The New York based criminal defense firm of Crotty Saland PC is once again in the news. Jeremy Saland, one of our top criminal defense attorneys and a lawyer who previously served as a prosecutor in Manhattan, was sought out by the Los Angeles Times for his legal insight into the David Letterman extortion and blackmail case.
The Los Angeles Times asked Mr. Saland to comment on Mr. Halderman’s possible defense alleging that Mr. Letterman sexually harassed his female employees. Citing New York Penal Law section 155.15(2), Mr. Saland acknowledged that it may be relevant if done in narrowly crafted way. Relevant, however, does not mean it will necessarily be a winning argument.
Under New York Penal Law section 155.15(2) it is an “affirmative” defense to extortion if the accused “reasonably believed the threatened charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of such threatened charge.” Applying that defense here, the evidence at trial trial will have to establish that Mr. Halderman reasonably believed that Mr. Letterman sexually harassed Ms. Birkitt, threatened to expose this harassment and that his sole purpose was to compel Mr. Letterman to take reasonable action to make good on the harassment. On its face, this is a very difficult task. It is one thing to threaten to report your neighbor to the police if he does not pay for scratching the paint on your car or breaking out the back window of your vehicle. It is another to demand 2 million dollars for sexual harassment that may never have existed. First, the defense will need to establish that Mr. Halderman reasonably believed that Ms. Birkitt, or another person, was the victim of sexual harassment. Assuming that he is successful in doing that, the next step would be to establish that his sole reason for demanding the $2,000,000 was not for self gain, but to “make good” on the harassment that the particular woman was exposed to.
The prosecution would certainly try to tear down this defense by, among other things, poking holes in how the Mr. Halderman went about demanding the money. Since Mr. Halderman was not a victim of harassment, was he doing it on the behalf of someone else? Why not mention this harassment outright as opposed to couching his demand in the term of “screenplay treatment?” These are just a couple of the angles the prosecution could use to attack this defense.
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