By Dan Kennedy • The press, politics, technology, culture and other passions

Murphy’s lawyer speaks

Mark Jurkowitz covered a news conference called earlier today by Howard Cooper, the lawyer for Superior Court Judge Ernest Murphy. Among other things, Cooper called the Boston Herald’s decision to release letters that Murphy sent to Herald publisher Pat Purcell “a publicity stunt in an apparent attempt to continue the paper’s campaign of libel against Judge Murphy.” Think about that.

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  1. Anonymous

    Dan, you’re missing a key point as to why Purcell held onto the letters. Not because he wasn’t offended. But because Murphy followed through on his threats this fall when he filed a bogus court action trying to freeze the Herald’s assets. That was done despite clear evidence that the Herald was fully indemnified to pay the judgment if the appeals failed. And it was done at a time when the Herald was seeking investors and then planted in the Globe to hurt the Herald’s sale prospects. So we have the threat and the follow-through. It is what it is.

  2. Anonymous

    So the Herald is now libeling Murphy by printing the letters Murphy wrote? As this unfolds, it increasingly looks like Wedge got it right the first time around.

  3. amusedbutinformedobserver

    Murphy’s court action was anything but bogus, at least from the public information available. Do we know that the Herald policy would have covered THIS occurance, in total? We don’t. I have heard talk of the Herald being insured, but where’s the proof it was fully indemnified? Insurance policies have exclusions and limits and Murphy has a judgment, so he has the right to ask for security for that judgment. Does filing the motion to freeze assets put the Herald at a disadvantage? Hardly. The sale of the Herald properties would no doubt be an asset sale,and even if it was a stock sale, the judgment is public knowledge and any buyer would want the same kind of protection Murphy wants. And Murphy’s motion was “planted” in the Globe? How about the Globe reported on a publicly filed document and the Herald got beaten on the story? Murphy played hardball to get a settlement, now the Herald is playing hardball to get a settlement, using its only asset — its press — to try to make Murphy look bad so he will settle. Don’t think the Herald hasn’t made an offer to settle for a relatively modest amount.

  4. Anonymous

    The Herald story today includes this gem: “[Murphy’s Letters] set off a potential investigation by the Commission on Judicial Conduct…” How on earth does one “set off” a “potential” investigation? Does that mean one can “set off” a “potential” bomb? Such constructions are the fruits of the vineyards of biased journalism, which got the Herald into this mess in the first place

  5. Dan Kennedy

    Such constructions are the fruits of the vineyards of biased journalism, which got the Herald into this mess in the first place.I think this gets to the heart of the matter, but not as Anonymous 7:35 intended. Much of the pro-Murphy, anti-Herald commentary I’ve seen is rooted in an insufficient appreciation of the constitutional right to free speech and freedom of the press. The Herald’s coverage of Murphy was horribly biased. But is biased journalism now illegal?The Herald has a constitutional right to publish anything it likes about Murphy — or any other public official or public figure — as long as it does not demonstrate reckless disregard for the truth. That doesn’t mean its journalism is something we should applaud. It does mean that, as long as it stays on the right side of the Times v. Sullivan line, its journalism is legal.And, as I’ve argued on several occasions, I think there’s some fairly compelling evidence that the Herald’s reporting was substantially true (that doesn’t mean 100 percent accurate). If you agree, then Murphy shouldn’t have been able to win even if he were a private citizen.

  6. Anonymous

    Apologies if this is obnoxious, but I am pasting here what I posted yesterday, down in the Dec. 21 “Parsing the Murphy letters” thread. These are quotes from Mark Jurkowitz’s blog entry about the news conference yesterday – I think these excerpts lend some context and insight:”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.”

  7. Dan Kennedy

    Anonymous 11:07 – What you’ve done isn’t so much obnoxious as it is redundant. I linked to Mark’s blog item with very little commentary so that people would read it. What’s the point of your reposting most of it in the Media Nation comments section?

  8. Anonymous

    Dan, I apologize! I wanted people who didn’t bother clicking the link to see those passages. Guess I don’t trust people to do the homework.Happy, safe holidays and New Year.

  9. Provincial Congress

    I don’t see how it’s valid to conclude that “it increasingly looks like Wedge got it right the first time around” based on anything that’s come up so far. The substance of Wedge’s libel was his false allegation that the judge mistreated a rape victim and told her to “get over it”. It was this falsehood that led to the judge being villified in the national press, receiving human feces in the mail and having his daughters threatened with rape on a chat room. The judge could be filmed tomorrow committing arson, and it still wouldn’t validate the original libel.

