I began my blog by putting up chapters of a book
I had begun, “Bestseller!” which
was about a bestselling Holocaust memoire that my tiny publishing
company had published. That “memoire” spawned a massive
lawsuit and resulted in a $33 million verdict against me. When I
began the blog, I explained that I was writing “Bestseller!” in
real time and that I didn’t know how the story of my struggle
Through an amazing twist of fate, I was contacted by a forensic
genealogist who had read my blog. She was able to prove that the
memoire was a massive literary fraud. I had hoped that the truth
would allow me to overturn the $33 million judgment that was awarded
to the perpetrator of the hoax and her co-author. For many months
I had been feeling my way in the dark, but when the truth was revealed
I had high hopes that I would, at last, find justice.
“Bestseller!” was ready to go to the printer when the
story took yet another surprising turn. The complaint I filed to
overturn the $33 million judgment (based on fraud on the court) was
dismissed. I will now be filing an appeal. That will be my last chance
to find justice. If the appeal fails, my eleven-year struggle will
end in defeat. I will lose everything – including my home,
which is also my livelihood (I run a B&B.)
At the last minute I added a postscript to the book that explains
what my complaint was about and what happened. I am posting it here.
The rest of the bizarre, fascinating, appalling account is in the
book. It is a scathing indictment of our legal system.
I want to extend my appreciation to the kind souls, many total strangers,
who have expressed their support. You, dear ones, have helped me
through some very dark times.
- Jane Daniel
Post Script: Does the Truth Matter?
Monday, October 13, 2008
I write this just as this book is going to press.
Following Misha’s confession, my new attorney, Joe Orlando,
prepared a complaint to overturn the judgment against Mt Ivy and
me. It was filed on April 8, 2008, almost six years to the day since
the judgment entered. To overturn a judgment, the rules required
that I go back to the same court that issued the judgment. For me
it was returning to the scene of the injustice, hoping for a better
The issues we placed before the court went to the heart of the
case: the effect of the hoax on the trial.
Mass. Rules of Civil Procedure, 60 (b) sets a time limit of one
year for bringing an action to overturn a judgment on the basis of
five causes, including a mistake, newly discovered evidence, fraud,
etc. We were well beyond the time limit for causes (1) through (5).
But at the end of the paragraph, there is 60(b)(6) which provides
relief “where there is something more,” some kind of “extraordinary
circumstances.” Fraud on the court, committed by an officer
of the court, rises to this “extraordinary” level
and has no statute of limitations.
A lawyer is an officer of the court. Misha was her own lawyer for
almost a year, signing under pains and penalties of perjury the required
pleadings. A pro se litigant is bound by the same
obligations and constraints under Mass. Rules of Civil Procedure
that apply to an attorney. Joe said the courts have overturned judgments
for conduct far less egregious than Misha’s brazen fraud. “If
this case doesn’t present an extraordinary circumstance, I
can’t imagine what would!” he said.
One of the cases we relied on involved a matter of legal fees. An
attorney representing himself in suing his client had, in a nutshell,
pulled a fast one on his client to collect his fees. The court, in
this case, found that the attorney’s conduct rose to the level
of “something extra” such that it warranted a reversal
of the judgment against the client.
Misha had stepped into the shoes of an attorney, we argued, thus
becoming an officer of the court. In this capacity she had committed
fraud on the court in holding herself out as a victim of the Holocaust,
one of the most horrendous events in human history. The sympathy
and credibility she gained from the judge and jury profoundly influenced
the outcome of the case.
We had been sued for failing to fulfill the terms of the contract.
However, we argued, the contract was void ab initio, invalid
from the outset, because both Misha and Vera had warranted in their
Publishing Agreements that “all statements of fact are true” and
the story is “authentic,” a warrantee that they both
violated. Had the court known at the time about the hoax, all of
the accusations against us would have been examined through a completely
different lens. In fact, without a contract, there never would have
been a trial. The case would have been thrown out on summary judgment.
Frisoli, on behalf of Vera, and Misha (again representing herself)
filed motions to dismiss my complaint. A hearing was scheduled for
August 28, 2008 in Middlesex Superior Court. I notified the media.
National Public Radio reported on the hearing; we listened to the
broadcast as we drove to the courthouse. The Associated Press sent
a reporter and a photographer. The Gloucester Times was
there. There were others I didn’t recognize. Many supporters
showed up including Sharon, Karen, Barbara and Ginny. Rosian and
Susie got to the courthouse but were directed to the wrong courtroom.
When we entered the courtroom there was a press camera tripod in
the corner and the benches were full. Ramona Hamblin was sitting
beside Misha and Maurice in the front row. She would not be representing
Misha, I knew, because the Board of Bar Overseers website listed
her as “administratively suspended.” Misha had gained
weight and Maurice sported a new mustache.
Judge Timothy Feeley took the bench. He had only received the papers
on this case that morning, he told the lawyers, apologetically.
Joe spoke first. He presented his arguments in a low-key and measured
tone. The case law supports our position, he said. Courts have overturned
verdicts for far less egregious conduct than what occurred in this
instance. Misha was an admitted liar. Her conduct in exploiting the
suffering of the victims of the Holocaust for her own financial gain
was a heinous act. The fraud permeated the trial. It was more than
fraud; it was fraud on the court. Rule 60(b)(6) was designed to catch
just such extraordinary miscarriages of justice as this.
Frisoli spoke next. He was wearing another of his matching outfits,
this time a baby blue seersucker suit with a blue shirt and tie.
