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

The Times’ misleading account

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.

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  1. MeTheSheeple

    Maybe I’m just missing it in your search for nuances or lack thereof, but the Globe story concluded thusly:During the 2005 trial, Wedge told jurors that he was told about the comment by a prosecutor who heard it first-hand. But in depositions, Wedge revealed that he was only able to confirm the comment from first-hand sources after the story had been published and that the sources had given him a less inflammatory version of the judge’s alleged comment than the one Wedge used in his report.”It is fair to say that, by the end of Wedge’s testimony, his credibility on any material factual point at issue was in tatters,” the opinion said.If the Herald went around looking for sources after publishing such, er, inflammatory comments, I’m neither saddened nor surprised that the paper got smacked around.It’s not clear from the Globe’s article when the revelation of the “less inflammatory” bits came — was it as he checked after publication, or did he print something different than he’d heard? I’m assuming the first.Either way, to a layman, the effort of playing “telephone” with such extreme comments made sure sounds like “reckless regard to the truth” to me. Is it too difficult to actually check with useful sources?Disclosure: I once worked at the same craptastic paper that Dave Wedge had previously worked at.

  2. Dan Kennedy

    Sheeple: As I’ve said of this case a number of times, you can’t put that much bad journalism in front of a jury and expect it to do anything other than find for the plaintiff. You are right to be horrified by some of the things Wedge did and didn’t do. But consider.We know that, before writing his story, Wedge interviewed Walsh and FitzGerald, who gave him some variation of the judge saying the teenage rape victim had to “get over it,” and that he said it in a demeaning way.Now, did Wedge interview Crowley, his only eyewitness source, before or after? We don’t know for sure. The SJC has adopted the view that it was after. Bad journalism? That doesn’t begin to describe it, if that’s what happened.But what did Crowley say in court? He said that Wedge got the “gist” of it correct. By the way, my clear recollection is that, in his court testimony, Crowley described a pre-publication interview by Wedge, not an after-the-fact job.Did Wedge at any time believe Walsh and FitzGerald were giving him false information? I don’t think so. And whether he talked with Crowley before or after the fact, did Crowley essentially confirm what Walsh and FitzGerald have said? Yes, he did.Remember, “actual malice” is not a synonym for “wicked bad negligence.” It’s a term of art meant to describe publishing something that you know or strongly suspect to be false. I just don’t see how Wedge could be found to have committed actual malice.The Globe story is wrong in the sense that both Crowley and Walsh, in their court testimony, strongly disputed the notion that the what Murphy actually said was “less inflammatory” than what Wedge reported.

  3. Scott Allen Miller

    I think the NY Times just worded it wrong. It would have been clearer to write “…Judge Murphy might have said ‘…’ as a compassionate statement.”Help me out here, Dan. Is it a defense against libel to say that the “gist” of an incorrect report was correct, — that is, it was inaccurate but true? That’s a dangerous precedent it seems to me. Throw in an anonymous source with an axe to grind, and the quote “Dan Kennedy said he beat his wife at poker” becomes just “Dan Kennedy said he beat his wife”. Both statements are true (genuine, real, not false) but the latter one is inaccurate (erroneous and inexact).Not to make this about me, but I’m reminded of when Eileen McNamara read a sarcastic remark attributed to me on the WRKO website but wrote in the Globe that I “sneered” something “scornful” on “WRKO”. She mischaracterized what I said about a very sensitive issue on WRKO and how I said it because she didn’t hear it first hand. Reporters ought to be careful about creating the impression that they heard how a comment was delivered when they didn’t. Reporting hearsay should be done carefully. This Globe story about Travaglini’s rebuke of Patrick is a good example of the right way to do it, I think. What Trav said was made clear but most importantly so was what he meant. He wasn’t joking, misunderstood, or mischaracterized at all.Finally, Dan, bringing to light how the other news media jumped on the bandwagon against Murphy is important. It’s libel to repeat libel, and those reports didn’t help his reputation. Would Murphy have a case against the Globe, et al?

  4. Anonymous

    Here’s what I don’t get. The appeal was for the judgment of $2 million. Easy Ernie had a rep for being nice to bad guys in other cases before the Herald ran this story. Was $2 million worth of harm done to his already shaky reputation or were the judges just looking out for each other here?