  10. Anonymous

    “Amused but informed” is perhaps amused but clearly uninformed. The Herald’s insurer — which also insures major print outlets around the nation– has indeed stated that it has the dough to cover murphy through appeals. I’ll let amused do the simple factiva work needed to find this out herself given her state of amused uninformativeness. (“I have heard talk of the Herald being insured” — now that’s reportin!) AI is also amusingly uninformed about the way laswuits are planted in the newspapers. The Globe “beat” the Herald on Murphy’s bogus asset-freeze motion by the simple expediency of taking a call from Howard Cooper or one of his gnomes and being told, “Here’s a copy of the motion we’re filing against the Herald at 5 minutes to five o’clock this afterrnoon in Superior Court.” This little parlor trick ensures the Herald doesn’t see the motion till the next day, but legitimizes it’s possession in the hands of the Globe. In return, the Globe rewards Cooper and co. with a nice long slanted story that it can tout as a scoop. If Amused doesn’t even know about this basic parlor trick, she’s is, er, deeply uninformed. Whatever respect I had for Cooper and co. for their forceful trial work against the Herald has evaporated in the wake of these two developments: the bogus and destructive and arguably now extortive asset motion, and the vicious nonsense spewed by Cooper at his press conference Thursday, where he defended a client who had blindsided him. There, Howard made the looking-glass assertion that the Herald’s publication of Murphy’s own words are a “continuation” of the Herald’s campaign of libel against Murphy. If I get this right, the Herald has libeled Murphy for printing Murphy’s own words. Now I’m the one who’s amused.

  11. Amusedbutinformedobserver

    The motion to freeze assets is a valid tactic and certainly not a “bogus” motion since it was properly filed and is therefore real, not “bogus”. Claims that the coverage exists are not enough; Murphy is entitled to proof, properly presented in court, that there are no exclusions, limits or deductibles that will hamper his ability to collect. The statements of insurers are not enough, since, given its exposure, the insurer is probably absorbing a large portion of the cost of defense, and therefore helping the Herald plot its strategy. Why did the Herald add new lawyers? Did the Heraldmake the decision to hire them? Did the insurer? Is there any agreement between the Herald and the insurer that led to the Herald using its latest tactics? Where is George Regan in this? ??”unformed about the way lawsuits are planted in newspapers” Hardly. Most stories on which one outlet scores a beat are the result of someone leaking something with the expectation that being the first source will give him/her/it some influence over at least the first day’s play. That’s right out of Newspapering 101. So what? The Herald’s antics this week do not rise to the level of libel. They do, however, exhibit the same behavior that led to the judgment in the libel suit — individual facts are not reported as facts in proper context, they are used building blocks in attempting to make an argument or to cast events in a light favorable to the Herald’s agenda, whether it be to try to gain another notch on its bedpost by taking down a judge or its need to squirm out from under the libel judgment against it by taking aged correspondence that was part of a legitimate and non-admissible effort to settle the case and using that to again paint the judge in an unfavorable light thus putting pressure on him to settle. Should we salute and honor the Herald for using its news pages to advance its legal position? That is precisely what is happening, but somehow shoddy journalism in the Herald gets a pass while perceptions of bias at the Globe are fodder for ridicule. And extortive demands? The judge is asking for less than three-quarters of what he would get following a two-year appeal process that piles the interest payments to more than five years worth at 12 percent. Stop buying the Herald’s spin.

  12. Dan Kennedy

    I can tell you from personal knowledge that it’s not unheard of for the winner in a libel case to demand that a news org’s assets be frozen in order to preserve the judgment. However, my understanding is that it’s an unusual move, prompted when there is some reason to believe the defendant won’t be able to pay. Of course, Herald Media is shaky enough that you’ve got to wonder.

  13. Anonymous

    In response to amusedbutinformed, discovery gave the judge the right to a copy of the Herald’s insurance policy, so he is not in the dark about possible exclusions, deductions, etc. To pretend that the attachment motion was not a tactic to force a settlement in view of the Herald’s imminent business transaction is as naive as pretending that the Herald did not think its motion would put some heat on the judge to explain his behavior. And talk to anyone who has been sued for unfair settlement practices — letters like that are definitely admissible to prove those kinds of claims. Finally, to say that the judge is asking for less than 2/3 of what he might get 2-3 years from now (assuming that the Herald decided not to settle and the judge wins on appeal) is just not a serious statement. If you owed the bank $100 today and it wrote you letters saying the smart thing to do is pay it $150 today — not because that’s what you owe right now but because you might owe it some time in the future (but only if you chose not to pay the lesser amount today), I’m guessing you might not see that as a fair attempt to collect your debt. Spin comes from both directions.

