A critical analysis of the Johnny Depp libel trial

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County court advocate Benjamin Ramsey considers what’s next for the Hollywood megastar after the High Court dismissed his claim on Monday

On 2 November 2020, Hollywood megastar Johnny Depp’s libel claim against The Sun newspaper was dismissed by the High Court. While Mr Justice Nicol found that Depp had proved the necessary elements for an action in libel, The Sun had also proved that what they had published was “substantially true”.

An exploration of the relevant law surrounding this case is provided here, along with a comparison to American defamation laws. I will also consider the fairness of the article published and its relevance to the decision. Finally, I will look at what is next, if indeed anything, for the former Pirates of the Caribbean star.

The law

The legal issues within the case are straightforward.

Depp brought the libel action under Section 1(1) of the Defamation Act 2013. This claim followed the publication of an article on 27 April 2018 on The Sun newspapers’ website with the headline, ‘GONE POTTY How can JK Rowling be ‘genuinely happy casting wife beater Johnny Depp in the new Fantastic Beasts film?’. The author of the article was also a party to proceedings as the second defendant.

Depp’s legal team, headed by Eleanor Laws QC of QEB Hollis Whiteman, claimed that the term ‘wife beater’ was untrue and would cause the actor’s personal and professional reputation ‘serious harm’. The Sun meanwhile, whose legal team was headed by Sasha Wass QC of 6KBW, utilised the ‘truth defence’ as defined in Section 2 of the 2013 Act.

Section 2(1) of the 2013 Act states the following: “It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.”

What is important to take from the above is that it was for the defendant, namely The Sun, to prove that the statement made in the article was “substantially true”. Under English law, therefore, there is a presumption that the statement made is false. So, while the burden of proof rested on Depp to prove his reputation had suffered serious harm, that burden was reversed to show that the statement made was true. Both parties had to prove the elements to the civil standard, that being on the balance of probabilities i.e. in the case of The Sun, it is more probable than not that Depp did what is alleged in the article.

Some would argue, that placing the burden on the defendant to prove the statement hinders Article 10 of the European Convention on Human Rights, which guarantees the right to expression. I do not intend to delve into that here but it does raise the question whether the current defamation legislation strikes the right balance between the rights of newspapers to have sufficient freedom to engage in journalistic practices and the right of private citizens not to suffer unwarranted interference (Article 8: Right to privacy and family life).

The UK’s so-called pro-claimant approach is in direct contrast with American defamation law, which is largely pro-defendant. In America, they believe the right to free expression, which is entrenched in the First Amendment of the American Constitution, is more important than compensating claimants for harm caused by defamatory statements. As such, in the US, there is no presumption that the statement made is false. Rather, it is for the claimant to prove that the statement is false. Therefore, had this case been brought in America, it would have been for Depp to prove that The Sun had been negligent as to the falsity of the defamatory statement. Whether that would have meant a different outcome for Depp is a different matter entirely.

The decision

Ultimately, ruling in Depp II v News Group Newspaper Ltd [2020] EWHC 2911 (QB), Mr Justice Nicol found that while the statement of ‘wife beater’ would cause serious harm to Depp’s reputation, a fact accepted by The Sun‘s legal team in closing submissions, it was also found on the balance of probabilities that such a statement was true. Of the 14 incidents of physical violence alleged against then-wife Amber Heard, 12 of them had been proved to the civil standard. For the two incidents which could not be proven, the judge noted this was due to certain facts not being put to Depp during cross-examination. Further, the judge rejected Depp’s case that this was all hoax concocted by Heard finding that she had not been physically violent towards Depp.

Is the article as a whole a fair reflection of the situation?

Whether the statement, or indeed the article as a whole, is a fair reflection of events is immaterial to the truth defence. All Mr Justice Nicol was concerned about was whether the term ‘wife beater’ was substantially true or not. It was accepted by both parties that such a term meant the following:

i) The claimant had committed physical violence against Heard;
ii) This had caused her to suffer significant injury; and
iii) On occasion it caused Heard to fear for her life.

Therefore, provided The Sun could prove to the civil standard that Depp had been physically violent toward Heard on at least one of the 14 occasions regardless of the context of the violence or whether she had been violent also, the statement would still be “substantially true”.

