Billy Mitchell’s Donkey Kong high-score case will move forward to trial


Enlarge / Billy Mitchell competes at a (presumably authentic) Donkey Kong cabinet.

A Los Angeles County judge has ruled that Billy Mitchell has met the “minimal merit” standard necessary to move forward to trial in his defamation case against the high-score adjudicators at the Twin Galaxies organization. But the ruling doesn’t specifically weigh in on the conflicting evidence presented so far, and it suggests that both sides have some chance of prevailing at trial.
The defamation case, which Ars was the first to publicly report on in May, centers on Twin Galaxies’ 2018 decision to invalidate all of Mitchell’s high scores. That decision came after Twin Galaxies reviewed video evidence that suggests at least two of Mitchell’s submitted Donkey Kong scores were not performed on an original arcade PCB, as required by the organization’s rules.

Mitchell says in court documents that Twin Galaxies’ statement on the matter falsely and libelously implied that he was a cheater and that the organization’s investigation ignored testimony from numerous eyewitnesses to his performance. Mitchell argues that Twin Galaxies’ case “essentially rests on a conspiracy nearly as broad (and untenable) as the Kennedy assassination: Scores of people around the country with seemingly no connection to each other have agreed to lie and fabricate evidence that Mitchell achieved his records on arcade software.”

What about the witnesses?

In his ruling on Twin Galaxies’ anti-SLAPP motion, Judge Gregory Alarcon ruled that Mitchell is a public figure in the gaming community and that Twin Galaxies was discussing a controversy of public interest to that community. That means Mitchell will have to prove at trial both the falsity of Twin Galaxies’ claims and that the organization acted with “actual malice” in making them.

While the ruling is careful not to “weigh evidence or resolve conflicting factual claims” on that score until the full trial, Judge Alarcon does tip his hand a little as to what evidence he finds potentially compelling. In particular, the judge seems interested in why Twin Galaxies refused to interview a number of witnesses Mitchell put forward to testify to the authenticity of his score performances.

Mitchell (left) and Twin Galaxies founder Walter Day (right) pose with a fan.
Enlarge / Mitchell (left) and Twin Galaxies founder Walter Day (right) pose with a fan.

Alarcon notes specifically that an interview of the referee involved in authenticating a score that Mitchell says he achieved at a Florida Mortgage Brokers’ Association convention in 2007 would be seemingly “relevant to the integrity of the machines that the referee watches.” But that referee, Todd Rogers, has also been banned from the Twin Galaxies community for claiming a score on Atari’s Dragster that has been deemed physically impossible.

In any case, Twin Galaxies has maintained that such testimony was not necessary in its judgement because the dispute was focused solely on video evidence that it believes could not have been generated from an authentic arcade PCB.

Still, Judge Alarcon notes in his ruling that “the status of the PCB hardware as original and/or unmodified appears to be at least supportable by Nintendo’s Senior Engineer by verification; and [Twin Galaxies] has not provided a reason for failure to investigate this information after [Mitchell] requested. The failure sounds rather in avoidance of information, rather than a failure to investigate…”

What about the video evidence?

Even as Mitchell has met his burden of “minimal merit” in the anti-SLAPP motion, Judge Alarcon also writes that Twin Galaxies has “satisfied the low burden to show a reasonable possibility of prevailing in this action” in a separate motion.

The scoreboard has presented evidence to “[support] that its statement does not show actual malice,” the judge writes, and which “supports that Twin Galaxies did not harbor doubt as to the truth of its statement, as its statement was made after Twin Galaxies’ lengthy investigation on the dispute. The testimony of [Twin Galaxies owner and CEO Jace] Hall’s belief that eyewitness evidence was unnecessary may reasonably go in [Twin Galaxies’] favor on this point, undermining [Mitchell]’s claim that [Twin Galaxies] acted with reckless disregard of the truth.”

Carlos Pineiro addresses his analysis of the video evidence at issue in the Twin Galaxies case.

Alarcon also cites technical assessments from Carlos Pineiro and David Race, both of which point to the impossibility of the videos in question coming from an unmodified arcade PCB. Those assessments “[go] towards [Twin Galaxies’] affirmative defense of the truth of the statement, which forms a complete defense to defamation, and provides support of a reasonable possibility of prevailing on this affirmative defense.”

Since Mitchell is not a California resident, the judge ordered him to pay an $81,225 bond to cover Twin Galaxies’ anticipated legal costs in the event it wins the case.

And away we go

In a statement posted on Twitter, Mitchell is quick to trumpet the ruling as a massive legal victory. “I officially defeated Twin Galaxies in court in its misguided attempt to prevent me from having my day in court on my defamation claims,” Mitchell writes. “To defeat the anti-SLAPP motion, I needed to prove that I have a ‘probability’ of winning my lawsuit and hence that it should be heard in court by a jury. I did exactly that.”

But speaking to Ars Technica, Twin Galaxies lawyer David Tashroudian says that Mitchell is “making this seem like some great win on his part and that he will prevail at trial. That is not the case.”

Mitchell was helped in the anti-SLAPP motion, Tashroudian says, by the fact that “at this early stage the court is bound to accept whatever Mitchell puts forward as true.” That includes a lot of what Tashroudian calls hearsay evidence involving phone calls where Hall allegedly told Mitchell and Twin Galaxies founder Walter Day that he “didn’t care about certain evidence.”

“The court is not allowed to determine the credibility of these statements [at this point] and must accept them as true,” Tashroudian tells Ars. “[At trial] we’ll be able to show that Mitchell is not credible because we have numerous situations of documented falsehoods in his papers. I’m confident that… after all of the evidence has been adduced, and when Billy is deposed and not allowed to hide behind declarations, the truth will come out.”

The case now moves to a planned management conference on December 4, where the schedule for a trial and a fuller examination of the evidence will be set will be set.





Source link