The Herald has asked the state’s Supreme Judicial Court to reconsider its decision to uphold a $2.1 million libel verdict against the paper. The Herald lost a 2005 trial in a suit brought by Superior Court Judge Ernest Murphy, who charged that Herald falsely and recklessly reported that he had demeaned a teenage rape victim.
You wouldn’t think there would be much chance that the SJC would reverse its own unanimous ruling. But I’ve read the brief filed on behalf of the Herald, and it makes a strong argument that the SJC completely mischaracterized the testimony of the Herald’s only eyewitness source, former Bristol County prosecutor David Crowley.
I was in the courtroom, and I’d say the brief is right on the mark. So stay tuned.
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I’ll just mention two things.One, even if a libel verdict in this case is upheld, it seems to me that a US$2.1million in damages seems somewhat excessive for someone–a judge–who has lifetime tenure. The judge will see no loss of income. An affirmation of libel and a token damage award of something like US$1 would appear to be in order. Remittitur (reduction in the damage award) would appear to be in order. And a determination that he had been libeled would restore his reputation.Two, if the SJC refuses to reconsider its decision, I would foresee a petition to the US Supreme Court, relying on NYTimes vs. Sullivan, the 1st Amendment case. The judge is, after all, a public figure.–raj
I read the SJC decision [late] last night, and one thing struck me as odd. The SJC writes that “Crowley, the only participant who attested otherwise, testified that the plaintiff had said words to the effect of “she needs to get on with her life and get over it.” He testified forcefully that the plaintiff had not stated the words, “Tell her to get over it” and denied that he had ever told anyone that the plaintiff had done so. When Crowley saw the February 13 Herald article he was “surprised” and “concerned” because he did not know where the “tell her to get over it” quote originated. He testified that it was not accurate. Crowley agreed that he had testified, at his deposition, that if Wedge had asked him to confirm that the plaintiff had used the phrase “tell her to get over it” (as Wedge had claimed), he (Crowley) would have corrected him.”OK. But then a little later the SJC writes the following: “The evidence pointed to a distinct probability that Wedge did not speak with Crowley, the only person who reported hearing the statement, until after the February 13 article had appeared. Both Wedge (at deposition) and FitzGerald (at trial) gave testimony indicating that Wedge did not learn of Crowley’s identity (and, thus, presumably, could not have spoken with him) until after the publication of the February 13 article.”I could see actual malice there if Wedge had spoken to Crowley before the article ran and still went with the more incendiary quote. But the SJC admits that didn’t happen. So instead Wedge relied on two other court sources [granted, DAs with agendas]. Sloppy and negligent? Yes. Actual malice? I don’t think so.