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Many news outlets depicted this case as Johnny Depp v Amber Heard; however, Heard was only ever a witness for The Sun. She was there solely to prove that the statement was true. While Depp had gone all in to prove his innocence in what could be one of the biggest missteps of his already patchy career.

To conclude, neither Depp nor Heard has come out of this highly publicised trial in good shape, even if no finding of physical violence were made against Heard.

Arguably, Depp’s pursuit of this case was ill-advised. The case placed the depths of a personal life, fraught with excessive alcohol and drug abuse, in full view of the public over three long weeks. The alternative was to simply dismiss the article as tabloid rubbish. Instead, Depp has been legally termed a ‘wife beater’ albeit to the civil standard. This result will serve as a stark reminder to those who believe that they have a cause of action but actually bringing the claim may cause more harm than good.

Next steps

It will be interesting to see where this case progresses. Depp’s legal team have called the judgment “perverse and bewildering” and indicated that he will be seeking permission to appeal.

The relevant test is outlined in Part 52.6 of the Civil Procedure Rules (CPR). It states the following:

(1) Except where rule 52.7 applies, permission to appeal may be given only where–
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard.

While at first glance the test appears wide, it is difficult to see how Depp would be successful and what an appeal would achieve. Mr Justice Nicol’s judgment is extensive and involves various findings of fact against Depp across those 14 incidents. The judge made those findings having had the advantage of numerous witnesses giving live evidence. Any appeal hearing, should permission even be granted, would not be a rehearing of the case and would most likely be submission-based only.

This case revolved around the issue of fact, with the judge having to decide which versions of events were more credible. The judge sided with Heard. Any appeal court would place significant weight on the judge’s discretion in the case, with him being more familiar with the evidence than any appeal court would be.

Dragging this case out would only seek to further damage Depp’s reputation with little positives to achieve. He would have to show that the 12 findings of fact that he was physically violent towards Heard were incorrect for his claim to be successful on appeal.

Despite this, the war between Depp and Heard wages on in the US with Depp bringing a further defamation claim against Heard directly for $50 million. It will be interesting to see if the different approach in the US, which poses different questions to that of the 2013 Act, will throw up a different outcome. Further to that, following the imposition of the SPEECH Act 2010, American courts no longer recognise, nor enforce, foreign judgments for libel obtained under laws which do not afford as much protection for freedom of speech as that of the First Amendment. It appears then, that while this judgment may be persuasive to the American courts, Depp and Heard appear destined to do this all over again and I for one will be watching.

Benjamin Ramsey is a first class law graduate from Northumbria University. He completed the BPTC as part of his degree and was called to the bar in 2018. He currently works as a county court advocate for LPC Law, and is actively seeking pupillage.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.



Great piece, very informative! I’ll definitely be keeping an eye on how this case progresses in American courts!


Cap’n Jaques

What do you say to three Shillings, and we forget the libel?



What facts ?. The judge clearly cherry picked ‘stories’ he chose to use to make his verdict. He ‘chose’ to disregard every piece of Johnny’s evidence and then had the gall to inject his own ‘feelings’ as though those were evidentiary as well. There’s no way Johnny cut his own finger off. It cut through the phalange of his finger. That will not happen from bashing a phone against the wall even if Dwayne Johnson’s had his hand over Johnny’s forcing it, lol. To say this incompetent Judge’s verdict should imply anything more than favouritism towards Amber, is a fallacy being perpetuated by you.


Rasmus Kruse

Hey so I‘m new to this field (just came here to fact check something about the defamation case on Reddit) and wondered if you could possibly show me an article or articles concerning the alleged incompetence of the judge you‘re talking about. It would be a great help, thank you in advance.



Look on YouTube watch the videos, the audio tapes and come to your own judgement. I have and I can’t believe the judge made the right call here, terrible decision.



A high court judge in the UK is highly unlikely to be incompetent, although occasionally they get an inadvisable bee in their bonnet (there was that one that had some serious beef against British Airways…)

The judge sat through all the sworn witness testimony and came to a conclusion on the balance of probabilities. Worth bearing in mind others in this comment section have not had the same benefit.


