Thesp's attorney cites 'superficial' paper trail

In final closing arguments before jurors, attorneys presented two conflicting accounts of when “Desperate Housewives” creator Marc Cherry made the decision to kill off Nicollette Sheridan’s character of Edie Britt.

Sheridan, seeking almost $6 million in her wrongful termination suit, claims that Cherry dropped her from the show in retaliation for complaining about an incident in which he struck her during a script dispute. Her attorney, Mark Baute, told jurors that Cherry, other show producers and Touchstone and Disney executives orchestrated what amounted to a “cover-up” in order to protect a show that was returning $1 billion in revenue. He suggested that Cherry and others created a “superficial paper trail that suited their needs.”

But Adam Levin, attorney for Cherry and Touchstone Television, called Baute’s case “desperate” and, after making that obvious pun, said that for jurors to believe Sheridan’s case they would have to accept that “10 good citizens conspired to get their story straight and looked you in the eye and committed perjury.”

He pointed out that 10 people testified, including five who no longer have connections to the show, that the decision was made to kill off the character before the Sept. 24, 2008, incident. Cherry contends that he merely tapped Sheridan as part of direction for a scene.

The jury of nine women and three men watched with full attention as each attorney gave their arguments. Outside of audio-visual exhibits, the counsels were barred from pacing dramatically back and forth in front of the jury panel and instead made their remarks behind a podium. Sheridan frequently glanced at the jury, while Cherry largely stared straight ahead as each side delivered summations.

Baute focused a lot of his attention on the lack of emails and other documents confirming that plans were in the works in May 2008 to kill off Britt and noted that despite a writers retreat in Las Vegas that month, there was no record in writers assistants’ notes of an announcement to write Sheridan out. One writer who was at the retreat, Lori Baker, testified that she did not learn that Britt would be killed off until December 2008, when Cherry said that he “just got approval” from Steve McPherson, the head of ABC, for her demise.

Baute also accused Cherry and his production partner, Sabrina Wind, of lying in their testimony, noting the number of times that they did not recall details of many events even though their memory of May 2008 meetings was clear.

“May, May, May. That is their script,” Baute said several times, suggesting that they rehearsed their testimony.

He also focused on the response to the Sept. 24 incident and said that after Cherry struck Sheridan on the set, efforts were made to minimize what happened, and he accused Cherry of constructing a version of events along with his assistant, Jason Ganzel, that was presented to a studio human resources executive. Only when the story spilled onto the pages of the National Enquirer in October did Touchstone and Disney decide to conduct an investigation, one that Baute characterized as a “whitewash” because neither Cherry nor Sheridan was interviewed. After HR cleared Cherry of wrongdoing in December, Baute suggested, he got the greenlight to kill her off.

The studio’s “focus was not on protecting a woman who has been hit but on bad publicity and brushing it under the rug,” Baute told the jurors.

Levin focused his closing argument on the sheer number of witnesses who testified that the decision to kill off Britt was made before the incident. Included were McPherson and Pedowitz, then president of Touchstone. Both have since left the company and would have little motivation to commit perjury, Levin maintained.

He also challenged Baute’s argument that there was no paper trail of when the decision was made to kill Britt off. He showed excerpts of notes from meetings Cherry had with writer Bob Daily that May, before the Las Vegas retreat, as well as cards posted on a writers room bulletin board referring to the storyline.

And he also said that Baker “was simply not credible” as she was unhappy with the circumstances in which she left the show.

Another writer on the show called by Sheridan’s lawyers, Jeff Greenstein, ended up contradicting Baker’s testimony because he “reluctantly conceded a decision may have been made in May 2008″ to kill off the character, Levin said.

He said that Sheridan’s version of the Sept. 24 incident got “progressively more exaggerated” as time went on, from her accusation that Cherry “violently hit” her to “nice wallop” to “hard hit.” In a form she filed with the state, she said he “slapped her across the face” but later said it had been a mistake of her attorneys.

Cherry “always clearly testified it was a tap,” Levin said.

Levin did tell jurors that even if they disagree with the way that the investigation was handled by the show and Disney, “It doesn’t prove the one claim.”

Baute got the final word, and he denied that he was accusing executives like Pedowitz and McPherson of perjury, saying that “people have very selective recollections when it comes to former employers, especially when you have a severance package or consulting agreement.” He went on to note that McPherson had a faulty memory in his testimony and even reminded the jury that McPherson was chewing gum as he answered questions on the stand.

Killing of a major character like Sheridan’s, Baute said, “is not done because it is not a wise business practice to kill off a character you’ve invested gobs and gobs of money in.”

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