Courtroom Drama: Details of New Mexico GTA Murder Lawsuit

As we reported last night in a GamePolitics exclusive, controversial attorney Jack Thompson's Grand Theft Auto lawsuit was dismissed yesteday by a judge in Albuquerque, New Mexico.

Thompson and local attorney Steve Sanders filed the suit last year on behalf of the brother of a man killed by his 14-year-old son. The plaintiff alleges that Cody Posey was influenced by Grand Theft Auto Vice City to kill his father, stepmother and stepsister. Testimony and evidence presented at Cody Posey's 2006 juvenile court trial, however, showed that he had been physically and sexually abused by his father.

GamePolitics has received this excellent account of yesterday's proceedings from a source who attended part of the hearing before Judge Valerie Huling:

Steve Sanders and Jack Thompson appeared on behalf of the plaintiffs (I think that [plaintiff] Verlin Posey - Delbert's brother/Cody's Uncle -- was there with his wife).  New Mexico attorney Charles "Kip" Purcell appeared on behalf of Sony and Take-Two, along with Robert Atkins, Douglas Pravda and Phil Kopsinski (sp?) of [T2/Sony's law firm Paul, Weiss, Rifkind, Wharton & Garrison]...

Initially, the Court pointed out that, even though there were numerous motions to dismiss, they essentially broke down along two lines: personal jurisdiction and failure to state a claim.  The Judge asked that the parties not simply re-hash their previous motions, responses and replies. Judge Valerie Huling was obviously very prepared and had read all of the briefs and cases cited therein.

The Court started by hearing the arguments regarding personal jurisdiction.  Robert Atkins argued on behalf of the defendants.  He pointed out that neither Sony nor Take-Two has any physical offices or brick-and-mortar stores in New Mexico, nor does either company have any registered agents here. That is, the plaintiffs could not bring Sony/T2 before the Court under "general jurisdiction."

Atkins addressed "specific jurisdiction," where the plaintiffs could theoretically sue Sony/T2 under the New Mexico Long-Arm Statute.  Under that law, they could be sued if they "transacted business" within the state and had "sufficient minimum contacts" such that it would be fair to bring them before an NM court.

Apparently, in their response, the plaintiffs tried to allege that there was specific jurisdiction based on the number of PS2's & copies of GTA:VC sold within the state, and also based upon the existence & nature of the defendants' websites... Atkins basically showed that the plaintiffs couldn't prove facts sufficient to bring Sony/T2 within the jurisdiction of New Mexico courts...

In closing, Atkins made it a point to illustrate that, under New Mexico's long-arm statute, the lawsuit must "arise out of" the business that Sony/T2 do in this state - and that the Posey killings are too far removed from the purchase of a PS2 and video game to satisfy the statute.

The Court then addressed the motions to dismiss for Failure to State a Claim... Jack Thompson handled the argument on this one.  Jack essentially repeated the talking points of his complaint, as well as his usual stable of arguments (I predicted Columbine; APA says there's a causal link; Harvard brain scan studies; the "game" label is benign; these are "murder simulators" and not speech; I have four experts ready to testify; the "M" label is an admission of liability, etc.).

The Court acknowledged all of the "social & medical science" but said that Jack was weak on the legal argument - Jack responded by citing very heavily to the Rice v. Palladin case (the case which, by the admission of its defendants, involved a book that was intended as a how-to manual on putting out a hit). Jack made the claim that Palladin was dispositive of this case (but Sanders v. Acclaim specifically says that it is not applicable to this kind of fact pattern). 

Jack also tried to make the case that Sony/T2 would be responsible for the 3d party criminal actions of Posey because they introduced a product that they knew to be dangerous to minors (based upon "neurological difference" between teens and adults). 

Jack hung a lot of his case on the words of Sandra Grisham, the Cody Posey prosecutor.  He said that her phone call to him regarding the "public health issues" raised by the sale of these games, prompted his obscenity/nuisance claims against the defendants... 

Also, he repeated his "civil conspiracy" claims by alleging that the ESRB was the "fox guarding the henhouse" with respect to game ratings, and that the ESA has been "misrepresenting" facts to the citizens of this country concerning the sale of M-rated games to minors. He claimed that the FTC findings (42% rate) "prove us right." 

He essentially closed by saying that the 1st Amendment doesn't protect the sale of harmful products to children, and that these games harm both the player and the innocent 3rd party victims, and that "anybody who says that these games don't have some kind of impact" (or something to that effect) has to be "some kind of nut" (his words).

He anecdotally mentioned that the head of the ESA [Doug Lowenstein] threatened to sue CBS if 60 Minutes aired the Ed Bradley interview with Jack concerning the Alabama case. While he never came out & said "I represent another family in Alabama," Jack hinted that "we've got the same experts that we do in the Alabama case."  He, naturally, made a big deal about the Alabama case avoiding dismissal [and proceeding to trial, scheduled for 2008]

Robert Atkins handily rebutted Jack's arguments, first by stating that this case was very much about free speech and creative expression.  The Court asked him if that included marketing to kids, to which he essentially responded yes, because no law on the books prevents ads to kids.  Atkins rightfully relied heavily on both the James v. Meow Media and Sanders v. Acclaim cases in making his arguments; he called those cases the "roadmap" that builds on decades' worth of similar cases regarding TV, rap music and magazines.

Atkins also opined that Rice v. Palladin actually makes the Defendants' case for them, as the words of that opinion specifically limit its effect to the facts of that case.  The 4th Circuit in Rice specifically counseled against extending its ruling to the "free dissemination of ideas." 

Atkins also showed how the boilerplate general rule is that one does not ordinarily have a duty to prevent the criminal actions of others.  Jack had, apparently, clung to a narrow exception to that rule, which Atkins showed to be inapplicable.  Atkins mentioned that Jack's own experts testified in the run-up to the Alabama case that there was, in fact, no scientific evidence establishing the causal link [between violent games and real-world violence]...

The overall tone was pretty respectful - I came into the courtroom a few minutes before the hearing; there was no chit-chat or banter between the parties.  It was pretty silent until Jack asked aloud whether or not the Vikings beat the Bears last night...  Jack didn't engage in much mud-slinging or attacks on Take Two or Sony during the argument.  I wouldn't call him subdued or restrained, but he was definitely lower-key than we've seen him in prior cases.