  14. Anonymous

    Anonymous above pretty much disrobes Amusingly Uninformed on points of salience. But it’s even more simple: all the Cooper-Murphy gang had to do to was call the Herald’s lawyers and ask them what the indemnity was. They would have gotten a very simple answer: we are insured up to $12M on this case. (The documentation is also on paper, as anon above says.) The insurance covers the period when the libel took place. The Herald could, as Amusing clearly wishes, float away tomorrow, and the insurance co. would still be on the hook. This was what happened in the Archdiocese abuse suits. Insurers who were no longer covering the church were paying for judgments because they HAD insured the church at the time the abuse took place. But of course the coop-murph axis was CIRCUMVENTING the Herald’s lawyers to get a cashier’s check from Publisher Purcell, as Ernie’s billets-doux make plain.Kennedy and the rest of the Bay State Globe-ocracy have already bought the spin that the Herald is in some sort of financial tailspin (“Herald Media is shaky enough that you’ve got to wonder”). This is meaningless. Why not “the NY Times subsidiary Boston Globe is shaky enough that you’ve got to wonder?” Such a statement could also be supported by the facts that the Globe is a very poorly performing subsidiary of a multinational whose stock is in freefall and that has just cut scores of jobs etc. … No spin here. Amusing would have profited from being at the cooper-murphy presser on thurs., where the obvious seething and vitriolic words about the Herald’s pantsing of murph via his own scrawls made clear that the goal of this “law” outfit is to drive the Herald out of business. Hey, it’s a free country, and if you want to file frivolous motions and flip them to a newspaper’s competitor to get your way, go ahead. But expect the attacked party to fight back and don’t whine like a stuck sheep when they do. Amused calls the murphy ransom notes “aged correspondence that was part of a legitimate and non-admissible effort to settle the case.” There’s only one word for that statement: Maaw-haw-haw. Hey, Amused, could you live any farther up the cooper-globe rectum?Reminder: “Judge” Murphy has a life appointment to the bench in a state that essentially can’t unseat a judge. Our state constitution was written by John Adams. He must be so proud.

  15. Dan Kennedy

    “Stuck sheep”?

  16. Anonymous

    A good editor would have changed it to “bleat like a shorn sheep.” But stuck sheep bleat too, Dan-o. Think of it next time you gnaw a lambchop. Stuck lawyers bleat loudest of all.

  17. Amusedbutinformedobserver

    Murphy’s motion to freeze assets was anything but frivolous, while the Herald motion to, as one of its acolytes puts it “toss the lawsuit” because Purcell suddenly found himself offended by Murphy’s ten-month old letter is without any legal merit. If the Globe was tipped to the filing of Murphy’s motion, again, so what? The adverse party is entitled to service of the motion, tell me if I missed it, but right now I have yet to see any allegations that the Herald was not served with the motion in accordance with the Rules of Civil Procedure. The winning plaintiff is entited to security that the judgment will be paid. The judge has a right to go beyond discovery and to force a filing with the court that the judgment will, if upheld, be paid by the insurance company. The mere existence of a policy guarantees nothing. Most unfair settlement practice cases are filed against insurance companies, alleging violation of a specific statute. But beyond all that, was Murphy’s motion an effort to bring more pressure on the Herald to settle? Of course it was. And in the immortal words of the New York Daily News, So What! What is noteworthy here is that Murphy has pursued the case in court perhaps using another media outlet to limit the damages from the inevitable Herald self-serving interpretation of events on its ‘news’ pages, while the Herald has pursued the matter with its usual mascarade — dressing its own agenda in the cloak of journalism while using the filing of court papers as a mask. The Herald’s motion was nothing more than an excuse to break the confidentiality of the settlement talks in order to justify trotting out months-old settlement correspondence that it did not previously consider worthy of reporting.

  18. Anonymous

    Hey amused, repeating the same tepid, biased arguments over and over again does not make them convincing or right. But let’s go over their lameness one last time.- no one is alleging a violation of civil procedure regarding the frivolous assets motion. we are just noting the sleazy duplicity of the murph-coop cabal by pointing out that they gave it to the globe before it even arrived in the hands of the servee (herald). no doubt you enjoyed that it was done this way. fine. your dislike for the herald is clear and you are motivated by that dislike. but don’t try to con us into believing it was an ethical move.– as noted repeatedly, the herald was not “suddenly” offended. It noted the obvious link btw. the threatening murphy letters of earlier this year (did you read them, amused?) and the garbage cooper motion and saw the transparent extortionary threat and subsequent action. — finally, you are of course swallowing hook, line, sinker, rod, reel and dock the cooper spin that the letters were “confidential.” sorry, amusing, but the judge who writes threatening letters on judicial stationery in violation of canons of law does not get to dictate ex post facto that they are “confidential” to the aggrieved party.– was the herald’s publication of murphy’s repugnant and — according to the judiciary – canonically illegal letters a p.r. coup? duh. Whose fault is that? I know! Let’s blame the Herald for opening its mail. By the way, it was also a news scoop. but of course you would have been happy only if the the letters had been given by the herald to the globe for “fair” coverage.

  19. Anonymous

    And I think we are all forgetting the basic point: Murphy thinks he can pick and choose between being a public figure and a private one. Notwithstanding what I consider to be a crazy jury decision, Murphy has to decide whether or not he likes the judicial restraint attached to a lifetime job with mucho power. If he thinks he can have it both ways, he should research what happened to the late, unlamented MA Judge Jerome Troy. Murphy got the smell of blood in the courtroom and it got the better of him while he had a pen in his hand.

  20. amusedbutinformedobserver

    Taking a moment from filling the stockings with care…I’m not sure how 4:42 can determine that the Murphy motion was leaked (assuming, for the sake of argument, that one can “leak” something in the public domain) without the Herald being served.The Herald trotting out the Murphy letter ten months late indicates either the paper is so journalistically incompetent that the news value of the letters did’t become apparent until it added new lawyers or the paper decided to turn the letters into a news story to (once again) try to advance its corporate agenda through its news pages. There is no other option. Sleazy or incompetent — which is it?

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