Following a jury verdict finding Krawatsky liable in the sexual abuse of two boys at Camp Shoresh, Krawatsky filed an appeal to try and overturn the results. While it’s uncommon for jury verdicts to be overturned on appeal, Krawatsky was no doubt encouraged to appeal anyway by the same people who had already sunk $2.5 Million into defending him against the accusations in the first place and suing the parents of the victims for defamation. In losing the appeal, not only did Krawatsky cost them a fortune to try, but also put him on the hook for the appellees’ costs.

Krawatsky’s central arguments addressed by the court were the following:

The judged erred in trying the question of whether Krawatsky had sexually abused his victims before trying his defamation claim

The judge erred in dismissing the Jewish Week and Hannah Dreyfus from the case shortly before trial in summary judgment after finding that Krawatsky was a limited purpose public figure where the sexual abuse allegations were concerned

The judge was biased against Krawatsky

The judge improperly excluded expert testimony from Dr. Barbara Ziv about the children’s credibility

The judge gave an improper jury instruction

The judge shouldn’t have allowed punitive damages to be assessed after the jury had awarded compensatory damages of $1

The court case was initiated by Krawatsky when he filed a defamation case against the parents, the Jewish Week, Hannah Dreyfus, and Chaim Levin. The parents for discussing the allegations that he contended were false, Levin for publishing an article on his blog accusing Krawatsky of sexually abusing children, and Dreyfus and the Jewish Week for their series of articles on the topic. The parents counter-sued Krawatsky for sexually abusing their children.

Before jury selection in the trial the judge informed the parties that he would be trying the case in the following order:

The parent’s claims against Krawatsky to determine as a matter of fact whether the abuse happened > If the jury found Krawatsky liable the jury would move on to the damages phases to determine how much Krawatsky owed them > After a determination was made about whether the central allegations were true the jury would address whether Krawatsky was defamed > If Krawatsky was defamed, what damages are owed to him

What actually ended up happening was that Krawatsky was found liable for the sexual abuse of two of the three boys, ordered to pay $1 for each in compensatory damages, and $8,000 each in punitive damages.

Krawatsky argued on appeal that the judge’s decision to order the trial as he did disadvantages Krawatsky because his lawyers had prepared to argue as a plaintiff not a defendant, that there wasn’t enough notice given before the change was sprung on them, and also generally waaaaaaah no faaaaaaaair we called it first! The appellate court found that the judge had not erred in ordering the trial as he had because obviously if you have two competing claims – one alleging that a thing happened and the other arguing that it didn’t and claiming in public that it did was defamatory – the first issue to settle is whether or not the thing actually happened. Truth is generally an absolute defense to defamation in the United States, and it was therefore crucial to this cluster**** of a case to first determine whether or not Krawatsky had sexually abused those boys before determining whether everyone else had defamed him by accusing him of molesting them.

At trial Krawatsky brought Dr. Barbara Ziv as an expert witness hoping to use her to call the kids liars. Ziv had been paid about $250,000 for a very extensive report on the case and its various parties. Ahead of trial the judge issued a ruling severely limiting what she could discuss on the stand. In other words, he limited her to testifying generally about the issue of sexual abuse, and behaviors that are commonly recognized as reactions to being sexually abused. She was barred from testifying about whether or not the victims were sexually abused. At trial she was allowed to testify about the issue generally, what grooming typically looks like, the typical effects on victims, and common behaviors of pedophiles in general. She was not allowed to testify to specifics about the accusations against Krawatsky or the credibility of the victims.

Krawatsky’s lawyers believed that was unfair likely because so much money had been spent and they were looking forward to using her to call the victims liars and claim that Krawatsky didn’t fit the profile. In fact, Krawatsky’s attorneys repeatedly tried to elicit testimony from her specifically about the victims’ credibility and objection after objection was sustained to prevent that. At one point it got so bad that the judge excused the jury and directly addressed Dr. Ziv and Krawatsky’s lawyers telling them to knock it off.

The appellate court correctly affirmed that the judge had been correct in limiting Ziv’s testimony as it had. The question of whether Krawatsky abused those children, and therefore the question of whether or not the victims’ testimony was credible, was the sole domain of the jury. The role of a jury in a trial is to be the finders of fact in any given case. If there’s a question of whether or not something happened, evidence is presented to the jury and then they’re asked to decide, based on the evidence before them, if the thing happened or not. It’s inappropriate for an expert witness to testify to the credibility of another witness and by extension try to be the arbiter of whether or not something did happen. They are allowed to educate the jury to ensure that they understand the issue and are equipped to apply that understanding to the question of whether or not something happened. Although it’s understandable that the defense was annoyed. A quarter-million dollars is a lot of money to waste.

In a rather arcane argument in the minutiae of the specifics of the civil tort for assault, Krawatsky’s lawyers argued that when the judge gave the jury instructions on how to evaluate one of the victim’s causes of actions for assault he incorrectly instructed them with the instructions for criminal assault rather than the accepted instruction for civil assault. The argument hinged on, first, the differences in Maryland law between civil and criminal assault and whether it was required for the victim of the assault to be in fear of the impending assault for a defendant to be found liable for civil assault, and, second, whether the judge had failed to give instruction to the jury that included that element.