Greta Gerard

By ‘handpicked’ do you mean chose only to give merit to that which was credible? When the claimant and his witnesses’ testimony are both in direct contradiction with the direct evidence (namely their own time-stamped text and email communications), how can you in any good conscience accuse him of cherry-picking ‘stories’?

As for the finger incident, if Amber were able to hurl a bottle at the speed required to sever a finger in precisely such a way, she really should be pitching for the Yankees. If I had to fathom a guess as to how it really happened, I would expect it might have involved a paint can, some random tools that should perhaps not be used to remove a lid from a paint can and a whole lot of self-medicating with alcohol and ecstasy to dull the pain. But I’m no expert, just an artist.



Great article, Benjamin. The most measured and informative report I’ve seen on this unhappy case.


Scep Tick

” it is for the claimant to prove that the statement is false. Therefore, had this case been brought in America, it would have been for Depp to prove that The Sun had been negligent as to the falsity of the defamatory statement. ”

How do you prove you are not a wifebeater? All you can prove is that you’ve never been found guilty.

It’s not unreasonable to expect a defendant to back up what they say. After all, they should not be saying it without evidence.



Good comment!

That is why American defamation law is criticised because it is inherently difficult for a claim to be successful.

Ultimately, Any claimant would have to prove negligence. So, at the time of the publication, what information did the defendant have in order to accurately make that statement? If they had none or indeed those facts don’t tally up with the statement I.e. the statement is untrue, then a claim can be successful.


Keith L

Thanks for the piece, very well written indeed.

A couple of questions about the weight of evidence.

Judge Nicol says that Amber Heard’s testimony carries the most weight because they are made under oath. This surely can’t be presumed true?

If that’s the case then why bother with any other forms of evidence?

What surprised me is the language used in the judgement – Judge Nicol could have said “this could have happened on balance of probability” rather than things like “They must have been terrifying for her”. It just seemed he was siding with her and forgetting this is about JD v NGN. Did you find it strange or am I just reading too much into it?

Thanks again for all your work on this.



If you don’t sue for libel, then, you do not have to prove you are not a wifebeater to the civil standard.



Is it common for both sides to instruct criminal silks in defamation cases?
I appreciate this came down to a dispute of fact, but I would have thought specialist silks would have been a more natural choice?


Crim bazza

They instructed criminal silks for witness handling only, because civil barristers can’t cross examine for toffee.



I’d like to see how you’d handle the rough and tumble of a small claims credit hire trial in Crewe


Alan Robertshaw

The intricasies of defamation law can play a big part in preliminary hearings. That’s especially the case now. The general presumption against juries means judges can deal with matters like ‘meaning’ as a preliminary issue. Similarly with legal concepts like privilege, serious harm, the various statutory defences etc.

It’s very common for cases to be struck out, or at least savagely pruned, at an early stage. A case called Jameel very much set the tone for robust case management.

But if a case gets to trial then matters may well turn mainly on facts and thus witness credibility; so cross examination skills become more relevant than technical knowledge.



I’ve been struggling to get my head around how the standard of proof specifically functions in cases of criminal allegations. I can’t find any clear info.

The only conclusion I can come to is that the judge answered the wrong question. The civil standard was applied to the wrong thing. The question he answered was:

“Is it more likely than not that Depp committed the offences?”

While I don’t even accept that was true, the question that SHOULD have been answered was:

“Is it more likely than not that it is beyond reasonable doubt that Depp committed the offences?”

In other words, the judge should have made a balance-of-probabilities judgement on the likely outcome of a criminal trial in respect of these allegations.

How else could you meaningfully incorporate the presumption of innocence into the civil standard of proof when the Claimant’s narrative (an elaborate hoax to simulate domestic abuse) is such an inherently improbable occurrence against the relatively probable occurrence of a drug addict beating his partner when “out of it”?


Alan Robertshaw

@ Agnes

It’s very common to hear the refrain in civil courts “There is only one standard of proof in civil cases; the balance of probabilities”.

So even though it’s an allegation of criminal conduct; for civil purposes it’s only necessary to pass the ‘more likely than not’ test.

That’s generally the same in all civil proceedings; so defamation obviously, but also things like civil claims for fraud or assault. No-one’s liberty is at stake so the threshold can be lower.

