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

Another slap for Judge Murphy

This has become the story that won’t die, and I’m sick of it. So take it away, Jessica Van Sack:

The Commission on Judicial Conduct has recommended Superior Court Judge Ernest B. Murphy be publicly censured, suspended without pay for 30 days and fined $25,000 for sending two “bizarre” and “threatening” letters to the publisher of the Boston Herald.

Globe story here.

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  1. Anonymous

    EB3 here. I actually thought the herald was easy towards the judge on this latest story. Considerig Purcell’s past whining. Purcell complaining about Murphy’s strange and somewhat minor unethical demand in recieving payment of the jury award is like the Patriots complaining that the Giants over celebrated. Just like that game will go down in sports history, Judge Murphy has made the Herald look ridiculous and it will go down in legal history. Dave Wedge is the babe ruth and the herald is the new york yankees of terrible, fraudulent journalism.

  2. Anonymous

    “Somewhat minor unethical demand”? Are you f****ing nuts? Extortion by a judge is “minor”? Even in MA or LA, this is just wrong.

  3. AmusedButInformedObserver

    So what’s worse, a judge being disciplined for getting pissed off or a newspaper found to have committed the cardinal sin of journalism — libel?Murphy wins on points, as no Herald headline or attempt at payback can hide its shoddy journalism on the original story.

  4. mike_b1

    “… and I’m sick of it.”Honest, but worrisome, from the standpoint that familiarity breed contempt.

  5. Anonymous

    EB3 Again,If I was the herald i would ignore these stories and never mention Murphy. Why does Purcell want to remind people that his paper lies and makes up stories. I mean that is what the jury found and the SJC unanimously agreed with.Pat Purcell the Boston Media Mogul. One newspaper going down in legal history as the biggest rag ever, and one billboard on the expressway which he needed to get help from Romney administration to get back oor permitting.Purcell is a slimely smarmy man.Judge Murphy is a regular guy who the Herald tried to destroy.What’s gonna happen Pat when you are not around to protect your kids in their big big jobs at your newspaper?

  6. Dan Kennedy

    EB3: Just because I’m sick of this doesn’t mean I’m going to let you and other Herald detractors run wild. For those who are interested and are not intimately familiar with the case, here is a reasonably concise overview with some useful links.Bottom line: I think the evidence strongly suggests that the Herald did not libel Murphy, and that its reporting — though marred by some errors and sensationalistic — was substantially true, which is supposed to be the legal standard.

  7. Anonymous

    EB3 here Dan I strongly disagree. I did not read a concise overview. I chose to read instead the highly detailed Supreme Judicial Court opinion unanimously agreed upon by the justices which clearly shows that Wedge and his editors intentionally avoided facts and did not proceed to investigate anything that made their assertion untrue. Ignorance is bliss school of journalism.For you to say that what wedge reported was “essentialy true” causes me wonder. The judge never told anyone to tell the victim to “Get over it!” In fact all the evidence showed he acted with comapssion towards the victim.A jury and the Supreme Judicail court all agree that wedge and the herald libeled Murphy.Thatks for the concise overview. I prefer however, to go to the source. The highly detailed SJC opinion which tells me, Don’t trust the Herald.”Which part of the SJC opinion do you find legally or factually flawed dan?

  8. Dan Kennedy

    Sigh. I have read the SJC opinion, EB3. If others wish to do so, here it is.Your view is based in part on incorrect facts. All parties concede that Murphy said of a teenage rape victim that she had to “get over it.” That’s not even remotely in dispute.The Herald reported that Murphy’s exact words were “Tell her to get over it,” and that he said it in a “heartless” and “demeaning” manner.The Herald’s source, former prosecutor David Crowley, testified that Murphy in fact said “She’s got to get over it.” Murphy contended that he meant this in a compassionate way. But Crowley disagreed, testifying that even though Herald reporter Dave Wedge botched the quote, he got the “gist” of Murphy’s meaning right.That, right there, is the nub of where I disagree with the SJC. In order to show libel, Murphy had to prove that the Herald knew what it was reporting was false, or strongly suspected that it was false.I don’t think Murphy came close to showing that — indeed, I think the Herald’s account was substantially true. Convincing a jury that a news org has committed libel is the easiest thing in the world. And I think the SJC simply adopted Murphy’s arguments rather than conducting its own, independent inquiry, which is required when the First Amendment is on the line.Let’s not forget, too, that the Herald story was just one in a long list of news accounts by a number of newspapers, including the Globe, reporting outrage over Murphy’s leniency and attitude. This did not come out of the blue.Finally, I think Murphy’s post-verdict behavior helps us understand the underlying truth.

