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.
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.”