Back in college, my friends and I (like many other students with too much time on their hands) developed a love for the crudely-animated and oftentimes just plain crude, TV show South Park. Although this relationship of love should now more aptly be described as "friends with bennies" (i.e., I will call upon it once every few months or so when not much else is on), at times I have caught myself reminiscing about the good ole days.
One of my favorite episodes (and I'd like to think this is not just because I am an attorney) featured something called the "Chewbacca defense." In the episode, a record studio hires Johnnie Cochran to defend it in a harassment lawsuit against Chef. At the conclusion of trial, Johnnie delivers the following closing argument:
... Ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!
... Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests.
In the end, Johnnie woos the jury with this charismatic, yet utterly nonsensical argument, and wins the case for the record company.
Now, while I appreciate the Chewbacca defense for its comedic value, my appreciation for it when used in actual litigation is much, much - indeed, radically - less. Hence my frustration when I saw the device being utilized in the recent high-profile case involving the alleged extortion plot by former CBS news producer Robert "Joe" Halderman against David Letterman. Dusted off and repurposed, the Chewbacca defense was now the "Tiger defense," and was cited by Halderman's lawyers as basis for dismissal of Halderman's indictment on extortion charges. Allowing myself some creative liberties here, the argument sounded something like this:
... Ladies and gentlemen of this supposed grand jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Tiger Woods. Tiger Woods is a championship golfer who had an affair with Rachel Uchitel. Uchitel kept evidence of the affair, but, by virtue of Woods' payment, such evidence was never released. To date, no criminal charges have been filed against Uchitel, for extortion or any other crime. That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Joe Halderman offered to sell his story to David Letterman, and has been charged with extortion. Now think about it; that does not make sense! Look at me. I'm a lawyer defending an extortion plot, and I'm talkin' about Tiger Woods.
[If you don't trust my summary or are simply curious, you can read the actual court filing here]
Readers, the Tiger defense does not make sense for multiple reasons, but respecting my word count restriction, I will limit my commentary to only three of them:
First, comparing extortionate conduct to something that is not extortion does not make sense. In order to constitute extortion, the law requires evidence of a threat which instills fear in the person threatened. Halderman, however, neither cites facts nor makes any suggestion that Uchitel communicated an actual threat to Woods demanding money in exchange for her silence (or some other quid pro quo), as Halderman is alleged to have done to Letterman by demanding $2 million to refrain from publishing information about Letterman's affairs. Rather the facts reported are only that Uchitel announced a press conference, which was subsequently cancelled when Woods offered hush money and Uchitel accepted his offer. A person's unilateral fear that unsavory details concerning his or her private life may later be made public by another does not render him or her a victim of extortion. It's simply called having regret.
Second, relying on anecdotal evidence as grounds to support dismissal of an indictment does not make sense. The "evidence" supporting Halderman's conclusion that Uchitel is not an extortionist comes exclusively from third-party news reports. Tellingly, Halderman's briefing of the Tiger defense is littered with citation to sources including, but not limited to, thedailybeast.com, radaronline.com, and the Huffington Post. Whether or not these news sources contain accurate information is truly beside the point; it is impermissible for a court to recognize such information as fact. Thus Halderman would probably best be served by sticking to case, statutory or other legal authority is seeking a dismissal. After all, even the Chewbacca defense threw in a reference to the Emancipation Proclamation.
Finally, even if Uchitel's conduct could be characterized as extortion, Halderman ignores a little something called prosecutorial discretion. Prosecutorial discretion refers to the fact that government prosecutors have nearly absolute and unreviewable power to choose whether or not to bring criminal charges, and what charges to bring, in cases where the evidence would support charges. Thus, even assuming a basis for criminal charges existed in the Tiger/Uchitel situation, the fact that local prosecutors elected not to pursue an extortion claim against Uchitel is no reason to conclude that Uchitel's conduct was, ipso facto, not extortion. By Halderman's logic, the next time a man holds his wife at knifepoint threatening to kill her, I'm guessing that man should assert the Charlie Sheen defense. Hopefully, even the late Johnnie Cochran would find humor in that.