Cinema, Culture, Entertainment, Law, Top Stories

A Reasoned Judgment and a Reputation in Ruins

Well, now it’s not just the word of British tabloid the Sun, it’s also the rather weightier opinion of Mr Justice Nicol: Johnny Depp is a wife-beater who assaulted Amber Heard on at least 12 separate occasions during their relationship. Like many others who have brought libel actions to clear their names, Depp has found that using the law to defend your reputation is a very expensive way of shattering it—in this case, probably beyond hope of repair.

A lot of his fans don’t like it, of course. #JusticeforJohnny has been trending, along with out of context—or simply invented—quotations from the judgment. There have also been lurid suggestions that it was “corrupt” for Nicol J to sit on the case because he once co-wrote a book on media law with Geoffrey Robertson QC, whose wife was friendly with Jennifer Robinson, a barrister who had advised Heard. That ground of appeal, I can confidently predict, will get him nowhere.

Nevertheless, dubious or false allegations of physical or sexual violence are by no means unheard of, whether to gain attention, exact revenge, or simply to make money. By a quirk of fate, the day after Nicol J handed down his judgment, another court heard and dismissed the appeal against the sentence of Carl Beech, the most notorious false accuser in recent British history. Beech’s accusations of rape and murder against elderly British “VIPs” may have lacked the glamorous Hollywood backdrop of private jets, private islands, hurled champagne bottles, monogrammed cocaine boxes, and dogs with incomplete mastery of their bowels, and Beech’s financial rewards were correspondingly modest. But his lies still funded the purchase of a Ford Mustang and a Lapland hideaway before the law caught up with him in the shape of an 18-year prison sentence.

Allegations of greed also featured prominently in the Depp case. One of Depp’s central claims was that Amber Heard had falsely accused him of domestic violence in order to obtain a more generous divorce settlement. Indeed, Depp’s Shakespearean facility for invective provided one of the guilty pleasures of this sad case. Heard wasn’t just a gold-digger, Depp announced, she was a “gold digging, low-level, dime-a-dozen, mushy, pointless dangling overused flappy fish market…” But the facts, as Nicol J prosaically pointed out, suggested otherwise:

The principal element of that settlement was payment to her by Mr Depp of US$7 million. Ms Heard’s evidence that she had given that sum away to charity was not challenged on behalf of Mr Depp and the joint statement issued by Mr Depp and Ms Heard as part of the Deal Point Memorandum acknowledged that this was her intention… I recognise that there were other elements to the divorce settlement as well, but her donation of the $7 million to charity is hardly the act one would expect of a gold-digger.

Many of Heard’s allegations of violence were corroborated by contemporaneous documents—for example emails, diary entries, or text messages. These, Depp claimed, were a calculated hoax by Heard. She was “building up a dossier” for later use, presumably as blackmail in the divorce negotiations. The judge was unpersuaded, not least because at about the same time as one of the alleged “hoax” diary entries—three years before the couple separated—Depp had this exchange of text messages with his friend, actor Paul Bettany:

JD: Let’s burn Amber!!!

PB: Having thought it through I don’t think we should burn Amber—she’s delightful company and easy on the eye, plus I’m not sure she’s a witch. We could of course try the English course of action in these predicaments—we do a drowning test. Thoughts?

JD: Let’s drown her before we burn her!!! I will fuck her burnt corpse afterwards to make sure she’s dead.

PB: My thoughts entirely! Let’s be CERTAIN before we pronounce her a witch.

These rather unattractive messages and others were among 70,000 texts accidentally disclosed before the trial by Depp’s former solicitors. Depp described himself as a “Southern Gentleman” with a “niche” sense of humour. It was demonstrated again in another “jokey” exchange of text messages with his former partner Vanessa Paradis, some of which was quoted by the judge (I’m not sure if these were also among the ones accidentally disclosed):

JD: I will bring some cash over and tip the bitch!!