Note by contrast how contempt proceedings are dealt with. Although they are civil in nature (imprisonment for contempt is not a conviction and you don’t get a criminal record) they still apply the “so that you are sure” standard as in criminal cases because you might end up in gaol.

(The SRA and BSB also apply the criminal standard in appropriate cases).

But even though the test is the same, the evidence needed to clear the test is usually set at a higher level of cogency. “Extraordinary claims require extraordinary evidence” and all that.

So whilst it’s still only necessary to prove something is more likely than not; rather than practically certain, you might need to provide a lot more evidence in regards to an allegation of a criminal offence than, say, whether a contractual term was agreed.



Thanks Alan. It seems like a bit of an artificial distinction, this ‘standard of proof’ vs ‘standard of evidence’.

But I’m more troubled by the presumption of innocence issue. Reading the skeleton argument for Depp, they quoted case law to show that this should be the starting point. It’s difficult to see how it could have been in practice. So I think the only solution would be to nest the criminal standard into the civil standard. So that the judge is indirectly made to consider the strength of the evidence against the enhanced standard of evidence and the presumption of innocence although it would still technically be the civil standard.

But what I really don’t get is what would have happened if the matter had gone through criminal court before the defamation claim and he’d been found not guilty? It seems like technically someone could be simultaneously not guilty beyond reasonable doubt and guilty on the balance of probabilities.

So could the truth defence theoretically succeed in the presence of a not-guilty verdict? And what value does that not-guilty verdict have if journalists are still at liberty to state the very opposite as established fact?



Agnes, it is possible for someone to be found not guilty in a criminal court but lose a civil case based on the same facts – there have been several rape cases where the defendant was found not guilty by the jury (where the criminal standard of proof applied and of course who knows how they came to their conclusions in the jury room) but was successfully sued in the civil courts by the victim.


Contra Pro

The difference here is that there is no criminal case to consider, so Depp is presumed innocent. And even if any criminal action was brought against Depp, it would be after the civil decision. If the civil decision drew any conclusions based on the potential outcome of a criminal case (requiring a much higher burden of proof, as Agnes mentioned) then this would create a logical fallacy as the truth has since been established by the criminal trial or the presumption of innocence without it.

F Lee Bailey

OJ Simpson was successfully sued for wrongful death after his acquittal in the criminal courts

Jim Costello

Very thorough analysis presented in layman’s terms.

Would you give a breakdown of Meghan Markle’s case against the Mail?




@ agnes

You’re certainly not the first person to bring up the ‘distinction without a difference’ point. Indeed, that’s why there are quite a few cases on this. But in practice its something that’s pretty well understood. I know that if a simple contract or negligence case might just require my client to give evidence. If I wanted to make an allegation of fraud (and there are professional rules about that too) then I may need a bit more evidence. Even though ultimately I only need to establish to the “51%” standard.

As for presumption of innocence. That still applies in civil proceedings. So it’s the same starting point in both civil and criminal. It’s a different end point though. So I might not be able to persuade a judge to the criminal standard. But I don’t have to.

And it is far from uncommon for criminal and civil proceedings arising out of the same facts to have different results in the criminal and civil courts. The O J Simpson case is a well know US example; but it happens here a lot too. One sort of related example is that in harassment act proceedings in the criminal courts, a judge can acquit because they’re not satisfied to the criminal standard, but still impose an injunction because they are satisfied to the civil standard.

So a mere acquittal doesn’t stop someone saying the offence was made out, so long as they can establish that to the civil standard.

It’s worth remembering the law is ‘binary’. Whether that’s in relation to criminal or civil proceedings. As far as the law is concerned, once an allegation is proven, then that fact is deemed to be the true, even if the judge wasn’t actually sure of that in terms of standard of proof.



Thanks A

I was vaguely aware that cases have been found true in civil court subsequent to a not guilty verdict, I just got the impression the situation was different here. Because of the manner in which these facts were presented and the context of the allegations. Depp’s side spoke of how Depp was put in the same category as Weinstein, how quasi-legal language was used such as “overwhelming evidence” and how the Sun acted as judge and jury. Perhaps I’m going too far down the rabbit hole, but my understanding was that this libel action was based not only on the claim that he was a wife-beater, but a wife-beater by the criminal standard. I guess as you say the law is binary; the court would say “true is true” and there aren’t too separate kinds of true. But I do feel that to suggest there is overwhelming evidence when there isn’t, and the matter in fact falls to a standard of proof recognised as unsuitable for establishing the truth of the crime in law, is being defamatory in some sense.