  9. Anonymous

    EB3,I’m guessing DK got the gig at NU because they perceived him to have a better-than-average grasp of the craft he teaches. He has covered this case comprehensively in the past. Go haunt another house.

  10. Peter Porcupine

    EB – ‘Regular guys’ do not send demands for cash/consideration of official judicial stationary. Even if the Herald was grossly wrong, instead of common and garden wrong, that would still warrant the reprimand.

  11. Anonymous

    EB3 here. No thank you anon 8:40. My spirit lives here.Sigh, Sorry Dan, I did not mean that you did not read the SJC Opinion. However you seem to be very selective in your facts and interpretation of them. As you know facts are stubborn. They do not go away. That is why my post is rather lengthy. Sorry for that too.(Because of length I will cross post this on BMG) Facts reported by SJC1. Wedge’s Trial testimony – At trial Wedge testified under oath to following version of events : Wedge spoke with District Attorney Walsh and Gerald FitzGerald, his chief trial counsel. They both told Wedge that Judge Murphy made certain statements in front of others, including the “tell her to get over it” statement. Wedge testified he met ADA Crowley with Walsh and Fitzgerald. According to the SJC opinion Wedge testified at trial that “Crowley confirmed to Wedge that Walsh had correctly characterized the statements. Wedge read from his notebook the quotations that would appear in the Herald, and Crowley did not indicate that any of the information was inaccurate.” Wedge testified he went to the courthouse to get a response from Judge Murphy but was turned away by a court officer. At trial wedge testified he discarded the notebook in which he had recorded the plaintiff’s statements, as told him by Walsh, FitzGerald, and Crowley, sometime after the February 13 story ran.2. Wedges Deposition Testimony –Wedge testifies under oath at his deposition to the following version of events: (quotes pulled directly from the SJC opinion.)- he never met with ADA Crowley prior to the publication of the story- “conceded that his sources for the statement (FitzGerald, Walsh, and Crowley) related the statement using slightly different words, and that, instead of “tell her to get over it,” the words told him may have been, “she’s got to get over it.”- that all three of his sources had told him that the plaintiff had said, “She’s a [fourteen year old] girl, she got raped, she’s got to get on with her life and get over it.” He admitted that FitzGerald originally had told him that the plaintiff had said the words after the sentencing hearing in the rape case.- his information had changed prior to the libelous article- he had no source at all for the report that the words had been spoken when prosecutors had “confronted” the plaintiff over his lenient sentencing practices. “According to Wedge, the confrontation context may have been a fabrication.”- Wedge could not give details about the court house, the court room, or the court employees who barred him from seeing the judge when he was looking for a response.- “Wedge conceded that the statement in the February 14 article reporting that the rape victim “took the stand and tearfully told the [plaintiff] how the rape had affected her” was false. Indeed, in a different article appearing in the Herald on February 14, directly alongside Wedge’s article, it was correctly reported that a prosecutor had read the victim’s impact statement in court.”- “Neither Wedge, nor any other Herald employee who testified at trial, could name one person at the Herald who either edited, or checked for accuracy of, the content of Wedge’s articles.”The SJC concluded that “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.”3. Other Witnesses TestimonyThis speaks for itself“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. He also testified that he had never told Wedge that he had heard the plaintiff had demeaned or belittled the young rape victim or heartlessly demean any victim. Crowley testified that, the day after reading the February 13 article, he went to see FitzGerald (who was his superior), and told him that he was not pleased with what had been said in the article.”The only witness in support of Wedge was ADA FitzGerald who confirmed that Crowley told him what Wedge reported. A reasonable jury could have inferred that Fitzgerald was bias because, according to the SJC,“FitzGerald was the only witness at trial, besides Wedge, to testify that the actual words Crowley had told him, and that he and Walsh had repeated to Wedge, were “tell her to get over it.” The jury’s attention with respect to FitzGerald’s testimony, however, was clearly focused on the probability of bias. The jury heard evidence that FitzGerald had known the editor-in-chief of the Herald, Andrew F. Costello, Jr., for over twenty years, both professionally and socially. FitzGerald testified that his daughter had worked for the Herald from 2001 until 2004 (first as an intern, later as a reporter), and that she had obtained her job, at least in part, because of his friendship with Costello. FitzGerald had once represented one of Costello’s family members in a criminal matter. As conceded by defense counsel at oral argument, determinations of credibility under the Bose standard remain the province of the jury. While it is impossible to know for certain exactly what credibility determinations led to the jury’s verdict, it is clear that the jury did not believe FitzGerald.”Dan Kennedy believes the jury got it wrong because he says, “in order to show libel, Murphy had to prove that the Herald knew what it was reporting was false or strongly suspected that it was false.”Dan goes on to say “I don’t think Murphy came close to showing that — indeed, I think the Herald’s account was substantially true. Convincing a jury that a news org has committed libel is the easiest thing in the world. And I think the SJC simply adopted Murphy’s arguments rather than conducting its own, independent inquiry, which is required when the First Amendment is on the line.”Last thing first Dan, the SJC did just that. It examined the entire transcript and record and made an independent determination that a reasonable person could find beyond a preponderance of evidence that David Wedge acted with malice afore thought. That is what is meant by independent inquiry.As for Murphy coming close to prove his case we must look at all the factors which a jury must use in determining the truth when two versions of events differ. Credibility is everything. How do you defend Wedge destroying? That alone says much. The victim never testified but Wedge reported she did, in front of Murphy and crying.Who would you believe Dan?

