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Hello to those of you who have been following this blog since I started it last July, and welcome to any newcomers. It’s been a long time since I’ve written anything here, though there have been many related postings.

I began my blog by putting up chapters of a book I had begun, “Bestseller!” which was about a bestselling Holocaust memoire that my tiny publishing company had published. That “memoire” spawned a massive lawsuit and resulted in a $33 million verdict against me. When I began the blog, I explained that I was writing “Bestseller!” in real time and that I didn’t know how the story of my struggle would end.

Through an amazing twist of fate, I was contacted by a forensic genealogist who had read my blog. She was able to prove that the memoire was a massive literary fraud. I had hoped that the truth would allow me to overturn the $33 million judgment that was awarded to the perpetrator of the hoax and her co-author. For many months I had been feeling my way in the dark, but when the truth was revealed I had high hopes that I would, at last, find justice.

“Bestseller!” was ready to go to the printer when the story took yet another surprising turn. The complaint I filed to overturn the $33 million judgment (based on fraud on the court) was dismissed. I will now be filing an appeal. That will be my last chance to find justice. If the appeal fails, my eleven-year struggle will end in defeat. I will lose everything – including my home, which is also my livelihood (I run a B&B.)

At the last minute I added a postscript to the book that explains what my complaint was about and what happened. I am posting it here. The rest of the bizarre, fascinating, appalling account is in the book. It is a scathing indictment of our legal system.

I want to extend my appreciation to the kind souls, many total strangers, who have expressed their support. You, dear ones, have helped me through some very dark times.

- Jane Daniel

At the heart of justice is a divine spirit. It sprouts from the same seeds as life itself. And although we can define neither life nor justice, we are able to recognize injustice, the supreme form of which is to surrender to the status quo and to sanctify the myths and fantasies that breed it, among which is the national legend that in America there is liberty and justice for all. - Gerry Spence

BESTSELLER!
by Jane Daniel
ISBN #9780615237510
Trade Paperback • 302 pages
$19.95
Publication Date:
November 1, 2008
Pre-order for deliver as soon as the book is available.

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Post Script: Does the Truth Matter?

Monday, October 13, 2008

I write this just as this book is going to press.

Following Misha’s confession, my new attorney, Joe Orlando, prepared a complaint to overturn the judgment against Mt Ivy and me. It was filed on April 8, 2008, almost six years to the day since the judgment entered. To overturn a judgment, the rules required that I go back to the same court that issued the judgment. For me it was returning to the scene of the injustice, hoping for a better outcome.

The issues we placed before the court went to the heart of the case: the effect of the hoax on the trial.

Mass. Rules of Civil Procedure, 60 (b) sets a time limit of one year for bringing an action to overturn a judgment on the basis of five causes, including a mistake, newly discovered evidence, fraud, etc. We were well beyond the time limit for causes (1) through (5). But at the end of the paragraph, there is 60(b)(6) which provides relief “where there is something more,” some kind of “extraordinary circumstances.” Fraud on the court, committed by an officer of the court, rises to this “extraordinary” level and has no statute of limitations.

A lawyer is an officer of the court. Misha was her own lawyer for almost a year, signing under pains and penalties of perjury the required pleadings. A pro se litigant is bound by the same obligations and constraints under Mass. Rules of Civil Procedure that apply to an attorney. Joe said the courts have overturned judgments for conduct far less egregious than Misha’s brazen fraud. “If this case doesn’t present an extraordinary circumstance, I can’t imagine what would!” he said.

One of the cases we relied on involved a matter of legal fees. An attorney representing himself in suing his client had, in a nutshell, pulled a fast one on his client to collect his fees. The court, in this case, found that the attorney’s conduct rose to the level of “something extra” such that it warranted a reversal of the judgment against the client.

Misha had stepped into the shoes of an attorney, we argued, thus becoming an officer of the court. In this capacity she had committed fraud on the court in holding herself out as a victim of the Holocaust, one of the most horrendous events in human history. The sympathy and credibility she gained from the judge and jury profoundly influenced the outcome of the case.

We had been sued for failing to fulfill the terms of the contract. However, we argued, the contract was void ab initio, invalid from the outset, because both Misha and Vera had warranted in their Publishing Agreements that “all statements of fact are true” and the story is “authentic,” a warrantee that they both violated. Had the court known at the time about the hoax, all of the accusations against us would have been examined through a completely different lens. In fact, without a contract, there never would have been a trial. The case would have been thrown out on summary judgment.

Frisoli, on behalf of Vera, and Misha (again representing herself) filed motions to dismiss my complaint. A hearing was scheduled for August 28, 2008 in Middlesex Superior Court. I notified the media. National Public Radio reported on the hearing; we listened to the broadcast as we drove to the courthouse. The Associated Press sent a reporter and a photographer. The Gloucester Times was there. There were others I didn’t recognize. Many supporters showed up including Sharon, Karen, Barbara and Ginny. Rosian and Susie got to the courthouse but were directed to the wrong courtroom.

When we entered the courtroom there was a press camera tripod in the corner and the benches were full. Ramona Hamblin was sitting beside Misha and Maurice in the front row. She would not be representing Misha, I knew, because the Board of Bar Overseers website listed her as “administratively suspended.” Misha had gained weight and Maurice sported a new mustache.

Judge Timothy Feeley took the bench. He had only received the papers on this case that morning, he told the lawyers, apologetically.

Joe spoke first. He presented his arguments in a low-key and measured tone. The case law supports our position, he said. Courts have overturned verdicts for far less egregious conduct than what occurred in this instance. Misha was an admitted liar. Her conduct in exploiting the suffering of the victims of the Holocaust for her own financial gain was a heinous act. The fraud permeated the trial. It was more than fraud; it was fraud on the court. Rule 60(b)(6) was designed to catch just such extraordinary miscarriages of justice as this.

