Comments from Stan Stone on the Daniel vs. Defonseca/Lee Hearing
Stan Stone, a member of the Hovey House Witer's Group and the author of the blog, On the Cove, attended the hearing last Thursday and posted some very insightful comments on a message board where the case was being discussed. I thought they were worth posting here for an additional perspective:
I was at the hearing on Thursday (I ended up sitting on the Misha side, kinda like a wedding). It was very unfortunate that the judge had not read the supporting casework of Daniel's attorney regarding Mass Rules of Civil Procedure, Rule 60, Relief from Judgment.
Earlier comments in this thread indicate that the judge and jury found Daniel to be guilty, so that must be the truth. One would hope in normal circumstances that the court systems "finds the truth", but it is quite obvious that Defonseca completely fooled everyone. I use fooled graciously here--she is a pathological liar. Establishing herself as a holocaust survivor that was being cheated by an unscrupulous publisher gained her the sympathy of the court, and lessened the level of proof she needed for her case. I believe that Vera Lee benefited from this situation--that Daniel was completely vilified an therefore must be guilty of cheating Lee too.
One of the damning points of Defonseca's case was that Daniel set up an off-shore account to hide the money. I think when anyone hears "off-shore account" they immediately think of hiding assets and nefarious doings, but in this case, it was a legitimate business practice to manage how profits are brought into this country from foreign sales (which came from selling the foreign language rights of the book). It is a legitimate business practice, but foreign to most of us who do not have foreign profits. If you have suspicions about a person, then an off-shore account sounds pretty shady.
From documented evidence (not hearsay) we know that Defonseca was not in dire financial straights as she claimed. She and her husband were con artists of the highest level. For Lee to benefit from their fraud is a travisty.
You have to remember that the copyright of the book was taken from Mt. Ivy press and given back to Defonseca (normally the publisher retains the copyright while the book is in print). All of the profits that were made from the book should have gone to Mt. Ivy press and Defonseca would have been paid royalties--as stated in the standard publishing contract she signed. Not only was Mt. Ivy press deprived of the profits, Daniel was deprived of her inheritance from her father in the settlement. Her house is essentially owned by the attorney of Lee (she can remain there until it is sold). This judgement was based on the fraud Defonseca purpurtrated on the court as she represented herself.
I hope that Daniel prevails in having the judgement relieved--instead of just being taken by a very skillful con artist, she was sued in court who was awarded one of the largest judgements in Massachusetts history (now that's a con artist extraordiaire). I hope there is some justice found in this case. Defonseca not only caused extreme harm to Daniel (Daniel spent a night in Norfork prison for her inability to make restitution payments), but a mocky of the court. Pray this never happens to you.
Mass Rules of Civil ProcedureYou can see that Mass.R.Civ.P. 60(b)(6) is not bound by the one year limitation--it give the courts a way of rectifying egegious judgements. Since Defonseca's own admission that her story completely false only happened in February of this year, the request for relief comes in a reasonable period of time.
RULE 60.
RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(b) Mistake; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of review, of error, of audita querela, and petitions to vacate judgment are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
Earlier comments in this thread indicate that the judge and jury found Daniel to be guilty, so that must be the truth. One would hope in normal circumstances that the court systems "finds the truth", but it is quite obvious that Defonseca completely fooled everyone. I use fooled graciously here--she is a pathological liar. Establishing herself as a holocaust survivor that was being cheated by an unscrupulous publisher gained her the sympathy of the court, and lessened the level of proof she needed for her case. I believe that Vera Lee benefited from this situation--that Daniel was completely vilified an therefore must be guilty of cheating Lee too.
One of the damning points of Defonseca's case was that Daniel set up an off-shore account to hide the money. I think when anyone hears "off-shore account" they immediately think of hiding assets and nefarious doings, but in this case, it was a legitimate business practice to manage how profits are brought into this country from foreign sales (which came from selling the foreign language rights of the book). It is a legitimate business practice, but foreign to most of us who do not have foreign profits. If you have suspicions about a person, then an off-shore account sounds pretty shady.
From documented evidence (not hearsay) we know that Defonseca was not in dire financial straights as she claimed. She and her husband were con artists of the highest level. For Lee to benefit from their fraud is a travisty.
You have to remember that the copyright of the book was taken from Mt. Ivy press and given back to Defonseca (normally the publisher retains the copyright while the book is in print). All of the profits that were made from the book should have gone to Mt. Ivy press and Defonseca would have been paid royalties--as stated in the standard publishing contract she signed. Not only was Mt. Ivy press deprived of the profits, Daniel was deprived of her inheritance from her father in the settlement. Her house is essentially owned by the attorney of Lee (she can remain there until it is sold). This judgement was based on the fraud Defonseca purpurtrated on the court as she represented herself.
I hope that Daniel prevails in having the judgement relieved--instead of just being taken by a very skillful con artist, she was sued in court who was awarded one of the largest judgements in Massachusetts history (now that's a con artist extraordiaire). I hope there is some justice found in this case. Defonseca not only caused extreme harm to Daniel (Daniel spent a night in Norfork prison for her inability to make restitution payments), but a mocky of the court. Pray this never happens to you.
- Stan Stone
________________________________________________________
This case is drawing a lot of attention all over the country and the world. Serge Aroles, the French physician and expert on feral children, has sent me a couple of articles from French periodicals discussing the case. The conventional wisdom is that Defonseca's next tactic will be to put forth the suggestion that she is a victim of Recovered Memory Syndrome and that the entire store was something she only recently came to realize is not true. However on August 6, 1998 she knew what her mother's maiden name was, and knew her date and place of birth because she signed a bank card with that information written on it. It is posted on the BESTSELLER blog.
Here in Massachusetts both Mass Lawyers Weekly and New England Law Journal have expressed an interest in doing articles about the case. It is receiving a lot of much deserved attention. The big question --- as previously stated --- is this: Will the Commonwealth of Massachusetts vacate the judgment because it was based on fraud and perjury or will Defonseca get away with her deception? Stay tuned.
Thanks for reading.
posted by Kathleen Valentine at 6:22 PM
0 Comment:
Post a Comment
<< Home