On February 6, 2008, we launched the Awate Defense Fund (ADF) to raise funds for legal representation against the outrageous slander of a certain Sophia Tesfamariam. We formed a fund-raising committee made up of individuals and we also encouraged the formation of Subcommittee of Legal Experts (SLE), an independent entity that would provide guidance and expertise, depending on the direction that we would opt to proceed.

Thanks to your efforts, we were able to raise almost $35,000 within a month.  This update was provided to you on March 5, 2008 (See update date March 4, 2008.) http://www.awate.com/portal/content/view/4792/9/

This update, update # 3 dated September 24, 2008, is a follow up.  

We want to begin the report by apologizing to our readers who have been wondering on what has been the cause of the delay.  As you may (or may not) know, once one engages an attorney, it is best that one defers to the words and actions of the legal counsel, lest there be a contradiction of tactic or strategy.  Now that the process has reached a fork on the road, we feel free to report.

1.      Attorney:  We have engaged Clayborne E Chavers from The Chavers Law Firm of Washington, DC.   Mr. Chavers comes to us highly recommended—he has not only a passion for the law, but for Eritrea and its governance.

2.      Process: As we indicated to you in our fundraising efforts when we set our funding targets on phases, we consider the procedure we are engaged in to be a fairly long one.  Without tipping our hand totally, we can say that the way we envision it, the process will follow this pattern:

         1.  Demand for restitution.  Agree? End.  No response/deny? Go to next step.
   2.  Demand gain.  Agree? End.  No response/deny? Go to next step.
   3.     Litigation.  Prevail? Yes.  Lose? Appeal.

This is the plan, broadly speaking.   It is all contingent on your support and your input. We will keep you updated as often as we can.  After you digest the information, please feel free to contact us with your questions, recommendations, etc.

Below, please find the two letters that were sent by our attorney to Ms. Sophia Tesfamariam.
 

THE CHAVERS LAW FIRM, P.C.

May 20, 2008

Ms. Sophia Tesfamariam
[Address] 

Dear Ms. Tesfamariam:
            I represent Mr. Saleh Gadi, who was the subject of your article dated January 4, 2008, entitled "'Asmara Rose' Responds to Saleh Gadi and the Awate Team," hereinafter referred to as the "Article."  My purpose in writing is twofold:  (1) to demand a published apology for, and retraction of, certain libelous statements contained in the Article, and (2) to advise you of your liability for such statements.

            While there are numerous other aspects of the Article that are inaccurate, the following four statements are the focus of this letter.  First, you stated that "Gadi confessed to my source about raping a 13-year-old child in front of her mother."  You also stated that your alleged source "told me that Gadi showed no remorse for what he had done . . . he appeared to be a repeat offender" (ellipsis in original).  Second, you asserted that Mr. Gadi is or was a homosexual.[1]

            Third, you accused Mr. Gadi of murdering one Wedi Asawurta during an interrogation in the 1970s.[2]  Finally, you stated that Mr. Gadi "stole properties and monies of the prisoners assigned to their unit."  Each of these four statements in the Article is absolutely and categorically false.  Moreover, these statements are defamatory under both Virginia and California law.  Both states recognize the value of an individual's reputation.  The Virginia Supreme Court has observed:

In Virginia, as in other states, the law of defamation historically has protected a basic interest. The individual's right to personal security includes his uninterrupted entitlement to enjoyment of his reputation. Fuller v. Edwards, 180 Va. 191, 197, 22 S.E.2d 26, 29 (1942). "Society has a pervasive and strong interest in preventing and redressing attacks upon reputation." Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966).

Gazette, Inc. v. Harris, 229 Va. 1, 7, 325 S.E.2d 713, 720 (1985); see also Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 746, 257 Cal. Rptr. 708, 730 (1989) (recognizing society's interest in the value of one's reputation).

Both states allow claims to be based upon language that defames an individual by implication, inference, or insinuation.  Tolman v. Doe, 988 F. Supp. 582, 585 (E.D. Va. 1997); Adams v. Lawson, 58 Va. (17 Gratt.) 250, 1867 WL 2890, at *4 (1867); Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9^th Cir. 1984).  There is no question but that the Article's statements were defamatory.  A statement is defamatory if it tends to "harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."  Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 608 (E.D. Va. 2005); see also Adams, 1867 WL 2890, at *4 (language is defamatory if it "tends to injure the reputation of the party, to throw contumely, or to reflect shame and disgrace upon him, or to hold him up as an object of scorn, ridicule or contempt").