VP: Yeah sloppy slut.

JD: Fucking ugly fat whore!!!

VP: Bring the cash and the whore

JD: For the idiot cow!!!

JD: Will do!!! I’ll smack the ugly cunt around before I let her in, don’t worry …

JD: Did that worthless hooker arrive???

The judge observed that “[Mr Depp] struggled to explain the nature of the joke or why it was funny.” Admittedly, it can be tricky to explain private jokes to an audience for whom they were not intended, especially from the witness box in a libel case under the steely cross-examination of Sasha Wass QC. But messages like these did lead the defence to concede that “the views he was expressing in this exchange were not those of the Southern Gentleman he aspired to be.”

High street criminal lawyers quickly become familiar with the alcoholic client who says “I definitely didn’t hit her but I was so drunk I’ve forgotten exactly what happened.” It can be a tricky defence to run in the Swindon Crown Court, particularly when it has evolved, under pressure of undeniable evidence, from the defendant’s earlier protestations that “I can remember everything clearly and I wasn’t drunk.” It’s not any easier in the High Court. Heard had accused a drunken Depp of slapping and kicking her during a flight on a private jet from Boston to Los Angeles. At first, Depp had claimed to “remember the flight in detail.” He had not taken any cocaine, nor had he been drinking heavily. Unfortunately, among the texts mistakenly disclosed by his previous solicitors was this message sent to a friend the day after his arrival in LA:

I’m gonna properly stop the booze thing, darling… Drank all night before I picked Amber up to fly to LA this past Sunday… Ugly, mate… No food for days… Powders… Half a bottle of Whiskey, a thousand red bull and vodkas pills, 2 bottles of Champers on plane and what do you get…?? An angry, aggro injun in a fuckin blackout, screaming obscenities and insulting any fuck who gets near… I’m done. I am admittedly too fucked in the head to spray my rage at the one I love. For little reason I’m too old to be that guy. But, pills are fine!!!

The next day Depp sent what appeared to be an apology to Heard:

Once again, I find myself in a place of shame and regret. Of course, I am sorry… I will never do it again… My illness somehow crept up and grabbed me… I feel so bad for letting you down.

Faced with a claimant who—to put it as generously as possible—had a patently unreliable memory, and who sent a contemporaneous text that was at least consistent with the allegation made against him, it is unsurprising that the judge believed Heard’s account and not his. But surely there was someone else on the flight? Yes there was: Depp’s personal assistant, Stephen Deuters, a fan of Depp since childhood and a witness so independent that in 2015 he sent Depp this text message:

You are a MAVERICK. An ARTIST. A bona fide FUCKING LEGEND. One of the ALL TIME GREATS… ALLL TIME!!! You are LOVED out there in the world and all anybody wants to see on the screen is the Johnny Depp they know and LOVE.

Deuters supported Depp’s account that he had not kicked Heard. At most, he said, he may have “playfully moved to tap her on the bottom with his shoe.” Awkwardly, this evidence was also undermined by a text Deuters sent Heard shortly after the flight: “When I told him he kicked you, he cried… It was disgusting. And he knows it.”

One could go on, but the judgment is available to read in all its damning detail. The judge meticulously examined the evidence for all 14 allegations of Depp’s violence relied upon by the Sun, and found that all but two were more likely than not to be “substantially true.” It is impossible for a fair-minded reader to disagree. The court did hear a recording in which Heard admits to throwing pots and pans at Depp and even to hitting him, but the judgment places this in the context of a relationship in which he was usually the instigator of violence, not her. The judge may have been wrong to skate over the implications of the recording, but even if it were true that Heard occasionally hit Depp, it would not disprove the various allegations made against him. Bluntly: even if she sometimes hit him—and the judge made no such finding—it would not absolve him for using violence against her.