  12. Anonymous

    EB3 here. Peter, you are right. But that was all he did wrong. If he sent it on personal stationary there would be no proble. This was not a shakedown.Just a bad way off going about getting paid.For which he should be punished.Sort of like the parent of a rape victim beating to near death the rapist.

  13. Dan Kennedy

    EB3: I’m going to try to bring this to a close, but I do have two questions for you.1. What do you make of Crowley’s testimony at trial, in which he described Wedge’s interviewing him prior to publication and getting the “gist” of the quote right? What do you make of Crowley’s testimony that he was so angered by Murphy’s demeanor that he immediately complained to Walsh?2. Wedge made a huge error in reporting that the victim had testified. The truth is that the victim was so shattered that she could not speak for herself, and had to have an advocate speak on her behalf. But how does that affect the alleged libel? How does that change our understanding as to whether Murphy had “heartlessly” demeaned her?The Herald relied on official sources who were angry with the way Murphy was doing his job. The paper made mistakes, but I continue to think it’s ludicrous to conclude that the Herald knowingly published falsehoods, which is the standard for libel.

  14. Anonymous

    EB3 again.Dan you say the “The Herald relied on official sources who were angry with the way Murphy was doing his job. The paper made mistakes, but I continue to think it’s ludicrous to conclude that the Herald knowingly published falsehoods, which is the standard for libel.”Actually the Heralsd relied on its own reporter who relied on scant evidence not up to journalistic standards to report that a Judge was mocking young rape victims and haveing people send messages to her to “get over it”. Libel of a public person does not have to be an outright law. It just can’t be the ignorant is bliss type of reporting.Fpor instance Dan, if you called Bob Ryan and told him you were just signed by the Red Sox and would be starting in left field tonight, I would think, that as much as Bob Ryan loved the story, he would verify before printing it. If he did not real liobe because no damages. But what if instead you told him you just saw Larry Bird shoot Bill Russell in the face? If Ryan printed that w/o checking it and it was false don’t you think he acted with malice. You verify stories. You check them. The bigger they are the more effort goes into verification. You can’t print the news that sounds good. You ahve to print the news that is truthful.