Obviously, the Article's statements meet the general test of actionable defamation.  More importantly, the statements constitute libel per se because they accuse Mr. Gadi of criminal acts and/or cause actual damage as a natural consequence.  Under Virginia law, the following words are actionable per se:

(1)        Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.

(2)        Those, which impute that a person is infected with some contagious disease, where if the charge were true, it would exclude the party from society.

(3)        Those, which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment.

(4)        Those, which prejudice such person in his or her profession or trade.

All other defamatory words which, though not in themselves actionable, occasion a person special damages are actionable.

Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 146-47, 334 S.E.2d 846, 849 (1985).

Similarly, "[s]tatements which falsely impute the commission of a crime are libelous on their face" under California law.  Condit v. Nat'l Enquirer, Inc., 248 F. Supp. 2d 945, 964 (E.D. Cal. 2002).  Section 46 of the California Civil Code provides that the following categories of statements are defamatory:

1.         Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2.         Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3.         Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects, which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4.         Imputes to him impotence or a want of chastity; or

5.         Which, by natural consequence, causes actual damage.

The Article's false and malicious statements that Mr. Gadi raped a 13-year-old girl, murdered a prisoner, and stole property from prisoners are clearly defamatory per se because these statements impute the commission of heinous crimes.  See James v. Powell, 154 Va. 96, 112, 152 S.E. 539, 545 (1930) ("To charge one with robbery is libelous and actionable per se."); Rider v. Superior Court, 199 Cal. App. 3d 278, 285, 244 Cal. Rptr. 770, 774 (2d Dist. 1988) (accusation of raping a minor girl is defamatory per se); Kaelin v. Globe Commc'ns Corp., 162 F.3d 1036 (9^th Cir. 1998) (imputing the crime of murder is defamatory); Church of Scientology of Cal., 744 F.2d at 696 (although defendant did not specifically accuse plaintiff of attempting to cause defendant's death, it was reasonable to infer defamatory meaning from defendant's remarks and, therefore, plaintiff's defamation complaint was sufficient to withstand motion to dismiss for failure to state claim upon which relief could be granted).

The Article's statements imputing homosexuality and homosexual conduct to Mr. Gadi are also defamatory per se.  In Schomer v. Smidt, 113 Cal. App. 3d 828, 170 Cal. Rptr. 662 (4^th Dist. 1980), disapproved on other grounds in Miller v. Nestande, 192 Cal. App. 3d 191, 237 Cal. Rptr. 359 (4^th Dist. 1987), the defendant made statements which caused others to infer that the plaintiff was a lesbian.  113 Cal. App. 3d at 831, 170 Cal. Rptr. at 663.  In an action against the defendant, the court ruled that the statements were defamatory per se, reasoning as follows:

The Legislature of this state has decreed that sexual conduct, of any sort, between consenting adults is legal. We are not concerned with legality but rather with chastity. To hold that chastity applies only to fornication borders on the ridiculous. Kerr v. Kennedy (1942) 1 KB 409, destroys this distinction.

Firstly, it is quite irrelevant that lesbianism is not a criminal offense either, but no one disputes that it is covered by the term 'unchastity' . . . what imputations on a woman, qua woman, in the sphere of sexual morality, are grave enough to be actionable without proof of pecuniary loss . . . can any distinction be drawn on this basis between adultery and fornication, on the one hand, and unnatural relations with other women, on the other, except that the imputation of the latter is, if anything, more wounding, . . . more likely to spoil the victim's prospects of marriage? No such distinction can . . . be drawn.

To hold that chastity embraces only heterosexual intercourse would offend the majority of the public. Webster's Third International Dictionary, at page 379, defines "chaste" in 2(a) as "abstaining from all sexual relations.'" The term "unchastity" might have some relation with "pornography," wherein Justice Potter Stewart declared that he could not define pornography but stated, "I know it when I see it." (Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793.) It would appear to this court, that despite the sexual revolution and the freedom of action and expression now extant, there is a distinction, which must be drawn between proper, moral and legal conduct. Based on the new thinking a homosexual or heterosexual act could be proper, legal and questionably "moral." But everyone has a right to refrain from such activity and to enjoy an unsullied reputation of restraint. To state that one carries on sexual conduct be it alone, with members of the opposite or similar sex imputes to them a "want of chastity," which in the eyes and minds of their peers might and could subject them to disgrace, ridicule, damage to reputation, lacking virtue or reliability. We find that a false imputation of the commission of a homosexual act is slanderous per se.

