The Volokh Conspiracy
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"Fake Sherlock," or Fake Allegations by New York Magazine?
An interesting false light lawsuit filed today, Walter v. Herbert (M.D. Pa.), over New York magazine's "The Case of the Fake Sherlock" article (see pp. 11-19 of this PDF for a paywall-free version). The article had been introduced by the magazine with,
Richard Walter was hailed as a genius criminal profiler at murder trials, at forensic conferences, and on true-crime TV. In reality, he was a fraud. How did he get away with it for so long?
Walter attaches to his Complaint an American Association for Forensic Science Ethics Committee report that is introduced with this cover letter (of course, the "complaint" in that letter refers to the complaint against Walter submitted to the AAFS, not the Complaint in Walter's newly filed case):
This will be an unusual report because, in the case of dismissals, we usually offer only a brief description. The very public nature of this complaint, based on publication in a nationwide magazine, requires a detailed explanation.
When this complaint was first received, it was accompanied only by an article from New York magazine, written by David Herbert. (Attachment 1) When the Ethics Committee (hereafter "the Committee") members read the article, we all thought that we would be recommending some sort of sanction. By the time we finished our investigation, we all thought that the complaint should be dismissed. The article accuses the Respondent of fraud and also makes the Academy appear ineffective for not sanctioning him as a result of two previous complaints.
Because of the very public nature of the complaint, the Respondent, Mr. Richard D. Walter, Retired Fellow, General Section, has agreed that the Ethics Committee can waive the usual requirement of confidentiality when reporting this dismissal.
Much of the misconduct alleged in the New York article occurred many years ago and was therefore outside of the Committee's jurisdiction. Mr. Walter, however, gave a deposition in 2022, wherein several of the old allegations were discussed in detail. We concluded that any material misstatements in that deposition could be considered as within our jurisdiction. After reviewing the transcript, the Committee sent the respondent a pointed letter (Attachment 2) inviting him to respond to several apparent discrepancies. It was Mr. Walter's answer, accompanied by documentation that he provided (Attachment 3), and additional information the Committee obtained independently which ultimately persuaded the Committee that this complaint should be dismissed.
The following are issues that demonstrate that the New York article is highly biased and contains factual errors….
Walter claims that defendants "had knowledge of, or acted in reckless disregard as to, the falsity of the matter they communicated and the false light in which Mr. Walter was placed." Read here for more from the Ethics Committee report, which offers details and supporting documents.
The Ethics Committee report concludes that several of the magazine's allegations were false or unsupported by the evidence, though it of course doesn't speak to the writer's mental state. It also concludes, though, that one of the allegations ("On the stand at Drake's trial, Walter related an impressive—and fictional—resume. He falsely claimed that at the L.A. County Medical Examiner's Office, he had reviewed more than 5,000 murder cases.") was likely correct and Walter's earlier claim was likely wrong: "Mr. Walter gave false testimony in the Drake case in 1987, but that is beyond the reach of the current Committee's jurisdiction. It is highly unlikely that Mr. Walter consulted on 5,000 murder cases while working at LA CME. There were not that many homicides during his tenure."
You can also see more on the Drake case at Drake v. Portuondo (2d Cir. 2003), mentioned in the New York article; an excerpt, which is referring to Walter:
To aid the prosecution of a crime that was seemingly without motive, the prosecutor at the last minute called to the witness stand a putative expert who testified about a syndrome of sexual dysfunction that appeared to account for the particular, gruesome circumstances of the crime. Far-fetched as the defense theory was, the prosecution concedes that the expert was recruited late in the trial to plug a perceived hole in its case concerning intent. It is now clear that the expert's qualifications were largely perjured, and that the syndrome, dubbed "picquerism," is referenced nowhere but in a true-crime paperback. The prosecution successfully opposed a continuance sought by Drake's counsel, who protested that he had been unable to find a psychologist who had even heard of "picquerism."
Naturally, I don't know who is right here on the facts. I've e-mailed New York magazine for its view of the matter, and will update the post if I get a response or if the magazine files anything in court that responds to the substance here.
