Makes his case

He claims Lifetime film is “80 percent false”

Convicted murderer’s attorney says movie about him “at least 80 percent false.”

An attorney for convicted Delmar ax murderer Christopher Porco told appellate justices Wednesday the Lifetime network’s 2013 made-for-television movie about his client’s case was

“at least 80 percent false” and claimed the film portrayed Porco’s mother as a liar.

Porco’s lawyer, Alan J. Pierce, said it was “despicable” and “horrible” for the 2013 film “Romeo Killer: The Chris Porco Story” to show his client’s mother, Joan, having flashbacks to the notorious crime. She testified at trial she had no memory of it.

“She can’t have a memory,” Pierce said during the virtual appearance before the Appellate Division of state Supreme Court’s Third Department in Albany. “They’re calling her a liar and a perjurer in this movie.”

In August 2006, a jury in Orange County, where the trial was moved, convicted Porco of the Nov. 15, 2004, murder of his father, Peter, and attempted murder of his mother. Prosecutors said Porco used an ax to attack both his parents as they slept in their home on Brockley Drive. A judge sentenced Porco to 46 years to life in prison. Porco, now 37, is serving his time in Clinton Correctional Facility.

Pierce told Justices Stanley Pritzker, Christine Clark, Michael Lynch, John Egan and Molly Reynolds Fitzgerald that he could prove Lifetime put forth materially false information.

“Frankly, in this case we know this movie is at least 80 percent false,” Pierce said.

Egan asked Pierce how he arrived at that figure. Pierce said he went through every scene in the movie in which Joan Porco appeared. He claimed 11 of 12 scenes are false. And he claimed that 24 of 32 physical depictions of her son were false.

Porco and his mother, Joan, sued Lifetime under Section 51 of

the state’s Civil Rights Law, which bars the use of a nonconsensual living person’s name, portrait or photo for purposes of advertising or trade.

Lifetime Entertainment Services attorney David A. Schulz told the justices that Section 51 does not apply to expressive works such as newspapers, magazines, television shows and movies. An exception, he said, would be if something was presented as truth but was a materially false attempt to profit off of a person’s name rather than tell their story.

But Schulz said “Romeo Killer” was intended to portray the case in a dramatic way and never as truth. The basic facts of the case were true, he said.

“The fact is, it was presented as a piece of entertainment,” Schulz said. “The very first thing you see, if you watch the film, is a slide that says ‘this is based on a true story.’ It is not a documentary. It’s not a news account. It’s a fictionalized piece of entertainment.”

Schulz said courts have recognized that viewers see such works as fictionalized forms of entertainment. If successful, Schulz argued, Porco’s lawsuit would have a chilling effect on speech in New York.

“It would threaten to substantially restrict the protected speech of entire genres of film and books and undermine the entertainment and publishing industries that are so important to New York’s economy,” he told the court.

At one point, Fitzgerald asked Porco’s attorney about the impact on docudramas, should the court rule in Porco’s favor. “I think we can take judicial notice of the fact that there’s thousands of them,” the judge said. “So does everybody in every docudrama have a chance for a jury trial? I think that’s a legitimate question.”

“It’s possible they do, your honor,” Pierce replied. He said there were not many Section 51 cases such as Porco’s lawsuit out there.

“But there will be, if we do this, right?” Fitzgerald cut in.’

“We’re not asking for any change in the law,” Pierce responded.

In 2013, before “Romeo Killer” aired, Porco convinced state Supreme Court Justice Robert J.

Muller to grant an an injunction to stop the “substantially fictionalized” movie from airing. Now-presiding Justice Elizabeth Garry allowed the movie. She sent the case back to Muller, who dismissed it.

The Third Department overturned that ruling, determining issues to address remained. A second complaint was filed and the defendant’s mother was added to the suit. State Supreme Court Justice Mark Powers most recently rejected Lifetime’s motion to dismiss the case and Porco’s motion to rule in his favor in a search for more evidence known as discovery. Pierce wanted to depose eight witnesses, including five non-employees of Lifetime, among them the writer of the script and two members of the media, including a Times Union reporter who covered the trial.

“Isn’t there a ‘freedom of the press’ basic argument here, that this is going to chill a reporter’s ability to talk to sources and write an article without fear of being deposed in court?” Egan asked Pierce.

The court is expected to rule in the next two months.