- May 17, 2014
Gloucester’s Jane Daniel, publisher of a Holocaust memoir that turned out to be a lie, has been vindicated in court after more than 15 years of litigation brought on by the author of the book.
The years of litigation began when Belgium-born Misha Defonseca sued her publisher for breach of contract. At the time, no one doubted Defonseca’s “true” account of surviving a trek across Europe as a young girl, when she was taken in by a pack of wolves and even killed a Nazi soldier.
In the chaos of the war, the author claimed, she lost her true identity.
In 1998, a jury at Middlesex Superior Court awarded Defonseca $7.5 million and $3.3 million for her ghost writer Vera Lee — and the judge more than tripled that award, increasing the overall amount to $22.5 for Defonseca and $9.9 million for Lee.
Daniel, however, appealed.
Defonseca — who served as her own attorney throughout numerous appeals — and Lee’s lawyer both argued back in 2008 that the truth of the tale didn’t even matter. They said the verdict and appeal rendered that Daniel mishandled royalties and the U.S. marketing of the book, which had been a best-seller in Europe. At that point, Daniel began a 10-year quest to find the truth about Defonseca’s identity.
What she discovered with the help of two genealogists — one in Massachusetts and one in Belgium —was that Defonseca was not Jewish but Catholic, and safe with her grandparents in Brussels at the time she claimed to be traversing Europe on foot and living with wolves.
“At the time she said she was part of a pack of wolves in the Ukraine, she was sitting in first grade at school learning the alphabet,” Daniel said in a telephone interview this week.
This latest ruling was between Daniel and Defonseca, when the court affirmed an earlier appellate decision rendered in favor of Daniel. In the April 29 opinion of the appellate court, the three appellate judges upheld an earlier court’s ruling.
“This is the third, and hopefully the last, of a trilogy of cases that have played out before us,” Judge J. Kantrowitz wrote on behalf of the court. “Having twice before considered issues relating to the publication of the defendant’s memoir of survival during the Holocaust (the details of which have now been revealed as false,) we are now asked to decide whether it was proper for the court below to vacate a substantial judgment against the plaintiffs.
“We conclude that it was.”
The story in question was first published in 1997 by Daniel in a book titled “Misha: A Memoire of the Holocaust Years.” The book was not popular in the United States but it was translated into 18 languages and made into a French film called “Survivre Avec Les Loups.” It even became an Italian opera.
After hearing about Defonseca’s story, Daniel asked Defonseca to write the book. Defonseca told her that she did not know the names of her parents, her birth date, or place of birth, making the facts impossible to check. Defonseca had been speaking for years about her experiences at diverse venues, including synagogues and universities such as NYU and Brandeis, and no one had questioned it before.
In the publishing contract, Defonseca warranted that the work was true. Daniel fact-checked as much as she could with what little information she had. However, after losing at the initial trial, Daniel never stopped fighting.
Once the publisher was able to prove that Defonseca was a fraud, Daniel went back to court with Gloucester attorney Joseph Orlando, who was not part of the earlier court cases.
“If Mount Ivy Press failed to properly market the book, the bottom line is it had no market value as a fraud,” Orlando said at the trial in 2008. “We contend it would not have survived summary judgment, and damage, if any, would have been minuscule. The judge made a decision based on the illusion that the memoir was accurate.”
Daniel knew it was going to be a tough fight.
“Everyone who looked at my case said, ‘you’re screwed’ because the statute of limitations is one year in this kind of case,” said Daniel. “But when I went to Joe Orlando, who is walking distance from my house, he looked at the papers and said, ‘I think we can help you.’
“He told me that the statute of limitations for new evidence is one year, which had long since expired, but fraud on the court has no statute of limitation,” Daniel continued. “It’s a very narrow part of the law — a fraud specifically involving an officer of the court. Misha acted as her own attorney for part of the process and by doing so, she stepped into the shoes of a lawyer, an officer of the court. It’s just one wacko twist after the other.”
Even the court acknowledged the unusual nature of the case when one judge wrote “…The present case is unique.”
Court records note that Defonseca was born “Monica Ernestine Josephine De Wael on May 12, 1937, in Etterbeek, Belgium, and was baptized on May 19, 1937,” according to the court papers. Defonseca just turned 77.
The findings state that the court agreed with the second motion judge that “whether Defonseca’s belief was reasonable or not, the introduction of new evidence of the actual facts of her history at the trial underlying Mt. Ivy I could have made a significant difference in the jury’s deliberations.”
Therefore, the court found the judgment in Mt. Ivy I — that called for Daniel having to pay Defonseca $22.5 million — must be vacated.
“This case has had a legal life of over 15 years,” wrote Judge Murtagh. “All involved have been bloodied. Defonseca’s story has been shown to be false. As for Daniel, she also has been shown to have acted highly inappropriately … Hopefully, the saga has now come to an end.”
Orlando had strong comments about Defonseca and the multitude of lawsuits she brought upon Daniel.
“It’s not over but what’s finally happened is that it has been determined without question that Misha is a fraud, and she defrauded our client,” he said. “The jury was tainted by the lies and deception.
“We are a long way from done because now we have a client who has paid out of pocket a great deal of money — many thousands of dollars — and we need to recover that,” he added. “She also has interests in the book’s copyright, which she lost with the jury verdict and we want to recover that.”
Brian McCormick, an attorney who works with Orlando, said they need to determine what happened to that book in terms of sales and profits. Orlando said they want to right the wrongs inflicted on Daniel.
“Jane has been so badly wronged,” Orlando said. “They have stolen more than her money. They have stolen a good part of her life, and we are trying to give her back as much of that as we can.”
