Judge, reporter engage in bitter libel suit battle
Toolbox
By MARK JURKOWITZ The Boston Globe - Published: January 9, 2005
In July 2002, Boston Herald reporter David Wedge, a key defendant in Superior Court Judge Ernest B. Murphy's libel suit against that paper, gave a deposition in the case. In one notable exchange, Murphy's lawyer, Howard Cooper, asked Wedge whether he had thought about the repercussions of his work.
"Mr. Wedge, did you consider the impact that your stories on Judge Murphy would have on him before you published them?" Cooper asked.
"No," Wedge responded.
"Did you consider the impact that your stories would have on his family, his wife, and five children before you published them?"
"No."
"Have you ever considered either of those things?"
"No."
"Do you know what impact your stories have had on Judge Murphy and his five children?"
"No."
"Do you care?"
"No."
It was nearly three years ago that the Herald began a series of critical stories about Murphy with a Page 1 piece portraying him as a ''wrist-slapping" judge, who supposedly said of a 14-year-old rape victim, ''Tell her to get over it."
On Jan. 19, the high-stakes libel case between the jurist and the tabloid will begin in Suffolk Superior Court. And jurors will probably hear about Wedge's deposition as part of the plaintiff's effort to portray him not only as a sloppy journalist, but as one who deliberately used false material while callously ignoring the consequences for Murphy.
His court filings describe Murphy as the victim of a "malicious and relentless campaign of libel unprecedented in the history of this Commonwealth" who had his reputation destroyed, his life threatened, and his family traumatized by Herald coverage and the national publicity that ensued.
Herald lawyer Robert Dushman said Wedge worked hard to check the accuracy of his information, and Herald editorial director Ken Chandler said the paper firmly backs the work it published. "We stand behind Dave Wedge, and we stand behind his reporting," Chandler said.
In a trial expected to take several weeks, jurors will hear arguments about disputed quotations, confidential sources, and reporting techniques. Yet Murphy's case could also hinge on something more basic: how ordinary citizens on the jury feel about the motives and methods of journalists in an era of widespread public skepticism about the news media.
"When you bring a journalist in front of a jury, the jury carries with it some perceptions about journalism that you have to debunk," said Henry Hoberman, senior vice president for litigation for ABC Inc., which has been involved in several major cases.
Stephen Cullen, the lawyer for a plaintiff who won a $950,000 libel verdict against The Boston Phoenix on Dec. 17, said distrust of the media can be an element in the courtroom. "There's a tension in these cases, and the tension is crystallized in the skepticism many people have about the media," he said. "There's an undercurrent of suspicion."
The Media Law Resource Center keeps statistics about libel and privacy verdicts, and the news is mixed. News organizations lose jury trials more often than they win, although the percentage of media outlets that prevailed in jury trials increased from 28 percent during the 1980s to 33 percent in the 1990s and has risen further so far in this decade. The center's executive director, Sandra Baron, said plaintiffs' lawyers try to exploit antimedia animus. "Trial lawyers tell juries to send them a message, teach them a lesson," she said.
The Feb. 13, 2002, story that triggered Murphy's suit dominated the Herald's front page, featured a large photo of the judge, and was headlined ''Murphy's Law." It described his sentencing practices as too lenient, reported that he "has heartlessly demeaned victims," and contained two explosive quotations attributed to the judge by unnamed sources. The one in reference to the teenager who had been raped was: "She can't go through life as a victim. She's 14. She got raped. Tell her to get over it." The other, which was described in the context of belittling a 79-year-old robbery victim, was: "I don't care if she's 109."
That article led to a number of Herald follow-ups, featuring the ''get over it" remark, and the story rippled througout the local and national media and was picked up by WEEI-AM (850) morning host Gerry Callahan, Fox News Channel's Bill O'Reilly, and others.
