Killer Campaign

When the Benetton clothing company dared to humanize death-row inmates in a $20 million ad campaign, Attorney General Jay Nixon threw a fit. Then he played right into their hands and sued them.

Missouri claims that it has incurred increased costs in housing the inmates as a result of the fame they gained. The lawsuit lists phone and fax charges as an example of the added expense. "The actual damages in relation to the cost of running the state are not significant," acknowledges Nixon. "It's a relatively small amount of money." So, the state is seeking an unspecified amount for punitive damages. "I think a jury here has the opportunity to determine whether or not Benetton should be adequately punished for lying to get pictures to use in a $20 million ad campaign," Nixon says.

The attorney general's office has achieved initial success by blocking an attempt by the defense to move the trial to federal court on constitutional grounds. In June, U.S. District Court Judge Rodney W. Sippel turned down the motion. The suit has now been remanded back to state court and has been moved on a change of venue from Washington County to St. Louis County, where Judge Melvin Wiesman will preside. No trial date has been set, and Benetton has not yet filed a response.

The state's case rests on documents that allegedly show purposeful misrepresentation. Evidence includes forms signed by two of the defendants when they visited Potosi Correctional Center last year and two earlier letters sent by Rice, which appear to contain nothing deceptive.

Defense attorney Burton Shostak: "I suppose that if you're the attorney general seeking higher office, the case is not frivolous."
Defense attorney Burton Shostak: "I suppose that if you're the attorney general seeking higher office, the case is not frivolous."
Attorney General Jay Nixon
Attorney General Jay Nixon

In a letter dated Sept. 2, 1999, for instance, Rice outlined the project to Dora Schriro, the director of the DOC. The missive bears the letterhead of the NACDL and identifies Rice as leader of that organization's anti-death-penalty committee. Rice notes that Toscani, a "highly regarded" international photojournalist, will be taking the pictures. "He will be accompanied by Ken Shulman, freelance journalist with Newsweek, the project producer and interpreter," writes Rice. He then makes clear Benetton's role: "Naturally, a project this size has private funding and in this case the Benetton Company of Italy is the sponsor," he writes. Rice says upfront that 6 million copies of the photo essay will be printed in 13 languages. The letter assures Schriro that the interviews will not delve into the inmates' crimes, their cases or their living conditions in prison. Rice also states: "No profits will be generated from the publication of this photo-essay.... Benetton's only condition is that the inmates be photographed in their normal prison clothes and not clothing which would promote another company, such as a GAP shirt."

Rice's pitch is clear: Benetton is paying for the production and distribution of the photo essay, and the company does not want a competitor's products featured in the photographs.

Nevertheless, Hatfield says, the defendants failed to spell out their intentions fully enough. "The director of the Department of Corrections was very upset that anyone would misrepresent themselves in order to gain access into a correctional facility and would then use the information they gained for commercial purpose in clear violation of the correctional policy. She asked us to file a lawsuit on her behalf," Hatfield says. Neither the DOC nor the attorney general's office, however, could provide documentation as to whether Schriro requested the lawsuit be filed or whether Nixon convinced her to go along with it. A spokesman for the DOC declined to comment, noting the case is under litigation. During the final negotiations to gain access, at least, Schriro was very cooperative, says Rice. She is even credited for her assistance in the acknowledgments of the Benetton catalog.

Arguably, the most questionable statement in Rice's letter is that the photo essay would receive limited distribution in the United States. But in relative terms that statement is accurate, too. Talk magazine has a circulation of 600,000, which represents only a tenth of the total copies that Benetton intended to print worldwide. The decision to expand the campaign with additional magazine ads and billboard displays was made after the completion of the photo shoot, according to both Rice and Major, Benetton's spokes-man.

Aside from Rice's letter, the state's evidence consists of standardized forms that both writer Shulman and project coordinator Wasson signed when they entered the Potosi Correctional Center on Oct. 13, 1999. The forms are not entry passes per se but, rather, serve as releases or verifications that inmates have granted permission to be interviewed and photographed. The forms are usually filled out by a prison staff member and then signed by the inmate, according to a DOC spokesman. The forms also contain designated spaces for listing the visitor's organizational affiliation. Both Wasson's and Shulman's forms list Newsweek magazine in those spaces. But it's difficult, if not impossible, from the available copies, to discern whether it's their handwriting or the guard's or the inmate's. Shulman admits he signed the form but has publicly stated that the Newsweek reference is not in his handwriting. One of the forms shows that it was filled out in advance of Shulman's visit and signed by the inmate and prison employee on Oct. 12, the day before the writer's visit.

In Rice's opinion, it is the Missouri attorney general's office that is guilty of misrepresentation." What they're saying is just not truthful," Rice says. "This is a political lawsuit. Nixon wanted to do something to show that he supported people who want executions." According to Rice, everything he did was aboveboard. He sent examples of Benetton's other corporate-communications campaigns to Schriro, the director of the Missouri Department of Corrections. He also provided press credentials to indicate the professional status of Toscani and Shulman, neither of whom is directly employed by Benetton. A DOC official refused his request to allow the Benetton crew into the prison twice, he says. After being rebuffed the second time, Rice spoke to a Missouri defense attorney who contacted a local person involved in prison ministry. It was the religious advocate who finally convinced Schriro to permit Benetton access, Rice says.

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