  15. Dan Kennedy

    EB3: An excellent analogy, since it proves you don’t understand libel. If I’m a public figure, and if Ryan can show that he believed what I was telling him was true, then no, he didn’t commit libel. Libel has only a passing relationship with journalistic standards.

  16. Anonymous

    EB3 here,dan before I respond to your criticism of my lousy analogy and your personal insult. 🙂 (C,mon Dan , you must know by now I’m a lawyer. I know this sounds like a dink, but on this stuff regardless of expertise in journalism, a lawyer who stays up to date on this stuff is real arrogant when someone who is not a practiceing lawyer tells him he does not understand the law. Really dude, don’t go there. We can disagree on court opinions but smartin’ up)But anywaydid u recieve my prior comment where I answered your two questions in detail? The comment above was suppose to compliment that.As to the analogy wouldn’t Ryan check the story out? Yes. Of course he would. If he didn’t he would write that Dan kennedy reports he is playing for the Red Sox. He would not report it as fact. Just that you said so.But, if he called the red sox to confirm the your crazy assertion and they said yep, kennedy’s telling the truth, then Ryan would report it as fact. That is the distinction. You see the difference my non-law-degreed compadre? 🙂 Wedge should have known better to print it because there were signs not to trust it. Big differnce between what Murphy said and Wedge reporting that Murphy told someone to “tell her to get over it.” Surely you see the differnce between that statement and the others Dan? Just like Ryan shouldn’t trust you, no matter how famous, if you told him you were just signed by the Red Sox.That is the distinction my lousy analogy was making.What if Ryan assumed it was so crazy that it could not be true, but if it was true it was a great story. So, what if he knowingly did not confirm the story with the red sox because his reasonable mind told him it was very likely they would say it is not true. Kennedy’s back on the crack pipe. Dan Kennedy is not starting in left field against the yankees tonight.Do you see the distinction my non-lawyer compadre? :)If Ryan believed what you said was true, without confirming it, then Ryan is a putz who would of lost his job long ago.You would have to agree with that Dan. Wouldn’t you? Did you get other comment?I don’t save this crap.

  17. Anonymous

    EB3 here,… aagaain”Libel has only a passing relationship with journalistic standards.”(like bowel movements)Isn’t that the see-no-evil-write-no-evil-ignorance-is-bliss School of journalism

  18. Dan Kennedy

    EB3: I don’t know which comment you’re referring to, but I have posted all your comments. Just got back from class.So you’re a lawyer, eh? No, I didn’t know. You also wrote, “The judge never told anyone to tell the victim to ‘Get over it!'” Not true. Even Murphy concedes that he said it, but that he meant it a different way.