The appellate court broke down the issue into two parts: Does civil assault actually require that the victim be in fear of the impending assault, and did the judge give the right instruction. To the first point they analyzed the different potential elements of civil assault. According to Maryland law, civil assault can either be threatening to commit a battery against someone and causing them to fear the threatened battery, or actually attempting to batter someone in which case the victim is only required to be placed “in reasonable apprehension” of the impending battery. In this case the victim was claiming the latter type of assault – that Krawatsky had actually attempted to batter that victim. The question then was whether the victim was placed “in reasonable apprehension,” and whether or not the judge had given the jury that instruction before asking them to determine if Krawatsky had in fact assaulted that victim.

The appellate court concluded that the jury instruction was actually lacking that element and then turned to the question of whether that should matter – in other words, if that was enough to have prejudiced the jury and made them return an incorrect verdict. That question hinged on whether or not, had the jury received the correct instruction, they would have returned a different verdict for that victim. In reviewing testimony and evidence presented at trial the appellate court determined that enough evidence had been presented to demonstrate that the victim had clearly been fearful of what Krawatsky was doing.

Had the court given the correct jury instruction, the appellate court concluded, the only way the jury could have returned a different verdict on that victim with the correct jury instruction was somehow if they believed every single other element of the testimony but for some odd reason chose not to believe the testimony regarding that victim’s fear and apprehension. Since it was clear that they did believe the witnesses about every other element it was unreasonable to assume that they would have disbelieved that specific element if given a jury instruction asking them about the victim’s apprehension.

Krawatsky raised the issue of punitive damages being awarded after the jury awarded only nominal $1 damages for each victim. The appellate court first noted that as a technical matter the issue wasn’t properly preserved for appeal at the time. In other words, when the judge instructed the jury on finding punitive damages Krawatsky’s lawyers failed to object on the grounds that they had only awarded nominal damages, and was therefore barred from raising the issue on appeal. In a footnote they addressed the actual argument saying that there was a difference between different kinds of nominal damages a jury could award in a trial. The first is nominal damages awarded where a party is found liable for a clearly compensable injury but the jury, for whatever reason, is unable to figure out the amount of damages to award. Then there’s nominal “technical invasion” damages which is a way for a jury to recognize that a law was broken even though no actual damage was caused. Given that this case was clearly the former, it was appropriate for the jury to award punitive damages after awarding nominal compensatory damages.

When the trial seemed not to be going their way, Krawatsky’s lawyers put on an impressive show for everyone assembled in the courtroom of accusing the judge of bias, citing eye-rolling and other faces made by the judge in response to things said by Krawatsky’s lawyers. It should be noted that Krawatsky’s lawyers had blatantly and repeatedly tried to get around rulings by the judge, especially during Ziv’s testimony, overall acted like bullies toward opposing parties and witnesses, and generally acted belligerently over the course of the trial. Despite this, the judge had handed down rulings even-handedly, at times ruling for one side and at times for the other. This culminated in a 10-minute or so tirade by Krawatsky’s lawyers during which they berated the judge and accused him of bias while he sat calmly and listened.

The appellate court in considering this issue first noted that they had failed to preserve timely objections for appeal when they allege the biased rulings happened. According to Maryland law if they were going to make an argument of bias on appeal they would have had to place the objection on the record when the biased rulings happened. Because they didn’t the appellate court wouldn’t consider those issues. The one issue of alleged bias they did address was the judge making faces. In addressing that the court pointed to the fact that the face-making and eye-rolling was disputed by everyone in the courtroom, with Krawatsky’s lawyers claiming that it was happening, and the judge and plaintiff’s lawyers all disagreeing. Absent any other proof, and in examining the actual trial transcript and record of rulings for each side, the court could find no indication of bias.

Finally, the issue of the summary judgment dismissal of the Jewish Week and Hannah Dreyfus from the case before trial was addressed. The defamation defendants had claimed that for the purpose of this controversy Krawatsky was a public figure because by the time the Jewish Week had started publishing articles about the alleged abuse the public discussion about it had been going on for years, and Krawatsky had inserted himself into the public controversy by hiring a PR firm to suppress Google Results about the allegations against him.

Public figures are treated differently in defamation cases. Defamation against private citizens requires that the person making the statements was negligent in determining whether or not they were true. Defamation against a public figure requires that the person making the statements have shown “actual malice” in making them. In other words, that they either knew the statements weren’t true and said them anyway, or showed a reckless disregard for whether or not they were true. In order to be considered a public figure, or a limited purpose public figure, the court must determine whether there was a public controversy about the subject of the statements, and whether the plaintiff participated in the public controversy to a sufficient extent to make them a public figure in the context of that controversy.

In Krawatsky’s case the controversy had been public for a number of years before the Jewish Week published anything about it, and Krawatsky inserted himself into that controversy by hiring a PR firm to suppress Google results negative to his reputation. Because Krawatsky was found to be a public figure for the purpose of this public controversy, and because the court determined that it couldn’t be argued that Dreyfus and the Jewish Week had acted with actual malice, they were dismissed from the defamation case in summary judgment.

In addressing whether the court had correctly dismissed the Jewish Week and Hannah Dreyfus, the appellate court noted that given the outcome of the trial – that Krawatsky was found to have abused two of the boys – the issue was rendered moot, but noted in a footnote that even if it were not moot the court had ruled correctly in dismissing the Jewish Week and Hannah Dreyfus.

Whether Krawatsky will blow any more of his wife’s brother-in-law’s money on appealing to the Supreme Court of Maryland is anyone’s guess, but after this ruling his chances are looking slim.

Link to full decision: https://www.courts.state.md.us/sites/default/files/unreported-opinions/0091s24.pdf