The judge hearing the case of a Gloucester publisher seeking dismissal of a $32.4 million judgment from a writer's lawsuit questioned yesterday whether the truth of an allegedly falsified Holocaust memoir may even be a factor in the civil case now before Middlesex Superior Court.

Gloucester attorney Joseph Orlando, representing Jane Daniel of the Mount Ivy Press, filed a motion to vacate a seven-year-old judgment stemming from Daniel's 1997 publishing of "Misha: A Memoire of the Holocaust Years" — a story told by Misha Defonseca with the help of ghost writer Vera Lee.

Last February, Defonseca reportedly admitted that she never lived with wolves as she escaped the Holocaust, nor did she ever wander through Europe as a seven-year-old girl, as the story depicts.

Judge Timothy Feeley said he viewed yesterday's hearing as "somewhat preliminary." He told the parties he planned to ask many questions to help him determine the legal issues. Feeley said he had no prior knowledge of the case until he saw the files yesterday morning.

There was substantial discussion regarding the statute of limitations, which may vary depending on which section of law may be deemed to apply. But then Feeley raised what many view as a fundamental issue.

"Is it important that it was a work of fiction or a memoir?" Feeley asked at one point during the hearing. "I have trouble seeing how this new information changes the extent of the wrong found to be inflicted," said Feeley.

The judge said he would take the case under advisement and he would notify all parties should further information be sought from them.

The Belgian-born Defonseca — who served as her own attorney — and Lee's lawyer both argued that the truth of the tale didn't even matter. They said the verdict and appeal rendered that Daniel mishandled royalties and the U.S. marketing of the book, which had been a best-seller in Europe and was made into a French film,

"The alleged admission by Defonseca wasn't made until recently, so failure to promote the work is actually the same," said Frank Frisoli of Cambridge, who represents Lee.

Frisoli also questioned the use of the word "lies" when describing the memoir and raised issued with whether Defonseca actually made any admission that the book was not true. He said it may not be "historically true," though he did not agree it was a fraud.

"There was a press release abroad and she agreed it was based on certain facts now discovered that are not historically true. She didn't say it was a lie," said Frisoli. He emphasized that Daniel tried to cheat Lee and Defonseca of royalties.

He said Daniel's appeal is baseless — and suggested the Gloucester woman has latched onto the "truth" issue merely as a means to overturn a just verdict.

"She appealed this to death and lost and doesn't want to let go because I'm about to sell her house," said Frisoli. Frisoli said he has gained control of Daniel's residence — Gloucester's Hovey House, which is also a bed and breakfast — through legal proceedings tied to the earlier verdict. Frisoli told the court he negotiated a settlement agreement, but there has been no sale to date because Daniel hasn't cooperated.

"This action she wants to vacate is already settled," he said.

The truth issue surfaced in yesterday's hearing through a signature card, which noted that Defonseca's date of birth was in 1937; That meant she could not have been seven years old at the time of the alleged journey described in her book. But the court did not pose the question of the book's veracity to Defonseca yesterday.

Orlando, meanwhile, asserted that the veracity of the work is a key point because the judge in the 2001 trial believed it was a memoir, as did the jury.

"We need to recognized that a fraud was perpetrated," said Orlando.

During the roughly 1 1/2 hour hearing, there was some discussion about whether Defonseca and Lee were seen in the same light, and to what extent Lee's involvement was pertinent in the case. Lee was not in court yesterday.

Orlando referred to a specific statue — 60B — created by the Massachusetts legislature for the purpose of catching examples of fraud on the court and when justice has been denied.

"It is to deal with extraordinary circumstances as we allege in this case," said Orlando.

He and the judge discussed the six subsections of that statute; Orlando also noted a section that grants broader time sequences, giving "reasonable time of the discovery of fraud" that came to light in February.

Orlando, who was hired in March by Daniel, said the veracity of the memoir is important because the book was in evidence before the court and jury. In his memo, he noted that Defonseca shouldn't be allowed to walk away from her responsibility and ethical conduct in court.

Orlando talked about the contracts signed by Defonseca and Lee in which they guaranteed the story was true.

"If the jury had known the memoir wasn't true, it would have affected the market value of the memoir," he said.

He noted that no expert witness on market value had been called during that trial and he did not understand how the value was arrived at during the court case and argued that Defonseca and Lee were enriched by fraud perpetrated on the court at that trial.

"If Mount Ivy Press failed to properly market the book, the bottom line is it had no market value as a fraud," said Orlando. "We contend it would not have survived summary judgment, and damage, if any, would have been minuscule. The judge made a decision based on the illusion that the memoir was accurate."

After the hearing, Defonseca was asked several times by a reporter whether her story was true.

"I don't have an answer now," she said, "but I may soon."

Gail McCarthy can be reached at gmccarthy@gloucestertimes.com

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