Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own. View more opinion on CNN.
There is a story, perhaps apocryphal, that Johnny Depp’s daughter, Lily-Rose, when asked what her father did for a living replied, “My daddy’s a pirate.” If Depp gets a big damage award in his case now on trial in Fairfax, Virginia, his pirate legend may grow. Of course, jurors could instead choose to award an enormous sum of money to Depp’s ex-wife, Amber Heard, should they accept her tearful descriptions of violence and abuse allegedly inflicted on her by Depp. Another real possibility is that both movie star litigants could be tossed from court empty-handed.
The trial of Depp’s defamation case against Heard entered its 15th day on Thursday. Depp claims that Heard falsely and maliciously accused him of domestic abuse, damaging his career and reputation in the amount of $50 million. Heard has countersued to the tune of $100 million for nuisance.
Both Heard and Depp have denied each other’s allegations of abuse.
The first 15 days of this trial have often looked more like a reality television show than a Virginia lawsuit. Depp is attired in true movie star tradition in flashy clothing combinations while wearing multiple rings, a ponytail, sunglasses, an ascot, earrings and a number of visible tattoos worthy of his famous performance as Captain Jack Sparrow in “Pirates of the Caribbean.”
The courtroom audience has been a full house with lines of spectators waiting for a glimpse of Depp and Heard. Depp, though, is clearly the draw with the crowd. This is understandable given the 58-year-old actor’s role as a leading man in 40 films with an aggregate box-office gross of more than $8 billion ranking him No. 3 in worldwide aggregate box-office gross. In comparison, the 36-year-old Heard is ranked 2,086 in her role as a supporting actor in 11 films grossing less than $1.2 billion. (Of course, Depp’s career has also been longer than Heard’s.)
In the lead-up to the trial, many lawyers I talked to who were following the case felt that Depp didn’t have a chance of winning. Defamation cases brought by a public figure such as Depp are harder to prove because the plaintiff must prove not only that an offensive statement about him was false but also that it was made with “malice.”
Depp had also lost a libel case against a British tabloid in 2020 that described him as a “wife beater.”
During the first 13 days of the trial, Depp’s attorneys systematically attempted to shatter Heard’s reputation by calling numerous witnesses who testified that things they’d seen and heard suggested that she had been abusive toward Depp. Depp testified in an odd, mumbling fashion, rarely making eye contact with anyone in the courtroom, but the story he told seemed compelling to many, particularly his fans.
Backed up by live testimony and deposition video from his bodyguard, Malcolm Connolly, and others, Depp’s lawyers claimed that Heard’s abuse of Depp began on their honeymoon trip on the Orient Express. Connolly testified that he observed scratches on Depp’s neck along with bruising on his eye socket and nose as well as a fat lip after an alleged particularly violent attack by Heard during the trip. The bodyguard said it looked like “he walked into a door, or a door walked into him.”
Depp’s direct testimony painted the marriage as a chamber of horrors. He recalled hiding in a bathroom for protection once after being hit in the skull by Heard, who admits on audiotape she cannot deny this because she was “under the influence of Ambien” at the time.
In yet another incident, Depp alleged Heard threw a vodka bottle at him, which almost severed his finger, leaving “the bone sticking out.” Bodyguard Travis McGivern added to the litany of violent act allegations, recounting that he saw Heard throw a can of Red Bull at the actor’s back and spit on him as well.
These are only a partial list of violent attacks graphically described during three days of testimony presented by Depp’s lawyers, with Depp indicating that he sometimes had to defend himself from Heard.
This testimony was further buttressed by a psychologist, Shannon Curry, retained by Depp’s lawyers, who examined Heard for 12 hours. She concluded that Heard suffers from a borderline personality disorder and a histrionic personality disorder.
A borderline personality disorder, Curry said, “seems to be a predictive factor for women who implement violence against their partner.” As for histrionic personality disorder, the symptoms display “drama and shallowness,” she said.
Heard’s legal team would later respond to Curry’s claims with testimony from its retained expert, a forensic psychologist, Dawn Hughes, who had previously said the actress had been subjected to sexual violence by Depp and believed Heard has post-traumatic stress disorder as a result of the alleged abuse.
When Heard took the witness stand after Depp’s lawyers had rested their case, her demeanor markedly contrasted with that of Depp’s. She made eye contact with the jurors and her questioners, shedding tears and sometimes smiles at regular intervals, openly displaying a range of emotions.
Depp, on the other hand, seemed to make most of his eye contact with a monitor attached to the witness box, often mumbling and rarely changing his tone of voice or displaying emotion of any kind. Depp almost appeared to be playing one of his odd movie characters rather than himself.
Heard recounted a particularly harrowing story of Depp ripping her clothes and subjecting her to a “cavity search” for drugs while on a vacation with friends in 2013.
According to her testimony, the group of friends had been using mushrooms – “laughy drugs,” as Heard called them, and she had ingested one mushroom cap – before this event occurred. She said she made no attempt to leave when Depp finished this particularly vile act or when he smashed the inside of the trailer where they were staying in a frightening rage, though she did describe her emotional distress. They then continued the vacation at the trailer park with friends.
Heard fluctuated between testifying to stories of Depp abusing her with descriptions of how much she loved him. Experts in domestic abuse cases often testify that this is not abnormal behavior for an abuse victim. Ultimately the jury has to evaluate the relevance of the behavior in each individual case.
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Evaluating witness tears can be particularly difficult for jurors in any case. Heard shed quite a few in her testimony when she narrated her claims of Depp’s alleged sexual, physical and emotional abuse against her. The question jurors will face is whether the tears and the emotional displays were an authentic, understandable response to real inflicted trauma and abuse or “the performance of a lifetime,” as alleged by Depp’s lawyers.
When the case resumes on May 16, it is likely to last for at least another two weeks as both Depp and Heard seek to corroborate their claims with credible witnesses and other evidence. More testimony and headlines can be expected, causing substantial and permanent damage to the reputation and careers of both these famous actors. Unlike their successful movies, the trial of a defamation case rarely has a happy ending.