Id. at 835, 170 Cal. Rptr. at 666 (emphasis added).

As you know, attitudes toward homosexuality are far more negative and hostile among members of the Eritrean community, in the United States and abroad, who were the primary targeted readership of the Article. These attitudes toward homosexuality render your false statement about Mr. Gadi all the more egregious, and could place him at risk of physical attack. In Nazeri v. Mo. Valley Coll., 860 S.W.2d 303 (Mo. 1993), the court recognized that imputations of homosexuality carry far more stigma among particular segments of society:

The harm inflicted by defamation is particularly sensitive to the characteristics and situation of the injured party and of the society that surrounds him or her. Attitudes change slowly and unevenly among different groups. Despite the efforts of many homosexual groups to foster greater tolerance and acceptance, homosexuality is still viewed with disfavor, if not outright contempt, by a sizeable proportion of our population. Moreover, engaging in deviant sexual intercourse with another person of the same sex is still a class A misdemeanor in this state. ' 566.090, RSMo 1986. State v. Walsh, 713 S.W.2d 508, 510‑12 (Mo. banc 1986). We hold that a false allegation of homosexuality is defamatory in Missouri.

Id. at 312.

Mr. Gadi is a private figure who has not been a member of any political group since 1979.  His employment has always been in lower-level private-sector positions.  Moreover, you are not a media defendant such as a newspaper or broadcaster, and, in any event, the statements in question relate to private rather than public conduct.  Therefore, you cannot hide behind First Amendment protections or any requirements of heightened burdens of proof or actual malice.  Even if it could be demonstrated that Mr. Gadi is a public figure, it is likely that through the discovery process, we can develop evidence to show that your Article rests upon, at most, sources' statements that were known to be false or published with reckless disregard to whether they were true or false.

Evidence of negligence and/or recklessness is readily apparent from the text of the Article itself.  For example, some of the statements themselves are inherently contradictory.  If a hypothetical individual were a homosexual, it is illogical to believe that he would rape a female rather than another male.  Furthermore, the Article states that "Saleh Gadi and Haile Woldeselassie knew that they would be implicated in the murder of that battalion leader and more so they escaped from justice and fled."  There is no way that you or any source could know what Mr. Gadi "knew," particularly when you did not interview Mr. Gadi before writing the Article.

You also state in the Article that "[n]ot only did they flee from justice, they also stole properties and monies of the prisoners assigned to their unit."  You cite no proof or source whatsoever in support of this false statement.  Other statements in the Article purportedly rest upon anonymous sources, and reflect rank speculation.  In Jackson v. Paramount Pictures Corp., 68 Cal. App. 4th 10, 80 Cal. Rptr. 2d 1 (2d Dist. 1998), the court observed:

The tort of defamation exists whenever a false and unprivileged statement, which has a natural tendency to injure, or which causes special damage is communicated to one or more persons who understand its defamatory meaning and its application to the injured party. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, ' 471, p. 558; id. ' 476, pp. 560‑561.) Moreover, when a party repeats a slanderous charge, he is equally guilty of defamation, even though he states the source of the charge and indicates that he is merely repeating a rumor. (5 Witkin, Summary of Cal. Law, supra, ' 478, p. 562.) "If A says B is a thief, and C publishes the statement that A said B was a thief, in a certain sense this would be the truth, but not in the sense that the law means. . . . [I]t would be but a repetition by [C] of a slanderous charge. His defense must consist in showing that in fact B is a thief." (Gilman v. McClatchy (1896) 111 Cal. 606, 612, 44 P. 241; see also Ray v. Citizen‑News Co. (1936) 14 Cal.App.2d 6, 8‑9, 57 P.2d 527 ["A false statement is not less libelous because it is the repetition of rumor or gossip or of statements or allegations that others have made concerning the matter."]; Arditto v. Putnam (1963) 214 Cal.App.2d 633, 639, fn. 2, 29 Cal.Rptr. 700.)