  5. Dan Kennedy

    Scott:It strikes me that Murphy might have had a case against the Globe, because it repeated the “get over it” quote and characterized it as demeaning. What’s unclear is whether the Globe got it from “prosecutors” or simply took it from the Herald. I don’t think the other news orgs have anything to worry about — their stuff is all on the record and does not purport to reveal anything Murphy supposedly said behind closed doors.Libel law regarding public officials such as Murphy is pretty esoteric, and that’s what I’ve been trying to bring out. The basic rule in any libel case is that the report is libel-proof if it is “substantially” true. It seems to me that Wedge’s numerous errors were not defamatory, and the stuff that was defamatory was also substantially true.Bottom line: If, as the jury and now the SJC seem to believe, Wedge deliberately altered “She’s got to get over it” to “Tell her to get over it”; and then deliberately characterized those words as demeaning when he knew Murphy was trying to be compassionate; and, finally, deliberately stayed away from the two defense lawyers because he didn’t want them to piss on his story; then hell yes, he committed libel, even under the “actual malice” standard.But if, as I believe, Wedge simply screwed up the quote; and his source, Crowley, believes Murphy was being “insensitive” regardless of whether it was “tell her to” or “she’s got to”; and Wedge failed to interview either of the two defense lawyers because he was on deadline and couldn’t be bothered; then he didn’t commit libel.If Murphy were a private figure, then he only would have had to show that Wedge was negligent. Wedge was certainly negligent, although I don’t think Murphy succeeded in showing Wedge’s reporting was not substantially true, at least on the “get over it” point.

  6. John Galt

    A bit nonplussed, but where’s the beef? Does it matter in the slightest what the NY Times prints concerning a local Boston story?

  7. courtroom observer

    Two comments. One, Judge Murphy is a compassionate human being. He uses a lot of program talk involving empowerment and not falling prey to victimhood. It is quite believable that he compassionately stated that the 14-year-old victim needed to get past her victimization and live life.Two, in hindsight, Wedge got used by the ADA’s hyperbole and the Herald’s lawyers got clobbered by Judge Ernie’s well-honed flair for drama during the original libel case. There was the judge talking about how he had to wear diapers because the public criticism had wrecked his colon. Meanwhile, the Herald’s reporter came off looking like a snotty, young insensitive Tabloid dude. The Herald’s lawyers were so confident that the First Amendment would prevail that they paid little attention to how the case looked to a jury in human terms.Fast forward to an SJC whose members clearly felt protective for “one of their own.” If Murphy were a selectman or state rep., it is doubtful the Herald would be emptying its pockets right now.

  8. Dan Kennedy

    Courtroom Observer: What you’ve written is one of the smartest analyses I’ve seen anywhere.

  9. Amusedbutinformedobserver

    Anyone reading the decision comes to two conclusions;1. Wedge,a practitioner of the only profession in the world where you are paid to tell the truth, lied under oath. The decision says he was “thoroughly and convincingly impeached by his own deposition testimony” in which he “contradicted his trial testimony in every material respect.” Worse, his cover-up included destroying evidence: “The jury were entitled to draw the negative inference that Wedge discarded his notebook in a deliberate effort to conceal what he knew were inaccuracies in his reporting.”Whether the notes were privileged or not is irrelevant. What we have here is absolutely disgraceful, and all the excuse-making, hand-wringing and first-amendment-invoking in the world can’t change that. He told two versions of events under oath. And rather than honorably invoke the argument that his notes were protected, he destroyed them and then tried to justify it.2. The Herald intentionally sensationalized the story for the sake of sensationalizing the story: “Purcell admitted that he knew that attributing the ‘tell her to get over it’ quotation to a judge in the Superior Court would cause a ‘media frenzy.’ The conclusion is inescapable that a ‘media frenzy’ was, in fact, exactly what the defendants intended.”Get off the soapbox and deal with adjudicated facts.Far from an assault on freedom of the press, the Murphy decision points to reprehensible behavior on the part of a reporter and the paper that employed him.Attempts to avoid responsibility or to justify the tawdry behavior of the Herald and its employees is not defense of freedom of the press; it marginalizes those freedoms by cloaking them in irresponsibility

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