Parsing the Murphy letters

It’s hard to know what to make of handwritten letters purportedly sent last winter by Superior Court Judge Ernest Murphy to Boston Herald publisher Pat Purcell after the paper lost a libel case to Murphy.

Herald lawyer Bruce Sanford calls the letters “a stark and sad attempt to bully the Herald” into abandoning its appeal of the $2.1 million judgment. Murphy’s lawyer, Howard Cooper, tells the Boston Globe that the letters were merely part of an ongoing attempt by Murphy to reach a settlement with Purcell.

This much is certain: If Murphy’s letters are typical of what takes place between parties in a lawsuit, then the legal sausage-making process is a lot uglier than many of us realize.

I’ve been sympathetic to Murphy, although I never thought the Herald libeled him. By conducting a campaign of vilification against Murphy in 2002, portraying him as a “heartless” and “wrist-slapping” judge who “demeaned” victims of crime, the Herald irresponsibly harmed Murphy. Among other things, the judge’s family was subjected to threats of violence.

But Murphy is a public official. And under the U.S. Supreme Court’s Times v. Sullivan standard, a public official must prove that a news organization acted with “actual malice” in order to win a libel case — that is, that the news organization published information it knew was false, or that it acted with “reckless disregard” as to whether it was true or false. There is no evidence of that.

The Murphy trial turned largely on the question of whether Murphy had said of a teenage rape victim, “Tell her to get over it.” Herald reporter Dave Wedge’s only eyewitness source, former prosecutor David Crowley, testified that Wedge didn’t get the quote quite right — his recollection was that Murphy had said, “She’s got to get over it” — but that Wedge had captured the “gist” of it. And Bristol County District Attorney Paul Walsh testified that Crowley considered Murphy’s remarks to be insensitive.

Even though there were several inaccuracies in Wedge’s reporting, it’s hard to see how, given those circumstances, that Wedge could be credibly accused of acting with reckless disregard for the truth, which, legally, requires him and/or his editors to have harbored serious doubts about what they were reporting. In fact, Wedge clearly believes to this day that his reporting was substantially true, Murphy’s denials notwithstanding. And it’s possible that Wedge is right.

But enough of the back story. The Herald today publishes the text of Murphy’s letters and graphic images of them. Assuming they are real — Purcell and his lawyers obviously believe they are genuine, but there’s no indication of what steps they took to verify them — they portray a very different Murphy from the devastated man who sued to get his good name back last winter. Here’s a fascinatingly repellent excerpt about a meeting Murphy wanted to have with Purcell. The letter is dated Feb. 20 — two days after the verdict:

Here’s what will be the price of that meeting. You will have one person with you at the meeting. I suggest, but do not insist, that such a person be a highly honorable and sophisticated lawyer from your insurer.

Under NO circumstances should you involve Brown, Rudnick in this meeting. Or notify that firm that such a meeting is to take place. [Brown, Rudnick represented the Herald at trial.]

I will have my attorney (either Owen Todd or Howard Cooper) at the meeting. The meeting will be AB-SO-LUTE-LY confidential and “off the record” between four honorable men.

You will bring to that meeting a cashier’s check, payable to me, in the sum of $3,260,000. No check, no meeting.

You will give me that check and I shall put it in my pocket.

Wow.

Now, granted, the release of these letters raises more questions than answers. Here are just a few:

1. What steps, if any, did Purcell take to authenticate the letters? In today’s Globe story, Howard Cooper seems to accept their authenticity, and on the surface there’s no reason to doubt them. But all of us in journalism have become more sensitive to possible problems with documents during the past year. Remember, Scott McClellan didn’t doubt the authenticity of the National Guard letters, either.

2. If Murphy’s letters are the blockbusters that Purcell wants us to believe they are, why did he not release them until yesterday as part of an effort to have the verdict against the Herald thrown out? The verdict, after all, has been hanging over the Herald since last spring. At the very least, it creates the impression that Purcell didn’t think the letters were particularly out of line at the time.

3. Why did Murphy, in his letter, demand $3.26 million? According to this Feb. 19 story in the Globe, the full cost of paying off the verdict was estimated to be in the neighborhood of $2.7 million, which would be the $2.1 million verdict plus interest. How could the cost rise by another $500,000 almost overnight?

Last night, at Boston Mayor Tom Menino’s annual Christmas party, word rippled through the Parkman House about the Murphy letters, which were unveiled at a news conference that evening. Since none of us were actually at the news conference, we traded rumors about what they might contain. Now we know.

I’m not going to speculate on their significance. But I remain troubled by this case. At root, the Herald’s reporting on Murphy — as irresponsible and over the top as it was — amounted to criticism of a public official for the manner in which he performed his government duties. Such speech demands the highest possible level of First Amendment protection.

