Editor's Note: The author of the following piece works for one of NYC's top five ranked law firms and has asked to remain anonymous. I guess he/she isn't supposed to be goofing off and writing for us during work hours.
The “Tiger Woods defense” is really an argument that the law of blackmail isn’t being applied in the same way to Letterman extortionist Halderman as it is (or, more accurately, isn’t) to Rachel Uchitel. There is no “defense.”
Let’s say you someday find out that a celebrity is having an affair (shocking!). Perhaps you learn this intimately while interning at The Late Show in New York, partying at a Las Vegas nightclub or even visiting certain Orlando area parking lots (if you believe some reports); or maybe you moonlight as some sort of paparazzo-slash-Sherlock Holmesian detective. You then plan to threaten this celebrity with publicizing the affair if he or she doesn’t pay you millions of dollars. Blackmail? What if you instead shrewdly “negotiate” with the celebrity (for millions) to keep quiet. Why, hello, Gloria Allred, I didn’t know you were a reader.
Either way, don’t plan to rely on the “Tiger Woods defense.”
A (very) brief peek at the law. Blackmail is described as the “crime of threatening to reveal substantially true
information about a person to the public . . . unless a demand made upon the victim is met.”* It’s a crime – go to jail, pay money, maybe both – for aspiring screenwriter and/or jilted former boyfriend and/or apparent lowlife Robert “Joe” Halderman to “threaten” to reveal David Letterman’s affairs with former intern Stephanie Birkitt and others if Letterman doesn’t meet his “demand” (of paying him $2 million).
Now, what if I rewrote the last sentence like this: It’s a crime (same) for sometimes club promoter and/or noted New York socialite and/or famed homewrecker Rachel Uchitel to “threaten” to reveal her affair with Tiger Woods if Woods doesn’t meet her “demand” (of paying her $5 million). What’s the difference? There probably isn’t one, which is why I wouldn’t imagine any legal “defense” here.
Uchitel “negotiated” with Tiger because he wanted to keep it secret and was willing to pay, while Halderman was sleezy and threatened Dave. The Woods-to-Uchitel pay off was consensual (funny legal pun!). But, how Matlock, is that any different than our definition of blackmail? Does hiring a sophisticated Hollywood entertainment lawyer and agreeing with the “victim” on the price tag make it any less of a “threat”? Better yet, wasn’t Halderman just “negotiating” when he slipped Letterman’s driver a screenplay treatment that unsubtly hinted at his extramarital dalliances; not exactly cloak-and-dagger-type stuff, but again what’s the difference?
No one seems to be arguing that if Uchitel/Allred and Woods/his fancy lawyer couldn’t agree on a number or if things had gotten super heated at the negotiating table (imagine that), then Uchitel would be guilty of blackmail. Similarly, no one seems to suggest that if Letterman had responded to the tacky screenplay handoff by paying the money or offering a lesser amount, then Halderman would be a free man.
Where does the “defense” come in?
Uchitel was (cough) intimately involved with the “information,” while Halderman was just someone who knew (and screenwrote) about it. This idea could give the non-celebrity adulterer a nice little payday – not to mention some lovin' with a celebrity – you probably don’t need law school to see it wouldn’t make a bit of sense, and trust me there are no classes on good stuff like this (I’ve looked).
Halderman is male, Uchitel female? No (and a little sexist).
Halderman was playing smarmy spy games and writing a movie with the information, while Uchitel called and then canceled a formal press conference about it? That’s close to saying that, if Halderman had worn a tuxedo to the drop-off or if Uchitel had planned to go to TMZ instead, it would have worked out differently, as dumb as it sounds.
Uchitel had a better lawyer, Gloria Allred, who wisely used the “Tiger Woods defense” (giving it the clever name!) to get $5 million, while Halderman’s lawyer, Gerald Shargel, foolishly waited to use the defense in nerdy legal filings after his client was charged with the crime? With respect to both, no, which makes my point.
Uchitel has not been charged with blackmail, and never will be. Shargel’s attempt to use her as an example to defend Halderman is really just whining to the court that his client was charged even though Allred’s wasn’t. Boo hoo, but does he have a point? Probably. Both Uchitel and Halderman appear to have threatened/negotiated with embarrassing information about an affair to get money. The wildcard is that, while we know Halderman “threatened” Letterman with his screenplay, Woods may have approached Uchitel before she herself “threatened” to go public. Even so, if she responded that of course she wouldn’t talk, just as long as Woods agreed to pay her a certain amount of money (say, $5 million), is that any different?
It is just the common sense argument that Halderman shouldn’t have been charged because Uchitel wasn’t. An actual court case makes the point that the “law” of blackmail is being applied unfairly between these two, and that neither Halderman nor Uchitel has done anything wrong. Will the court draw a line between Halderman and Uchitel? It may, it may not.
My advice? Forget the “Tiger Woods defense,” and make your threats look more like negotiations the next time you’ve got some good dirt on a celebrity.
[Photos via VF, CBS].
*Wikipedia...it's just so accessible!