  19. Anonymous

    EB3 here, aaaaaagaaaaain,Yeah Dan I didn’t think you got it. So here I goLet’s define our terms here. Dan, do you agree that telling someone to tell a child rape victim “to get over it” is much different than if instead that person said, as the SJC reports, “she’s got to get over it.” ?Dan, I am not sure if you believe there is a difference. Please show me where Murphy admitted saying “tell her to get over it”. I cannot find that anywhere. adding the words “Tell her” to “Get over it” os what makes this libel. Don’t you get that Dan? Yeah Murphy admitted the words “get over it” not “tell her to get over it” My God Man! Don’t you see the difference?Perhaps you mistakenly believed that he did testify that he said it.Then I can understand your flawed conclusion. If you cannot document where he admitted to saying “tell her to get over it” then please explain your position without this important misfact to back you up. As to your 2 questions above.1. What do I make of Crowley agreeing that Wedge got the “gist” of statement right and Crowley complaining about Murphy to his boss.Answer: Saying gist of statement was correct during testimony without taking in entire testimony into account, which jury is required to do, does not mean that Crowley said that Murphy said to “tell her to get over it”. In fact Crowley denied Murphy said that and more importantly denied that he told Wedge that. That is the whole case. That is the statement at hand and much much different than saying she “has to get over it”. What does “gist” mean and in what context did jury hear it and how did it fit in with the entire testimony. That is how it works. That’s what trial testimony is all about. As for Crowley being angered by Murphy’s demeanor, how does bad demeanor and telling someone to tell a child rape victim to ‘get over it’ compare Dan? In my mind they are not the same thing. Question 2. Dan, you ask how does Wedge falsely reporting that the child victim testified and wept in court when in fact she never appeared in court and never testified matter in determining who is telling the truth.Answer. The relevancy of this goes to the heart of trial Dan. It is all about witness credibility. The trial is about one thing. Did Crowley say to Wedge that Murphy said “tell the victim to get over it”?We all agree the statement is damaging. Right? And “she has to get over it is not”. Right Dan?So who do we believe? Wedge or Crowley. That is what the jury was told to do essentially in this case. That is what the judge tells the jury to do during instructions. They are allowed to look at other evidence that goes to the veracity of the witnesses. So when wedge reported that the girl testified in court when she didn’t it showed that he is not always truthful, for whatever reason, when it comes to reporting material facts. And material facts related to the case at hand. It did have dramatic value, so that could have been Wedges motivation, but it was a complete falsehood. All the other little things like destroying notebook, not being able to describe courthouse. He admitted that he made-up his reported fact that the meeting took place as the result of a confrontation orchestrated by prosecutors. This is credibility. Crowley says he never said that to Wedge. D.A. Walsh says he never said to wedge that Crowley said that Murphy said that. Capiche?Credibility is everything and the facts and Wedge’s testimony show that a jury could reasonably conclude that Wedge was not telling the truth. He had no credibility.

  20. Dan Kennedy

    EB3: Let’s try this one more time. I’ll break this down into three simple statements, all of which have — as Henry Kissinger might say — the additional advantage of being true.1. Murphy testified that he said, “She’s got to get over it,” and that he meant it in a compassionate, caring way.2. Wedge reported that Murphy said, “Tell her to get over it,” and that he meant it in a “heartless” and “demeaning” way.3. Crowley testified that Murphy said, “She’s got to get over it,” thus agreeing with Murphy. But he further testified that Wedge got the “gist” of the quote right, and that he was so angered by Murphy’s statement that he went running to Walsh to complain.

  21. Anonymous

    EB…. you know who it isI agree completely with everything you just said. I am wondering if we are not far apart, just have differnt interpretation of who is telling the truth. Please humor me and play along and take this one step at a time.You have set up an excellent starting pointOne question at a timeFirst question. For this question please assume that Crowley never testified that “gist” was right. Just for argument sake pleaseDo you agree that if number 2. is false and reported with malice; even in light of number 1, is that libel. Do we agree on this point?

  22. Dan Kennedy

    EB3: One more observation. In re-reading your comments, it’s clear that you think I have asserted at one time or another that Murphy actually said “Tell her to get over it.” I have never made that assertion; not once, not even in my original Phoenix piece from several years ago. I don’t feel like looking it up, but you should.What I have said, repeatedly, is that Crowley testified that he saw no difference between “Tell her to get over it” and “She’s got to get over it.”I will grant you this. Though Wedge’s error about the victim’s testimony was not relevant to the libel, it was relevant to his credibility. No question about that.

  23. Anonymous

    EB3 herethanks Danwe narrowed down are disagreement. No, it is clear that I am not sure what you believe. I kno what you have said. No need to remind me. Can you answe my questions so I can find out what you believe on top of what you say.I take it you see no difference in “she’s got to get over it” and “tell het to get over it”. Or am i wrong? I see a a difference. The jury was asked is there is a difference. That was one of the 20+ jury questions.Crowley also said he at no time told Wedge that Murphy said ‘tell her to get over it”. D.A. Walsh who was present when Crowley supposedly said this to Wedge testified Crowley did not tell Wedge this. Only ADA Costello said so. However he was wet with bias. And the jury was asked to decide who was being truthful. It is societies view of the offending language as to its harm. Not ada crowley under cross examination who still insisites Wedge got it wrong.It is not about what Crowley thinks, And hr was under cross examination where he also continued to say, also on re-direct, that Murphy did not say it and he never told Wedge he said it. Please answer me this. In your opinion, is ‘tell her to get over it” and fiffernet then ‘she’s got to get over it”If you don’t then we can argue on that point. If you do then we can argue wether Wedge improperly reported it.I am just not sure where u stand dan.You seem to have avouded all my points and questions to you and come back with minor side issue that jury’s and fact finders can easily seperate. Such as the ‘gist’ thing. Crowley, the witness,pining he sees no differnce in two quotes. I see a differnce. many reasonable people do too. ASo didn’t the jury. That doesn’t exonerate Wedge.Plase answer my question Dan. Do you see any differnce in the effect the words ‘she has to get over it’ vs. “tell her to get over it.”?Let’s get to the bottom of this. Today.thanks

