Not to keep flogging the equine carcass, but I’m puzzled by this passage in today’s New York Times account of the Herald libel case. Times reporter Pam Belluck writes:
In February 2005, a jury found [for] the judge after testimony about some inaccuracies in the articles and statements from two of Mr. Wedge’s sources that instead of “tell her to get over it,” Judge Murphy might have said “she’s got to get over it,” a compassionate statement.
Two points, both drawn from my Phoenix report, written during the 2005 trial:
1. Depending on how you count, Herald reporter Dave Wedge had either three sources or one — but definitely not two — for his assertion that Superior Court Judge Ernest Murphy had said of a teenage rape victim, “Tell her to get over it.” Wedge at the time claimed three. But it turned out that he had one eyewitness source, then-prosecutor David Crowley, who, in turn, told Wedge’s other two sources, then-district attorney Paul Walsh and Walsh’s spokesman, Gerald FitzGerald.
2. More important, Belluck takes it for granted that if Murphy had actually said “She’s got to get over it,” then that would be “a compassionate statement.” Not necessarily. Murphy’s lawyer, Howard Cooper, certainly tried to make that case, and the Supreme Judicial Court bought it in its decision yesterday. But there was plenty of evidence cutting the other way, too.
For instance, Crowley, in his pretrial deposition, said he found “She’s got to get over it” to be an “insensitive” statement on Murphy’s part. At the trial, Crowley — obviously a reluctant witness — testified that Wedge had gotten the “gist” of Murphy’s quote correct.
Walsh himself testified that Crowley was upset enough by Murphy’s “get over it” statement to tell him about it. “The particular words didn’t make any difference to me…. Mr. Crowley was none too happy about the statement, and neither was I,” Walsh said.
Finally, as I noted yesterday, a Globe editorial, citing “prosecutors,” reported that Murphy had said of the rape victim that she had to “get over it” and criticized Murphy for acting “as if rape were somehow one of the bumps on the road of life.” Clearly the Globe’s editorialist didn’t believe it mattered whether Murphy had said “tell her to” or “she’s got to.”
It’s too bad the Times missed these distinctions, because the story makes it appear that Wedge, by botching part of the quote, had deliberately transformed a compassionate statement into one that was demeaning toward the victim.
Yes, that is what the jury found and the SJC affirmed. But there was just as strong a case — stronger, in my view — that the “tell her to”/”she’s got to” dispute was a distinction without a difference. And if Wedge knew or strongly suspected that what he was reporting was false, as the “actual malice” standard requires, then Crowley and Walsh committed perjury. Just to be clear: I don’t think they did.