Alan Robertshaw

There was a preliminary hearing on meaning. In the end with parties agreed the pleaded defamatory statement was this.

“The Claimant beat his wife, Amber Heard.”

So all the Sun had to prove was that Depp beat his Amber Heard; beat having the everyday meaning of hitting or otherwise assaulting.

So although there were 14 alleged incidents; the Sun technically only had to prove one instance of beating (S.2(1) of the Act as set out by Ben).

In the end the judge found 12 of the 14 allegations proved to the requisite standard; and thus S.2 was satisfied as a statutory defence.


Nicholas O'Brien

Meghan Markle should learn from the Depp case. Although hers is a privacy action, not a libel action, she must be prepared to undergo cross-examination about any self-publicity during the whole of her career
She may regret suing.



Before being married into the royal family, MM was an actress and therefore self-publicity was part of her job, you can do this while still maintaining and having a right to private life.

As private citizens, we also self-publicised whether this be on social media, recruitment website or on forums, yet still maintain certain privacy and that should be no different for anyone in the public eye.



Although obviously those weren’t libel cases…



I feel very sorry for Mr Depp in just about every aspect of this. He seems to be played by almost everyone who he interacts with.



Hi Jonny!


Chancery Barrister

Good article. Someone give the lad pupillage


Ruby red

Hi Benjamin!



OJ Simpson is perhaps one of the most famous examples of this. Not guilty in his criminal trial, but made to pay out millions in subsequent civil claims.



Nicols did make some interesting leaps in his judgement though, my favourite being that one instance of violence had not been proven however because the others were he accepted it happened.


Contra Pro

The narrative created by many mainstream media has portrayed Depp as a criminal guilty of domestic abuse following this verdict. Obviously this is not legally accurate as Depp has never been charged with the crime of domestic abuse but unfortunately, this fact no longer carries much weight in the court of public opinion.

This outcome will have no doubt been predicted by Depp’s legal team, and it can be argued that this is only one lost battle in a war that is being fought on many fronts. I can see a scenario where this decision will become irrelevant if future lawsuits conclude in Depp’s favour. There is plenty of evidence to support Depp’s claim that he was, in fact, the victim (by the civil standard, of course). Which begs the question, would this verdict be the same if the roles were reversed? Does Depp now have grounds to publically claim that Heard is a ‘husband beater’?



Re your comment on logical fallacy…not sure I understand that correctly. Surely it’s no more of a fallacy than someone guilty on the balance of probabilities enjoying the benefit of the presumption of innocence in a subsequent criminal trial in respect of the same allegations. The probability isn’t carried over from the civil trial is it? Perhaps you’re suggesting there’s no meaningful difference between criminally guilty and criminally guilty on the balance of probabilities. But I think the law could sustain it as a legal fiction at least by presuming a difference in the conditions or whatever. Sorry if I’ve totally misinterpreted your point this isn’t an area I know much about.

Whatever the case reading that judgement I was struck by the lack of any clear framework to ensure that a particularly high standard of evidence and the presumption of innocence were actually in operation. We just had to take the judge’s word for it even when the opposite appeared to be the case. And with such a high volume of incidents found to be true it seems to me like the only chance of success at appeal would be to argue that there was something wrong with the reasoning process.


Alan Robertshaw

Re: Findings in one set of proceedings being used in other proceedings.

This is quite an interesting topic. Crops up a fair bit when you have multiple cases running with different but inter-related parties.

The general rule is the one established in Hollington v F. Hewthorn & Co [1943] KB 587.

That sets out that findings in one set of proceedings cannot be used in subsequent proceedings.

That’s generally in relation to civil proceedings, but would also apply in a subsequent criminal trial. So theoretically you couldn’t use a judgment in a civil case as evidence in a criminal case.

However that all gets a bit more complicated now that we have ‘bad character applications’; and to comment on the possible implications of that would require an essay length response. But maybe have a read of S.99 Criminal Justice Act 2003 and subsequent cases.

The flip-side to that is that a conviction in a criminal trial is admissible in civil proceedings as evidence that the person carried out the act, but that is rebuttable.