  24. Dan Kennedy

    EB3:Narrowing it down? I’ve been saying the same, consistent thing since my Phoenix piece written before the trial ended. (OK, here it is.)I see zero difference between “Tell her to get over it” and “She’s got to get over it” if that’s all I know. I think it’s pretty obvious that “She’s got to get over it” can be said in a compassionate manner, or it can be said in a “heartless” and “demeaning” manner. Crowley testified that he took it to be “insensitive,” and Walsh confirmed that Crowley took it that way.It’s interesting that a Globe editorial published around the same time blasted Murphy for saying that the victim should “get over it,” without even worrying itself over whether that was preceded by “Tell her to” or “She’s got to.”If I haven’t been explicit about this before, EB3, it’s because I thought you had at least done me the courtesy of boning up on what I’ve written about this. Here’s a relevant chunk from the Phoenix piece:”Crowley, in his pretrial deposition, said he found ‘She’s got to get over it’ to be ‘insensitive.’ On Tuesday, Crowley testified that he found Wedge’s reporting on Murphy’s comments to be substantially true.”‘The gist of the quotes in what was said appear to be accurate,’ Crowley testified. ‘I just don’t remember the “tell her to get over it” part.’ His recollection, he explained, was that Murphy had either said ‘She needs to get over it’ or ‘She’s got to get over it.'”Later, District Attorney Paul Walsh testified that Crowley had been upset enough about Murphy’s comments … that Crowley sought Walsh out to complain. As for the difference between ‘Tell her to get over it’ and ‘She’s got to get over it,’ Walsh said: ‘The particular words didn’t make any difference to me…. Mr. Crowley was none too happy about the statement, and neither was I.'”Now, let’s not allow this to devolve into a question of “whom should we believe.” The question is this: Did Wedge believe Crowley and Walsh? If you say no, what is your evidence? If you say yes, then where is the libel?As you know, EB3, negligence, even gross negligence, does not constitute libel against a public official. It was Murphy’s burden to prove that the Herald must have either known or strongly suspected that what it was publishing was false. I say he didn’t.

  25. Anonymous

    EB3 hereok Dan, Then I as see it, you would agree that if we take everything Judge Murphy says is true, he still wouldn’t have a case because there is no difference between what was reported and what he says he said. Therefore no real damages. You need damages to sucessfully sue.I think that is what you are saying.That is an issue for summary judgement. Before trial the court can throw a case out because even if true there is no violation of law and/or no damages. Happens all the time. Didn’t happenn here though.So you disagree with the trial judge,the jury, and the SJC and you belive “tell her to get over it” in a nasty way and “get over it” in a comapssionate way are the same thing.Murphy’s demeanor in Chamber towards a yound ADA is not the same as his demeanor towards a rape victim. You put too much weight in the DAs crying about Murphy. THe always cry about judges demeanor. I cry abourt judges demeanor. Doesn’t allow the jump from a judge upset about a case to saying the victim should be told to ‘get over it”.In your opinion, I think, if you were the judge you would not have let it go to trial. Dismissed on summary judgement.As you say, “Now, let’s not allow this to devolve into a question of “whom should we believe.” Unfortunately Dan, that is what trial courts do.That is what they spent three weeks doing. That is why they are there. They are fact finders. The issue before the court was who is telling the truth. The issues of law are weather the truth is a violation of the law.So Dan the trial was all about the truth. If the truth didn’t matter, as you allege I think, then no trial necessary. So that’s why Wedge’s and Walsh’s and Crowley’s and Costello’s and the Judge and the court officer and the probation officer’s and the clerk’s credibility were all relevant evidence. These were the witnesses. And unfortunately for Wedge,his credibility was torn apart. Sure Wedge could have acted in good faith. That is why you keep your notes, check facts (like victim appearing in court) and other stuff which made Wedge look bad.Dan, I am sorry this is about credibility, but we cannot ignore the fact that the sun will rise tommorrow.That’s what a trial is all about. Don’t you know that? My God!I am also surprised that you were unaware why Wedge’s false reporting about the victim’s testimony was relevant. This is very basic stuff Dan.I suggest on stuff like this you collaberate with a professor from the law school. That would be beneficial for your journalism students so they don’t get caught in the same position Wedge did. I mean if wedge did nothing wrong what can be done in the future to save other journalists from the injustice? Your students may appreciate it.