Id. at 26-27, 80 Cal. Rptr. 2d at 9.

The law presumes that an individual who is the victim of false statements that are defamatory per se has sustained damages, even without evidence of actual damages.  Tolman, 988 F. Supp. at 587.  Compensatory damages may be recovered for injury to reputation, humiliation, embarrassment, emotional distress, mental anguish, and lost income.  Id. at 587; Carney v. Santa Cruz Women Against Rape, 221 Cal. App. 3d 1009, 1022, 271 Cal. Rptr. 30, 38 (6^th Dist. 1990).  In view of the extremely offensive statements in the Article, and of their cumulative nature, it is highly likely that a jury would award substantial compensatory damages to Mr. Gadi if this matter proceeded to trial.  Moreover, upon proof of malice, Mr. Gadi would be entitled to an award of punitive damages, which would likely be substantial in a case of this kind.

I trust that you will consider your potential liability if you are inclined to reject Mr. Gadi's desire for a retraction from you. While Mr. Gadi welcomes legitimate political debate, your false, personal, ad hominem attacks on him are unacceptable, unlawful, and ill advised. Mr. Gadi has authorized me to demand that you post, within two weeks from the date of this letter, a prominent and comprehensive apology and retraction of the Article insofar as it relates to Mr. Gadi.  Mr. Gadi further demands that you refrain from publishing any similar articles about him in the future. Should you refuse to comply, it is our intention to file suit and litigate this matter against you personally in court. We will, if we succeed and it is likely we will, collect from you very large sums of money. This will be a very public matter and please understand you will be personally denounced as a lire and fraud for the false claims you have made.

          Please know that you should feel free to contact me if you have any questions.

Sincerely,

THE CHAVERS LAW FIRM, P.C.

August 27, 2008

Ms. Sophia Tesfamariam
(Address)

Dear Ms. Tesfamariam:

I am writing to follow up on my letter of May 20, 2008, a copy of which is enclosed.  As I have received no response to my previous letter, I am preparing to file a defamation action against you on behalf of my client, Saleh Johar, formerly known as Saleh Gadi.  This is my final attempt to initiate negotiations aimed at resolving this matter short of litigation. Please understand that there will be no more efforts from me to resolve this matter unless I receive a reply from you within ten business days from your receipt of this correspondence.

I will not reiterate the substance of my earlier letter, as it clearly establishes that the statements contained in your article are defamatory per se.  Instead, I will discuss damages that we would expect to recover if this matter goes to litigation.

That decision is entirely within your control.

Mr. Johar is entitled to recover compensatory damages for injury to his reputation, pain, embarrassment, humiliation and mental suffering, as well as out-of-pocket losses and other actual pecuniary losses.  Gov't Micro Resources, Inc. v. Jackson, 271 Va. 29, 47, 624 S.E.2d 63, 73 (2006); Stamathis v. Flying J, Inc., 389 F.3d 429, 439 (4^th Cir. 2004).  In cases involving libel per se, "even in the absence of any evidence of pecuniary loss, the damages which the injured party is entitled to recover may be substantial."  Poulston v. Rock, 251 Va. 254, 261, 467 S.E.2d 479, 483 (1996).

Based on the case law and the extreme and outrageous falsehoods that permeate your article, Mr. Johar and I am confidant that a Virginia jury would award a substantial verdict on his behalf if this matter goes to trial.  If you wish to avoid litigation, I am willing to undertake settlement negotiations if you contact me within ten days of your receipt of this correspondence. I have been authorized to inform you that you will need to communicate in a fashion acceptable to my client, total redaction of your pervious defamatory publications.

Please understand that this matter will not be further ignored or discounted. You are liable, you have committed a wrong, you will either resolve this in a fashion that will be costly to you and protracted through the courts of the United States Federal District Court in Alexandria VA. or you will avail yourself to take advantage of our offer to resolve this matter on am informal bases where you will withdraw the defamatory statements you have made and apologize for making these falsehoods.

I urge you to take advantage of this opportunity as soon as possible. Please feel free to have your attorney to contact me, if you like.

                                                      Sincerely,
                                                      Clayborne Edwin Chavers, Sr.

Enclosure: