At Volokh Conspiracy, Eugene picked up on a Connecticut decision addressing an issue that has grown increasingly prominent, as well as lucrative, under the current administration: Pardons. Three things are indisputable about the plaintiff in DeBarros v. Pedbereznak.

On October 13, 1996, the plaintiff shot Jermaine Lewis several times and killed him. At the same time, the plaintiff, using a second gun, also shot Scott Nash several times and severely wounded him. As a result of the foregoing, the plaintiff was charged with murder, attempt to commit murder, and first degree assault with a firearm. At trial, although the plaintiff raised self defense as a defense to the charges, the plaintiff was convicted of all the charged offenses including murder in a jury trial and was sentenced to life in prison.

The plaintiff appealed the conviction and the Appellate Court ordered a new trial [link added -EV]. The second trial resulted in a hung jury. The plaintiff then entered into a plea deal, pled to manslaughter and served a lengthy but reduced prison term. In 2022, the plaintiff was pardoned.

DeBarros sues for defamation, as well as the usual emotional distress causes, for being called a “murderer” on a podcast during the course of his running for office. Defendants moved to dismiss, and the court, after noting that this case had every legal earmark going against the plaintiff, lowered the boom.

The plaintiff asserts that his pardon establishes probable cause. The court finds this argument to be incorrect for two reasons.

First, although a pardon wipes clean a conviction and the effects thereof, it does not discern or change the actual facts concerning what happened in 1996. Thus, although a pardon can wipe away an official criminal record, it cannot wipe clean the public consciousness of what actually happened. A pardon cannot discern or change the underlying facts and truth.

Second, a pardon is an exercise of governmental power vested in the board of pardons which voids the effects of a conviction and wipes the official record clean, but does not determine innocence or the facts concerning what actually happened. Instead, pardons are given for many reasons and they provide that regardless of what happened and despite a judicial conviction, the person pardoned will be relieved of the legal consequences thereof. The pardon itself is not determinative of the falsity of the statements at issue, is not evidence of falsity, and is not itself evidence of probable cause.

DeBarros argued that calling him a murderer was defamatory, and proffered two arguments in support of his claim.

In view of the foregoing, the plaintiff has offered two pieces of evidence to establish probable cause. The first is his pardon. However, the pardon, in and of itself, is no evidence of the truth of what actually happened in 1996. The second piece of evidence is the Appellate Court decision to grant the plaintiff a new trial thereby undermining the initial conviction of murder. However, as noted, the absence of a standing criminal conviction is not determinative. Further, the Appellate Court decision ordering a new trial on procedural grounds is also not itself evidence of the falsity of the statements or of probable cause.

In the face of the foregoing, the defendants, and the public, know that the plaintiff shot and killed one man, shot and severely wounded another man at the same time with a second gun, was initially convicted of murder but that a new trial was ordered, subsequently pled to manslaughter, served a lengthy prison term, and was only subsequently pardoned…. [The plaintiff has failed] to establish probable cause that he will ultimately be able to prove actual malice, with particularity and to a clear and convincing standard, that underpins the court’s finding.

Unsurprisingly, the court dismissed the suit. Neither a pardon nor a reversal on procedural grounds has anything to do with what in fact happened. Neither is of any evidentiary value. Neither changes reality, whatever that reality happens to be.

The pardon is an act of mercy by the executive, in this case the Board of Pardons, and effectively eradicates the consequences of plaintiff’s plea to manslaughter and sentence. It is an act of purely legal significance, and as such, alleviates the defendant’s disabilities that follow from conviction. It’s a big deal and provides a significant benefit to the defendant. What it does not do, however, is changes the underlying factual reality. DeBarros did what he did, whatever that may be, regardless of the pardon.

Had DeBarros still be subject to his initial conviction for murder, or subsequent plea to manslaughter, that would have been legally conclusive evidence against his defamation claim. But he wasn’t, both because the appellate court held that the jury instructions at his murder trial failed to correctly charge the jury as to the intent element of murder and because he pleaded down to manslaughter, thus preventing retrial on the murder count.

But as the judge correctly noted, the fact that he no longer stood convicted of murder didn’t mean he didn’t commit murder. That he copped a plea to a lesser offense doesn’t mean that he wasn’t guilty of the greater offense. Lack of conviction for murder does not absolve him from the fact of his actions, but merely the legal consequences.

That said, a problem remains. A defendant is clothed in the presumption of innocence, removed only upon conviction. Here, the only standing conviction was manslaughter, since the murder conviction was reversed and by offering the plea to the lesser charge, the prosecution was never put to the test of proving murder beyond a reasonable doubt. While the pardon doesn’t relieve the plaintiff from reality, it also doesn’t prove it. Taking a plea means he conceded his factual guilt, at least to that extent. The pardon doesn’t make his admission to factual guilt do away.

But the defamation suit was premised on DeBarros being called a murderer. Murder is not merely some colloquial state, but a specific intent crime.  Even during a political campaign, one doesn’t become a murderer because of vibes or feelings. While it was clearly fair to call DeBarros a manslaughterer, or even a killer, the presumption of innocence remained in full force as to his being a murderer.

When defendants called DeBarros a murderer, they went beyond the established facts and took the risk of characterizing him as a person who committed the crime of murder. While neither the reversal nor the pardon changed the reality of his being a murderer if a murderer he was, there was also nothing in the prosecution to rely upon to establish that he was, in fact, a murderer.

If the defendants believed that to be the case, they should have been put to their proof in the defamation suit as there was no legal basis upon which to establish validity to their claim. It doesn’t mean the defendants would lose, but that they were not entitled to dismissal either. Much as the pardon doesn’t relieve the plaintiff from being called a murderer, it also doesn’t relieve the defendants from their burden of proving their case when the plaintiff remained legally innocent of murder, and the defendant knew or should have know that.