Frisoli spoke next. He was wearing another of his matching outfits, this time a baby blue seersucker suit with a blue shirt and tie. In his usual hyper-excited manner, voice too loud, gesturing profusely, he explained that Misha hadn’t admitted that she lied; her story was simply historically inaccurate. Her “alleged” admission was like the repressed memory of a sexually abused child. And, in any case, the statute of limitations on fraud had long expired. He went through the usual litany of character assassinations I’d heard so many times before. I couldn’t bear to watch him; I fiddled with my rings in my lap while he spoke, “Foreign rights diverted …lies… money hidden from my client in an offshore account… Framingham jail….” He went on and on.

Then Misha read from a prepared statement, citing statutes and case law. Her statement appeared to have been written by a lawyer. In her broken English, she explained that she didn’t intend to defraud the court; she really believed her story.

The judge then asked several questions about whether the fact that the book was not a true story had any bearing on its marketability. Did it matter that the story wasn’t true? Frisoli said it didn’t. Joe replied that Misha’s aura convinced the court that everything she said was true.

Were there any expert witnesses? the judge wanted to know. Joe answered that there was never an independent auditor. We would welcome the opportunity to have an auditor examine the company’s finances if the judgment were to be overturned, he said.

And then it was over.

Outside the courthouse I gave interviews to several reporters. A TV crew from Providence shot footage that aired that night on New England Cable News. From the corner of my eye I saw Frisoli emerge through the glass doors of the courthouse and walk toward me as if to catch my eye. I turned away and he proceeded toward the entrance to the parking garage. When he had exited, I turned my head to be sure he was gone and, just as I did, he popped back through the door. Grinning a gloating smile, he raised one hand and wriggled his fingers at me. “Bye-bye, Jane,” he said in a sing-song, taunting voice.

Karen saw the gesture and moved to stand beside me. “He makes me sick,” she hissed. Sharon said to me later. “I wonder if the judge understands that the $33 million was the award based on Misha’s estimate of what the book should have been worth, plus punitive damages; it was not the book’s real earnings.”

The AP story went out on the wire and was picked up all over the world. It was obvious from the headlines that the reporters didn’t understand the money issue either. The gist of the story was the same; the headlines differed.

Author of Faked Holocaust Book Fights Publisher for Millions

Memoir faker fights publisher

Author of book hoax fights for profits

Author of hoax memoir asks judge to toss lawsuit

Author of faked Holocaust book fights for her millions

Fake book author wants profits

Author of faked Holocaust book fights for millions

Despite lies, US author of faked Holocaust book fights to keep $33 million

Author of faked Holocaust book fights for millions

The best headline came from the little Gloucester Daily Times:

Does the truth matter?

On October 9, 2008, Judge Timothy Feeley issued his ruling. Here are excerpts:

The court is not condoning or minimizing the fraud and misconduct alleged in the case. If true, the allegations in the complaint are, as claimed by the plaintiffs, deeply disturbing on a number of levels. The Holocaust tragedy is a subject that deserves respect from all, and no one should attempt to obtain personal gain from the unconscionable slaughter of millions. People should not profit from their own misconduct.

However, this is not an action against Defonseca for her misdeeds. This is an action by plaintiffs seeking relief from judgments entered by this court six years ago. The question is not whether relief from judgment might have been appropriate at some time; the only question is whether such relief is appropriate now.

I find nothing extraordinary about the allegations of fraud, misrepresentations and misconduct in this case. This case lacks the “something extra.” Plaintiffs argue that Defonseca’s role as a pro se litigant invested her with some kind of special obligation to the court and made her fraud, misrepresentations and misconduct particularly egregious. The court disagrees. The misconduct did not arise out of [her pro se] status, and the harm to plaintiffs was not aggravated by that status.

The substance of the book may have given flavor to the trial, but it was the conduct of the parties, and particularly the conduct of Daniel, that was the subject of the trial and the basis for the judgment in the case. Defonseca’s fraud, misrepresentations, and misconduct did not go to the heart of the case. It did not establish the basis for the jury’s and the court’s verdicts against the plaintiffs. Accordingly, this court finds nothing exceptional or extraordinary about the fraud, misrepresentations and misconduct in this case to justify the use of Rule 60(b)(6).

A ‘fraud on the court’ occurs ‘where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense. A party seeking to demonstrate fraud on the court must prove ‘the most egregious conduct involving a corruption of the judicial process itself.’

Defonseca’s fraud does not rise to the level of “fraud on the court.” Her misrepresentations and fraud did not prevent the court from providing plaintiffs a fair and impartial trial.

The Supreme Court stated that independent actions under Rule 60 (b)(6) “should only be available to prevent a grave miscarriage of justice.” Here the fraud is certainly of the sensational variety, and not to be condoned, but refusing plaintiff’s relief from a six-year judgment does not constitute a grave miscarriage of justice.

Whether Defonseca should profit from or be punished for her bad conduct is not the question for this court. The only question is whether Defonseca’s bad conduct should absolve plaintiffs from their own bad conduct six years after entry of judgment. It bears noting that it is not, as claimed by plaintiffs, Defonseca’s conduct that caused harm to plaintiffs. It was their own bad conduct that not only caused a jury to find against them across the board, but caused a Superior Court judge to fine their conduct so egregious that it warranted treble damages and attorney’s fees.

The motion to dismiss the claim was allowed.

“We’re filing an appeal,” Joe said.

To be continued ….