  26. Dan Kennedy

    EB3: I must have a pretty good argument going here, because you keep distorting my very clear statements about my position on this. You write:“So you disagree with the trial judge,the jury, and the SJC and you belive ‘tell her to get over it’ in a nasty way and ‘get over it’ in a comapssionate way are the same thing.”No. As I have now said over and over and over, I believe “Tell her to get over it” in a nasty way and “She’s got to get over it” in a nasty way are the same thing. Which is what Crowley testified to. And which was what Walsh testified that Crowley told him.I agree with a host of very fine lawyers and some of the best news organizations and journalism-standards associations in the country, which signed on to an amicus brief on the Herald’s behalf. Just in case anyone believes your insinuation that I’m out there alone on this.I doubt there are two people out there still reading this exchange. But I do hope it’s clear that I’ve been absolutely consistent on this point for more than three years now.And where did I ever say that Wedge did nothing wrong? Jesus Christ, EB, read my Phoenix piece! I’m saying I don’t believe he committed libel, especially given that Murphy is a public official. That’s a far, far cry from saying he did nothing wrong.

  27. Lissa Harris

    Dan, I can see why you’re sick of this. Not that it matters much at this point, but I’m glad to see you still fighting the good fight on this one. I find the implication of the Wedge decision–that I can’t in good faith report things that public officials say about other public officials, without risking a multi-million-dollar libel suit–utterly chilling.