Murphy's suit challenges statements Wedge made during a March 2002 appearance on "The O'Reilly Factor" and contends that the Herald's ''false stories created a regional, national, and international firestorm of anger directed at Judge Murphy and his family." The suit states that Murphy received death threats and that someone suggested during a Herald-sponsored Internet forum that his daughters should be raped.
In his suit, Murphy denies making "the published remarks" about the young rape victim and says the quote about the elderly victim was ''reported wildly and irresponsibly out of context."
Court records and deposition transcripts point to a number of other areas of contention between the two parties, including the time frame in which Wedge talked to his unnamed sources, as well as their reliability.
One key point might be exactly what the judge may have said about the teenager. In his deposition, Wedge acknowledges he is not sure whether he was told by one source that Murphy said, "Tell her to get over it," or ''She's got to get over it."
Even if there are issues of accuracy however, Murphy, because he is a public figure, will have to prove that the Herald published material with a reckless disregard for its truth or falsity.
Cooper, who was reluctant to discuss anything about the case that was not public record, told the Globe that "the jury … is going to be able to see that a reporter acted with knowing and reckless disregard for the truth."
"This is a reporter who crossed a line for the sake of tabloid journalism and went too far," Cooper said.
The plaintiff's strategy may include challenging not only Wedge's integrity, but also scrutinizing the Herald's standards as well. In one court filing, the plaintiff contends that the "Herald has provided him 1/8Wedge3/8 with no training in journalistic ethics, the proper use of hearsay, or the proper use of confidential sources."
The Herald case would appear to involve the defense that Wedge dutifully checked his information with responsible sources and believed he was reporting the Murphy story accurately.
"David Wedge in this case did what any other reporter would do and probably even went further in verifying the accuracy of the information he got," Dushman, the Herald attorney, told the Globe. While declining to comment further, Dushman also said that "Murphy never complained about this until months afterward," in the form of a May 10 letter written by Cooper.
In one of its court documents, the defense states that even if Murphy ''could prove that he never made the comments 1/8about the rape victim3/8, his claims must still be dismissed because he cannot show with 'convincing clarity' that David Wedge subjectively entertained serious doubts about the truth of the information that Justice Murphy had made the comments."
Even with the daunting standard of actual malice that Murphy must surmount to win his suit, some analysts say that news media defendants face their own disadvantage, the public's jaundiced view of the news industry.
Lawyer Tim Barber, who represented the Food Lion supermarket company in its suit against ABC, said, "I do think there's an inherent bias right now against journalists when they come on as witnesses."
The Media Law Research Center's Baron said juries are "often very thoughtful," but may be influenced by "all the publicity about the press and perhaps negative feelings about the press."
A major study released in March 2004 by the Project for Excellence in Journalism examined growing public sentiment that "journalists are sloppier, less professional, less moral, less caring, more biased, less honest about their mistakes, and generally more harmful to democracy," and attributed it to "a disconnection between the public and the news media over motive."
The study said: "The public believes that news organizations are operating largely to make money and that the journalists who work for these organizations are primarily motivated by professional ambition and self-interest."
One case that seemed to epitomize that phenomenon — and which sent shudders through the media world — was the 1997 jury award of $5.5 million to Food Lion after it sued ABC for alleged fraud for a hidden camera ''PrimeTime Live" investigation of food-handling practices. While ABC argued that it had performed an important public service, Food Lion's legal team hammered away at qualms about the motives behind ratings-driven television journalism. After the jurors ordered ABC to pay about $5 million, a three-judge panel eventually reduced the award to a mere $2.
Recalling the case, Barber said that a number of the network's tactics — including putting one of its top stars, Diane Sawyer, on the witness stand — backfired with the jury. "There was a real journalistic arrogance displayed by all the ABC witnesses," he said.
Even though ABC's Hoberman said that underlying public atttitudes about journalism "can make our job harder and make a favorable verdict harder to achieve," he added that jurors do "tend to look at the facts, even in the face of perceptions they bring into the courtroom. … I don't think jury trials involving media companies are unwinnable these days," he said.
NYT-01-08-05 2000EST
22