: a conviction in the District of Columbia of first-degree murder in connection with the shooting of a gambler in Washington; failure to call a 'common-law wife' as an alibi witness; Miss Strayer's effective interest in proving the defendant's innocence; securing of other counsel after the trial; emotional turmoil of the convicted man while awaiting execution; additional evidence as to the leaves in front of an eyewitness' apartment window; another eyewitness coming forward, after affirmance of the conviction, to state that defendant was not the murderer; thanking of Miss Strayer by the defendant after his release; and a physical resemblance between the actor and the plaintiff as he was twenty years ago.

 Counsel further concedes that plaintiff's conviction and commutation of sentence, when they occurred, were matters in the public domain, and that a dramatization at that time based on the facts and containing nothing defamatory, similar to the program in question would not have been an invasion of plaintiff's privacy. *fn16" It is contended, however, that by reason of the lapse of time since plaintiff's release in 1940 and the nonpublic character of his activities since that date, his life has regained its private character, and he was in 1952 entitled to protection from any invasion of his privacy by revival of the story of his conviction and the subsequent proceedings, with consequent emotional distress to him and interference with his social and employment relations. Plaintiff argues that his past history has lost its news interest and is of no educational value, and that the prime purpose of the telecast of 'The Big Story' was to sell Pall Mall cigarets by exploitation of his personal history.

 Many points have been briefed and argued by counsel for the respective parties, but the case reduces itself to a few legal questions:

 First, the law of what jurisdiction or jurisdictions is to be applied in resolving the other legal questions?

 Second, can a public personage -- to be specific, a person involved in a criminal trial -- by virtue of the passage of time spent out of the public gaze, regain a private status so as to make his past legally protectable against invasion of privacy?

 Third, do the facts alleged in plaintiff's complaints state a cause of action?

 Fourth, is there any issue of material fact in this case which makes summary ...

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