Alan Robertshaw

“the only chance of success at appeal would be to argue that there was something wrong with the reasoning process.”

Appellate courts hardly ever interfere with findings of fact. That’s even moreso when the main evidence comes from witness testimony.

In a case where there was undisputed documentary evidence, you might have a punt at persuading an appeal court that they could interpose their own factual interpretation. But only if the trial judge’s analysis was so flawed no reasonable judge could have come to the same conclusion. Absent that perversity (in the legal sense) the mere fact the appellate court might have come to a different conclusion is not a basis for allowing an appeal.

But with live witness evidence, where a judge has indicated they prefer one person’s evidence over another then, in the absence of any persuasive evidence that supports/undermines that finding, appellate courts almost never challenge that. The trial judge saw the witnesses, the appellate judges did not.



Thanks Alan, this has been fascinating. I’m starting to wonder if the best thing for Depp to restore his reputation is to go all in and demand to be put on trial for it in a criminal court, hopefully at least he’d get a letter from the prosecution service saying there’s insufficient evidence, which would be evidence against the Sun’s claim of “overwhelming evidence”!

But of course that wasn’t how the judge chose to define the sting of the libel, which is the only way I could see that you could successfully challenge this, given the number of claims found true. I’m only a law graduate but looking into it I am just blown away that the media in this country has free reign to call someone a wife-beater or worse, because they are 1 per cent more sure that it’s true than that it isn’t. I guess the question for me would be what the right-thinking person would reasonably infer from claims like “overwhelming evidence” with respect to a criminal offence. The fact that the Chase levels exist would suggest that the law acknowledges on principle that the strength of the allegation in relation to the criminal standard is a material part of the libel sting.

But yeah. Can’t imagine you’d have much luck trying to convince the courts that the judge’s brain is broken.

Mind you, there are parts of that judgement where you seriously wonder. Particularly his response to Heard’s audio admissions of deliberate domestic violence against Depp in which she tells him she can’t promise she won’t do it again. Insofar as the judge is in the role of an ordinary right-thinking juror, this is mind-boggling to me. If you have a high-profile anti-domestic abuse activist, and subsequently audio is released of them admitting to being a perpetrator, I doubt very much the public response would be “meh, no great weight to be attached to that! It wasn’t said in court after all. I’m sure she’s still perfectly trustworthy.”

But I think my favourite part of the judgement is when he quotes an exchange between Depp and his ex-wife, in which they call someone (presumably Amber) all sorts of crude names, and Depp says something about “smacking” a “b****”:

“Mr Depp said that this was a jokey exchange, although he struggled to explain the nature of the joke or why it was funny. Elsewhere in his evidence he described his sense of humour as “niche”. Mr Depp did agree that the views he was expressing in this exchange were not those of the southern gentleman he aspired to be.”

“Why is was funny”. That kills me. The poor man was literally expected to EXPLAIN his sense of humour.

Or else the judge would reasonably draw the conclusion that he was sincerely expressing a intention to abuse his wife. Because naturally who would be a more sympathetic ear to the sadistic plots of a wife-beater than his 14 year-long suffering ex-wife.

Everyone ought to read this judgement if only to marvel at what this judge thought made sense.



And this is why revolutions and assassinations will happen again. Usually, the law decides based on heresay. What a filthy system.


Mauricio Fleury

It is strange for me as a lawyer and despite the differences between Legal systems to realize that the “onus probandi” falls on another person than the one who make the allegations.



My only issue with the ruling is how the judge went to leaps and bounds to paint Heard an angel which is as irrelevant to the case as her actually being abusive and that he put more weight on Heard’s testimonies which she actually changed throughout the proceeding because she was under oath than multiple witnesses corroborating each other’s testimonies who were also under oath. Which is why I found the ruling appalling.



What I find difficult about this case is that no other women appear to have accused Depp of assault. He is not a serial woman beater. Vanessa Paradis was supportive of him. His mistake was leaving Vanessa. Amber Heard was only after progressing her career.



For those interested in defamation cases an Interesting read is a book titled QBV11 by Leon Uris. It is based on an actual case. From memory I think that it is based on a claim of defamation of a doctor mentioned in Exodus by Leon Uris.


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