Unlike an ordinary citizen, Murphy had numerous avenues by which he could fight back, as he showed by giving a no-holds-barred interview to the Globe in response to the Herald’s incessant attacks. Just as Wedge appeared on “The O’Reilly Factor,” so, too, could Murphy have invited himself on. This is Oliver Wendell Holmes Jr.’s “marketplace of ideas,” which is vital to public discourse in a democratic society. (Well, O.K., not “The Factor” per se.)

Instead Murphy, a judge, went to court in an attempt to silence his tormenters. And now he’s even trying to freeze the financially ailing Herald’s assets in order to preserve the judgment he won.

I don’t believe Judge Murphy “heartlessly demeaned” victims of crime. I’m appalled that he would come under such heavy attack for believing that, in some cases, justice should be tempered with mercy. But though I don’t think he should have been accused of conduct unbecoming a judge in 2002, I certainly think the label fits today.

More: NECN has an in-depth report that includes a good chunk from last night’s news conference and a long interview with Howard Cooper. Click here and choose “‘Herald’ levies serious charges against judge.”

14 thoughts on “Parsing the Murphy letters

  1. Ken D.

    Someone needs to consult a legal ethics expert on this whole episode. When a lawyer knows that the opposing party has a lawyer, then all communications must go through the lawyers. [That is the rule in my state, anyway, and it is basic enough that I assume Massachusetts is the same.] Direct contact between laywer and opposing party, cutting out the opposition attorney, is prohibited. The judge himself was the party here, and not anybody’s lawyer, so he himself was not bound by that rule. Also, the lawyers on both sides apparently knew of and had at least acquisesced in direct contact between the judge and the publisher. However, had the judge succeeded in involving his own lawyers in the proposed meeting, while keeping the newspaper’s lawyers in the dark, the judge’s lawyers would be engaging in clearly prohibited conduct. And, obscure as this may seem to a non-lawyer, the judge had to know that. His lawyers presumably are big boys and girls who would have declined to break the rules, but this still relevant to evaluating the judge’s conduct.

  2. chilledbongo

    the judge hasn’t denied that he wrote the letters, which he would immediately do if fake. so, that settles that question.his unguarded tone makes it all too clear now that he was, indeed, capable of demeaning a rape victim off the cuff, as the herald originally reported.his money demands sound almost like extortion, not an attempt to settle a lawsuit. and who knows where the inflated figures come from.methinks the judge has shot himself in the foot with his greed and desire for vengeance aganst the herald.

  3. Anonymous

    The judge’s letters now will be part of the appeal. So for him to win, an appellate court will have to write an opinion explaining how (1) the judge is entitled to a multi-million verdict because the Herald basically knew it was false to accuse him of being a bullying, insensitive judge; (2) the fact that he wrote bullying, insensitive letters on court stationery to the paper shouldn’t keep him from becoming rich for being falsely accused of being bullying and insensitive. Had he not tried to put a lien on the paper’s assets even though he knew there was plenty of insurance to pay him, these letters never would have come out and his appeal would be in much better shape.

  4. Anonymous

    My understanding is that the “threats” referred to at trial were figurative and rhetorical in nature, in a blog, of all things.The Herald didn’t disclose the letters previously because they were probably giving him enough rope to hang himself. (Turnabout from what Murphy did to the Herald with their spotty sourcing.) If this is judicial discretion then I’m Louis Brandeis. Can you imagine the stuff we DON’T get to see?

  5. Anonymous

    I’m disappointed Murphy didn’t get to sit on the Demoulas trial. Can you imagine the permutations on that one? The NECN interview with Howard Cooper was priceless, (e.g. his transmogrifying another $500k onto the verdict, as DK astutely noted). Sounds like “North Dallas Forty”, “Are you going to believe me or those lyin’ eyes of yours?”

  6. Amusedbutinformedobserver

    The judges letters will not “be part of the appeal;” nothing that is not in the record for trial is considered in the appeal. And note that the parties had agreed in the past that Purcell and the judge would talk directly about settlement, something the Herald, in its typical advance-its-own-agenda style, barely notes in its Wednesday story, saying only that the judge and the publisher had met twice. (Imagine the breast-thumping had the Globe put that kind of a spin on a story involving itself!!) The judge will get whacked over using official stationary, no doubt about that. But there’s nothing wrong in asking for a freeze on assets or making strong statements to the opposing side in a legal case, including making exhorbitant demands for settlement, even post verdict. If the Herald proves that its insurance would pay the verdict, then Murphy’s request for a freeze will be denied. Given the fact that the Herald’s financial problems are public knowledge, he has a right to security in the award he won at trial. The Herald is on the hook for interest at the statutory rate since it lost at trial. And settlement discussions flat-out are not admissible, even if between the parties directly if it has been agreed that they can be involved in direct contact, which is apparently the case here. So it looks like the Doomed Daily is spinning like mad to avoid paying the consequences for its biased and journalistically bankrupt behavior. Judges DO sometimes keep an eye on public opinion, which is probably all that will save the Herald’s attorneys from a sanction for filing a motion that one could argue is legally frivolous.