In his usual hyper-excited manner, voice too loud, gesturing profusely,
he explained that Misha hadn’t admitted that she lied; her
story was simply historically inaccurate. Her “alleged” admission
was like the repressed memory of a sexually abused child. And, in
any case, the statute of limitations on fraud had long expired. He
went through the usual litany of character assassinations I’d
heard so many times before. I couldn’t bear to watch him; I
fiddled with my rings in my lap while he spoke, “Foreign rights
diverted …lies… money hidden from my client in an offshore
account… Framingham jail….” He went on and on.
Then Misha read from a prepared statement, citing statutes and case
law. Her statement appeared to have been written by a lawyer. In
her broken English, she explained that she didn’t intend to
defraud the court; she really believed her story.
The judge then asked several questions about whether the fact that
the book was not a true story had any bearing on its marketability.
Did it matter that the story wasn’t true? Frisoli said it didn’t.
Joe replied that Misha’s aura convinced the court that everything
she said was true.
Were there any expert witnesses? the judge wanted to know. Joe answered
that there was never an independent auditor. We would welcome the
opportunity to have an auditor examine the company’s finances
if the judgment were to be overturned, he said.
And then it was over.
Outside the courthouse I gave interviews to several reporters. A
TV crew from Providence shot footage that aired that night on New
England Cable News. From the corner of my eye I saw Frisoli emerge
through the glass doors of the courthouse and walk toward me as if
to catch my eye. I turned away and he proceeded toward the entrance
to the parking garage. When he had exited, I turned my head to be
sure he was gone and, just as I did, he popped back through the door.
Grinning a gloating smile, he raised one hand and wriggled his fingers
at me. “Bye-bye, Jane,” he said in a sing-song, taunting
Karen saw the gesture and moved to stand beside me. “He makes
me sick,” she hissed. Sharon said to me later. “I wonder
if the judge understands that the $33 million was the award based
on Misha’s estimate of what the book should have been worth,
plus punitive damages; it was not the book’s real earnings.”
The AP story went out on the wire and was picked up all over the
world. It was obvious from the headlines that the reporters didn’t
understand the money issue either. The gist of the story was the
same; the headlines differed.
Author of Faked Holocaust Book Fights Publisher for Millions
Memoir faker fights publisher
Author of book hoax fights for profits
Author of hoax memoir asks judge to toss lawsuit
Author of faked Holocaust book fights for her millions
Fake book author wants profits
Author of faked Holocaust book fights for millions
Despite lies, US author of faked Holocaust book fights to
keep $33 million
Author of faked Holocaust book fights for millions
The best headline came from the little Gloucester Daily Times:
Does the truth matter?
On October 9, 2008, Judge Timothy Feeley issued his ruling. Here
The court is not condoning or minimizing the fraud and misconduct
alleged in the case. If true, the allegations in the complaint
are, as claimed by the plaintiffs, deeply disturbing on a number
of levels. The Holocaust tragedy is a subject that deserves respect
from all, and no one should attempt to obtain personal gain from
the unconscionable slaughter of millions. People should not profit
from their own misconduct.
However, this is not an action against Defonseca for her misdeeds.
This is an action by plaintiffs seeking relief from judgments entered
by this court six years ago. The question is not whether relief
from judgment might have been appropriate at some time; the only
question is whether such relief is appropriate now.
I find nothing extraordinary about the allegations of fraud,
misrepresentations and misconduct in this case. This case lacks
the “something extra.” Plaintiffs argue that Defonseca’s
role as a pro se litigant invested her with some kind of special
obligation to the court and made her fraud, misrepresentations
and misconduct particularly egregious. The court disagrees. The
misconduct did not arise out of [her pro se] status, and the harm
to plaintiffs was not aggravated by that status.
The substance of the book may have given flavor to the trial,
but it was the conduct of the parties, and particularly the conduct
of Daniel, that was the subject of the trial and the basis for
the judgment in the case. Defonseca’s fraud, misrepresentations,
and misconduct did not go to the heart of the case. It did not
establish the basis for the jury’s and the court’s
verdicts against the plaintiffs. Accordingly, this court finds
nothing exceptional or extraordinary about the fraud, misrepresentations
and misconduct in this case to justify the use of Rule 60(b)(6).
A ‘fraud on the court’ occurs ‘where it can
be demonstrated, clearly and convincingly, that a party has sentiently
set in motion some unconscionable scheme calculated to interfere
with the judicial system’s ability impartially to adjudicate
a matter by improperly influencing the trier or unfairly hampering
the presentation of the opposing party’s claim or defense.
A party seeking to demonstrate fraud on the court must prove ‘the
most egregious conduct involving a corruption of the judicial process
Defonseca’s fraud does not rise to the level of “fraud
on the court.” Her misrepresentations and fraud did not prevent
the court from providing plaintiffs a fair and impartial trial.
The Supreme Court stated that independent actions under Rule
60 (b)(6) “should only be available to prevent a grave miscarriage
of justice.” Here the fraud is certainly of the sensational
variety, and not to be condoned, but refusing plaintiff’s
relief from a six-year judgment does not constitute a grave miscarriage
Whether Defonseca should profit from or be punished for her
bad conduct is not the question for this court. The only question
is whether Defonseca’s bad conduct should absolve plaintiffs
from their own bad conduct six years after entry of judgment. It
bears noting that it is not, as claimed by plaintiffs, Defonseca’s
conduct that caused harm to plaintiffs. It was their own bad conduct
that not only caused a jury to find against them across the board,
but caused a Superior Court judge to fine their conduct so egregious
that it warranted treble damages and attorney’s fees.
The motion to dismiss the claim was allowed.
“We’re filing an appeal,” Joe said.
To be continued ….