Depp’s solicitors, Schillings, issued a statement immediately after the judgment announcing his intention to appeal. The judgment, they said, was “as perverse as it is bewildering… so flawed that it would be ridiculous for Mr Depp not to appeal this decision.” Bluster, though, will not restore Depp’s reputation, and the grounds for an appeal are far from obvious. Of course, it is possible that the judge got it wrong; in a civil, as opposed to a criminal, case a person making an allegation (or proving the truth of a libel) is not required to prove their case “beyond reasonable doubt,” merely to demonstrate that it is “more likely than not.” The judge might have ignored or misunderstood vital evidence that most readers of the judgment would not know about: if so, Mr Depp’s appeal will no doubt succeed. But my overwhelming impression of the judgment is that it is fair and careful. There are areas of doubt, there are unanswered questions, and there is some criticism of Heard, but on the central allegations of Depp’s violence the judge gives a reasoned and credible explanation for preferring, in almost every case, Heard’s evidence to that of Depp.

The case raises some issues beyond the obvious one of why Depp decided to take what he should have been told was the extraordinary risk of exposing his turbulent private life to public examination. First, whilst campaigners against violence to women have been understandably quick to welcome the judgment, some of them may not be quite so happy about one of its implications. Nicol J’s decision had nothing to do with a philosophy of “believing the victim” or “standing up for victims of domestic abuse.” It was based on a careful and impartial assessment of the evidence, a large part of which came from contemporaneous text messages recovered from Depp’s or Heard’s phone.

In criminal cases, too, evidence of text messages or social media is often vital in establishing the truth. Depp had a great deal to lose, and he has lost it, but his liberty was not at stake. When someone is charged with criminal violence—whether physical or sexual—the stakes are even higher, yet repeatedly we hear calls from campaigners such as Dame Vera Baird, the “Victims’ Commissioner” for England and Wales, that the police should avoid what she has called “digital strip searches” of complainants’ phones. This case—in which evidence obtained from mobile phones was so critical—shows how dangerous such calls are to justice.

Second, the case raises questions about juries. In a serious criminal case in England and Wales, a defendant has no choice: Trial by jury is the only option. However, following a rule change a few years ago, juries are now virtually extinct in English civil cases, including libel cases. Whether or not a jury would have reached the same decision, its reasoning would have been inscrutable. If they thought that Johnny Depp was telling the truth because they had enjoyed his films, or had found against him because they disapproved of his drug-taking, nobody would have known. (Unlike in the United States, English jurors are not allowed to reveal the secrets of the jury room to inquisitive journalists post-trial.) A huge advantage of a judge-only trial is that the judge must explain his reasoning in a judgment which can then be challenged by an appeal.

There are many advantages to trial by jury, and this is not the place to set them out, but trial by judge alone—a “bench trial”—has its advantages too: Shouldn’t a defendant have the right to a detailed explanation of how his guilt has been established? In most other common law jurisdictions, it is possible for a defendant to elect a bench trial, but in England and Wales the very suggestion is anathema to the majority of criminal lawyers who see it as the thin end of a wedge that will fatally undermine the jury as an institution. Yet giving defendants the choice has not had that effect elsewhere. In Australia, for example, jury trial is constitutionally protected and in the United States, where most states provide an option for trial by judge alone, juries remain more deeply embedded in the justice system than anywhere else in the world.

Indeed, if he still has the stomach for it, Depp will soon have a chance to put his case to an American jury instead of a stuffy old English judge. He has brought a separate libel action in Virginia, this time against Amber Heard (who was not a party to the English case) personally. The case is due to start in May next year—Depp’s final chance to restore his reputation. It will be fascinating to see if a Viriginian jury reaches the same conclusion as the Mr Justice Nicol.

 

Matthew Scott is a criminal barrister at Pump Court Chambers and a legal blogger. You can follow him on Twitter @Barristerblog.

Feature image: London, UK. 15 July 2020. Johnny Depp, Hollywood actor, arrives at the High Court on day 7 of his libel case. Credit: Stephen Chung / Alamy Live News.