  7. Anonymous

    Sorry amusedbutinformedobserver — the letters WILL be part of the appeal because the Herald will appeal from the denial of the motion they filed yesterday and both appeals will be heard at the same time. And settlement discussions are OFTEN admissible; the only exception is when they are offered to prove that the fact of entering settlement talks means a person believed they were liable. Those letters are comin’ in.

  8. Anonymous

    I don’t find Murphy’s letters troubling. Seriously. And why did you cut out the line that followed “You will give me that check and I shall put it in my pocket”?Here is the next line from that letter: ” I will say to you, if, at the end of this meeting, you can stand before the God of your understanding, and as a man of honor, ask for the return of that check, I’ll flip it back to you.”I don’t think the letters are bullying. I think they are decisive, angry letters from someone who has won a court case and wants to resolve it quickly without more wiggling and squirming from those who lost.

  9. Anonymous

    But what about the very next line after that: “And then, I shall explain to you why it is in your distinct business interest to rise from the table, shake my hand, and let me walk away with that check.” A check for $500,000 more than his verdict with interest!

  10. amusedbutinformedobserver

    Nope. The letters won’t be “evidence” in the appeal of the jury verdict. The post-verdict conduct of Murphy is a legal non-issue. Proof of any statements that are an integral part of an offer to settle a claim is inadmissible at trial and it won’t be considered on appeal. The idea that the jury verdict should be tossed on the ground that the plaintiff made a post-verdict demand for settlement is absurd. The Herald motion is not about the law, it’s about spin and saving face.

  11. Anonymous

    I see your point, other anonymous (I’m the anon. from 12:12, above). But I guess I’m just reading it a little differently – not as some kind of threat or intimidation, so much as he’s saying, look, I won, you lost; you guys put me and my family through hell, now shut up and pay up. One other thing – these letters are out of context in that we don’t know what Purcell or his attorneys may have been writing or saying to Murphy.I guess I’m also biased by my view that in general, anything bad that happens to the Herald is good for journalism. I guess I’m not being very impartial.

  12. Anonymous

    [I’m the 12:12 and 6:46 Anonymous, from above.]Mark Jurkowitz has the details from the press conference this afternoon, over at his Phoenix blog. I’m sure everyone will have seen it, but here are some excerpts:”Speaking this afternoon, Murphy’s attorney Howard Cooper said those letters — sent shortly after the verdict — were part of ongoing private and confidential settlement discussions agreed to between Purcell and Murphy. He accused the Herald of violating the understanding that the two sides would have such talks and noted that the paper, which had been in possession of the letters for almost a year, had never mentioned anything about them until now . . . “In discussing Murphy’s request that Purcell pay him $3.26 million, Cooper said the statutory interest was accruing at 12 percent a year starting from when the suit was filed and that the Herald currently owed Murphy almost $2.95 million with an additional $322,000 in interest piling up annually. He claimed the judge’s dollar figure “could be seen to represent a hypothetical discount from the Herald’s worst case scenario,” in which the paper could end up owing more.”

  13. Anonymous

    Ken D., Close but no cigar. A party can contact another party during litigation, and even *gasp* suggest that that party contact the first party’s attorney. No ethical violation here. “[H]ad the judge succeeded in involving his own lawyers in the proposed meeting, while keeping the newspaper’s lawyers in the dark, the judge’s lawyers would be engaging in clearly prohibited conduct.”Nope. If a representative of the newspaper had decided to attend the meeting, no violation. Not “clearly” not even “arguably.” One party initiated direct contact and the other party (if they had attended) had voluntarily decided to initate contact with the other party (and their lawyers). A lawyer does not need to turn away voluntary contact.

  14. Anonymous

    I hope 1:04 anon is not practicing law in MA. A lawyer who knows an adverse party is represented may not have contact with that party without the express consent of opposing counsel. Period. Of course, no such meeting happened here, nor would it ever have happened given the quality of lawyers who represent the judge. But the answer to the hypothetical question is clear — no lawyer familiar with the ethical rules would have attended that meeting without the consent of opposing counsel.

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