When it comes to yet another legal update in the sordid saga that is Johnny Depp and Amber Heard’s Virginia defamation trial, I know what you’re thinking: Here we go again. As someone who’s been there to document every court filing, callous social media response, and gummy bear gobble, I hear you. Unfortunately, the battle drags on.
In the last month, both Depp and Heard have sought to appeal the verdict, which concluded both parties had defamed each other—Heard, via her Washington Post op-ed, and Depp via a statement from his attorney that argues he shouldn’t be held accountable for defaming her. Heard’s appeal, filed by her new representation, David L. Axelrod and Jay Ward Brown of Ballard Spahr (a firm specializing in constitutional law), is aptly leaning all the way into First Amendment arguments and excoriating the actions of Judge Penney Azcarate.
“After Depp filed this case, the United Kingdom High Court of Justice ruled in a separate defamation action brought by Depp that Heard’s abuse allegations were true,” the 68-page document reads. “The trial court should have given preclusive effect to that 129-page decision, which followed a three-week trial at which Depp, Heard, and 24 other witnesses testified.” Though the filing’s broad argument is that this case shouldn’t have gone to trial at all, the document details 16 specific court errors. The venue of the trial is among the weightiest.
“None of the conduct relevant to Depp’s defamation claims occurred in Virginia,” the document reads. “Depp is a resident of California. The incidents that led to Heard obtaining the restraining order took place in California, not Virginia.”
Virginia, the attorneys argue, is “a wholly inconvenient forum with no connection to Depp or any meaningful connection to his claims.” The document also contends that it played a significant role in why few people were able to testify on Heard’s behalf. “Numerous courts interpreting Virginia law have concluded that the place of the wrong for internet defamation claims is where “plaintiff incurs the greatest reputational injury,” which typically is their “home state.”
Because of the choice of location, Heard “suffered substantial prejudice,” given her former team was not able to subpoena witnesses to testify on her behalf. Heard’s attorneys directly referenced a statement made in court by Depp’s attorney, Camille Vasquez: “You may have noticed that no one showed up for Ms. Heard in this courtroom other than her sister. Other than a witness who traveled to Virginia for her as a paid expert. This is a woman who burns bridges. Her close friends don’t show up for her.”
Heard, the attorneys go on to note, wrote the op-ed in California before sending it to the American Civil Liberties Union (ACLU) in New York. The ACLU then gave the op-ed to The Washington Post, which published it online. Their client, they allege, never actually had contact with any Washington Post employee, nor had she stepped foot in the state of Virginia, making it all the more befuddling why the case would be heard in the state.
Other errors include the exclusion of key evidence supporting Heard’s abuse claims—namely, any mention of the U.K. trial verdict that found Depp had, in fact, abused Heard on 12 occasions, and damning text exchanges that seemingly confirm abuse had occurred, including that of Steven Deuters, Depp’s former assistant.
For those who’ve been paying attention, both Heard and Depp’s appeals are entirely predictable and, in Heard’s case, justifiable. In the immediate aftermath, I spoke to a Virginia defamation attorney about the host of legal head-scratchers within the trial—specifically, how proceedings that were intended to examine a singular op-ed that never directly alleged any variation of abuse, devolved into a full-blown domestic abuse trial.
“The whole trial, for the most part, came across to most people—I believe—as a question of which of these two sides is the real abuser,” Lee E. Berlik, told Jezebel via phone interview in June. “Who is the better spouse? Who is the worst spouse? Do we believe Johnny or Amber? Whose side are you? But really, that’s not what this case was supposed to be about.” Additionally, Berlik highlighted the fact that the op-ed didn’t specifically mention Depp, or anything that may or may not have transpired at the time of their relationship in 2016. “This whole case and a lot of the evidence tended to be about all the details of what she apparently claimed back in 2016,” he said.
The bottom line of Heard’s appeal? “That holding, if allowed to stand, undoubtedly will have a chilling effect on other women who wish to speak about abuse involving powerful men.” I’m no attorney, but no arguments there. Now, per Virginia law, a group of judges will have the onerous task of deciding which appeal be allowed to move forward—if either.