  28. Anonymous

    Yes I know the other side’s argument. Written by lawyers for the press who are paid by the insurance companies who burden a good share of the costs and judgments. And the lawyers for the newspapers and trade association funded by the press that pays the insurance premiums and the excess damages and other costs. And of course the Herald’s lawyers paid by the Herald who had to pay the excess on this claim.Nothing wrong with that. That is what lawyers do. I can argue their case if you want me to. My heart wouldn’t be in it. But I could. In my view it is specious, not as specious as the “do you have a better idea” argument in favor of casinos though.In the context of a lobby conference a more likely scenario would be the judge viewing the Commonwealths sentence request as too harsh when considering ALL THE FACTS of the case. The ADA, as they are known to do sometimes, keeps pushing his case and probably adds a little hyperbole. Then the judge lashes out at the ADA. NOT the VICTIM. Big difference! The essential difference. Judges can be very nasty. I have seen it and experienced it. No big deal. The D.A.’s Office saw a lenient judge with a bad attitude. Not one that lashed out at victims. They still wanted to cause him grief but they were pointing out what they saw as legitimate concerns. Such as the judge everyone’s on now who lets sex offenders walk. Lashing out at victims even through messengers, is not the problem they have with him. Wedge didn’t see that. There are so many scenarios that could reasonably have happen that would cause a judge to lash out at the ada or any other attorney when lobby conferencing a case, including a rape case. In criminal cases it is more common with ada s because many times, when considering ALL THE FACTS of a case it is easy for DA to be on high horse. I especially love when they say in a lobby conference , “..well judge it is office policy that we (not look bad in anyway. So we want the electric chair. On everything. Then, if need be, we can lash out at you judge for dismissing or agreeing to this light sentence for this piece of crap case we have and probably cannot prove” So that’s my story Dan. I had no idea you had no idea about the day-to-day-give-and-take between prosecutors, defense attorneys, and judiciary, in our criminal justice system. (there’ that smugness again)I never questioned that they were close to the same thing. But to me, because of that fine little detail hidden beneath all the important facts is the fact that although nasty and lenient a judge can legitimately show a little temper and lash out at an attorney during a lobby conference. Telling a lawyer how to be a lawyer and counsel your client, or victim in this case, about the realities of the case and the law.Not with the intent “your client a goddamn idiot and go tell her I said so.”Lawyers who don’t have a dog in this fight and read the opinion generally come down on Murphy’s side based on this distinction.Wedge changed the entire meaning and context, and let this happen. I sincerely thought you saw the distinction that keeps me from giving Wedge a break on this. I think if I was a reporter I would screw a lot up. 99% of this stuff is legitimate mistakes. I know that. And perhaps Wedge doesn’t understand the distinction. That takes the malice away and no libel. But the Herald should understand it. I am sure they were advised of it by their lawyers. And all they needed to do was run a retraction. But they never did. They stuck by it and brought this kid Wedge down with them. I am now beginning to think Wedge in his mind did do nothing wrong. And the Herald keeps telling him he did nothing wrong. Purcell hung him out there as the star witness. How could he lose and it will sell more newspapers? Is Wedge hirable outside the Herald? Not rhetorical. Just wondering? Lood at as insurance risk.Sorry Dan, last analogy below. Promise. What wedge did was far from as obvious as this analogy but to practicing courthouse trial attorneys, judges, and some staff, it was a clear distinction. Suppose Dad and teenage son home alone for weekend. Mom away. She’s a local newscaster. Mom comes home. House is trashed. Real bad. Enough to make her go over the top. Dad had 25 hour poker party and so he would know where teenage son is at all times he let them hang out in basement. At anytime over 48 hours there 7 to 18 kids there. Bad Idea.Mom Freaks like never before. And during tirade she says, to both, “WTF, are you insane. I don’t know who to kill first, you or him? You are lucky there isn’t a clean knife to be found or I’d stab you both.Next day Herald reports “Family Lucky to be Alive as Ballistic Mom Can’t Find Knife to Kill Them.” Yeah she said it. It is true. But there is a responsibility of newspaper to put it into context and not let everyone believe mom is violent and dangerous.You don’t have to show context, but you can’t mislead to suggest a different set of facts. That is what the Herald did. In my opinion.

  29. Anonymous

    EB3 here.Lissa Harris,you still can “in good faith report things that public officials say about other public officials, without risking a multi-million-dollar libel suit–utterly chilling.” You absolutely can. If you are a professional and do what Dan kennedy teaches you will have no problem.A professional will protect herself with a source because you cannot trust a source to testify truthfully if need be.. That would be a reasonable professional rule of thuumb, don’t you think lissa? If push came to shove your source would deny it? When it is all said and done the jury will decide who to believe. You or your source.So, Take notes. Save notes. Get a second source to back you up. Two off the records are good. Wedge had just one. Crowley. Only person to tell him that he was there when Murphy said it. Get back up source. In this case there were at least four others present when Murphy supposedly said this.And understand the context. Talk to people in the day to day activities of what you are reporting on. Get the context of the story within the culture and climate of the world it exists The more serious the charge the more covering your ass you do.Wedge made a very serious charge and left himself wide open.You do that, you’ll be fine.Oh. One more thing. The most improtant.GET INSURASNCE!!

  30. Anonymous

    EB3 herelast time Dan, I promise.Lisa Harris is concerned that as a journalist this case has a chilling effect.I suggest that as a journalism professor your students should be no more afraid of happening to them what happened to Wedge as driving students should be afraid of what happens to a drunk driver killed in a car accident.If they obey the rules and use their heads they should have no problem.Wedge was the drunk driver whether he knew it or not. And Herald gave him the keys.

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