Author: Dan Kennedy

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.

Boston Herald publisher Pat Purcell on the Supreme Judicial Court’s decision to uphold a $2.1 million libel award against his paper:

We are disappointed with the Supreme Judicial Court’s relentlessly one-sided view of Dave Wedge’s reporting on a public controversy within the judicial system, and are unwavering in our complete confidence in Wedge’s journalistic skills.

In one of his threatening letters to me, Judge [Ernest] Murphy correctly predicted the Herald had “zero chance” that his colleagues on the bench would side with the Herald rather than one of their own. Wedge accurately reported what his longstanding sources told him and no shred of evidence exists, as Justice [John] Greaney alleged in his opinion, that Wedge altered the quotation provided by his trusted sources.

While we are deeply troubled by the SJC’s decision, it will in no way affect our newsgathering operation and we will continue to bring readers thorough and relevant enterprise stories and public criticism of judges.

Dave Wedge’s statement:

I vehemently disagree with the SJC’s decision. As I have since the beginning of this case, I continue to firmly stand behind my reporting on these stories. Any insinuation by anyone, including the SJC, that anything in any of the stories on Judge Murphy was fabricated is completely reckless, irresponsible and untrue and is not borne out by the facts of the case.

Quick comment: Purcell goes too far. Wedge had one source, not “sources,” and that source, former prosecutor David Crowley, testified at the trial that he believed Murphy had said “She’s got to get over it,” not “Tell her to get over it.” Greaney made much of that difference in his opinion.

However, as I’ve said repeatedly, I don’t think Wedge fabricated anything, Greaney’s opinion notwithstanding.

The Boston Herald’s reporting on Superior Court Judge Ernest Murphy may have been egregious, but it was hardly the only news outlet that ran stories on Murphy’s perceived leniency.

Dave Wedge and Jules Crittenden’s first Herald story on Murphy, “Murphy’s Law,” appeared on Feb. 13, 2002. (Crittenden’s contribution was not an issue in Murphy’s libel suit.)

Here are a few examples of what others were saying before, during and after the Herald weighed in.

From the Associated Press, Feb. 9, 2002:

A Superior Court judge has come under fire from prosecutors after he released three accused rapists without bail, and gave probation to a man who admitted raping a 14-year-old girl.

Judge Ernest B. Murphy, who began his rotation in New Bedford this week, placed Dean McSweeney on eight years’ probation Tuesday, after McSweeney admitted to twice raping his friend’s 14-year-old sister and holding up a Mansfield motel. Prosecutors had recommended a 7- to 10-year sentence.

“Rapes, robberies, bails, it doesn’t matter,” Bristol District Attorney Paul F. Walsh told the The Standard Times of New Bedford. “He doesn’t care. He’s gutless.”

Murphy also released without bail a Fall River man charged with raping a young girl, and overturned bail rulings allowing two other accused rapists, including one man accused of raping a 13-year-old girl at gunpoint, on personal recognizance.

From the Boston Globe, Feb. 11, 2002:

Prosecutors in New Bedford are fuming over the rulings of a judge who recently released without bail three alleged rapists, one of whom had eluded police for more than a year. Superior Court Judge Ernest B. Murphy also gave a probation sentence to a man who pleaded guilty to raping a 14-year-old girl, said Bristol County Assistant District Attorney Gerald FitzGerald….

“The word is out,” FitzGerald said. “When Judge Murphy’s on the bench, the gates are open. The drawbridge is down.”

In fact, FitzGerald said, “If he knew that Ernest Murphy was sitting on the bench, it would be enough to bring Whitey [Bulger] back home.”

From The Standard-Times, Feb. 12, 2002:

NEW BEDFORD — A man accused of raping a 15-year-old New Bedford girl was released without bail yesterday, the fourth such ruling by Superior Court Judge Ernest B. Murphy in seven days.

A District Court judge had ordered Lance Bovill, 28, of Mattapan held on $75,000 bail after allegedly raping a girl he met on a local telephone party line.

Judge Murphy, who was blasted by prosecutor Walter J. Shea last week for being “the worst person in a black robe I have ever seen,” overturned that bail, saying he believed the man would return for trial.

“Whether or not she was really raped, or whether she made it all up is not for me to decide,” the judge said yesterday. “I’m ruling on the bail statute, and I’m familiar with the bail statute.”

From the Associated Press, Feb. 14, 2002:

He [Murphy] created a furor among prosecutors and victim’s rights advocates earlier this week when he released on bail a teen-ager accused of planning a Columbine-style rampage at New Bedford High School.

“Clearly, there’s a pattern here,” [Bristol County District Attorney Paul] Walsh said. “Everywhere I go, people are shaking their heads at these decisions.

“The compassion always seems to come down on the side of the defendant,” he said. “We’re not here just to hope that defendants cure their ways … there are some people getting hurt out there and punishment has to be factored in.”

Mansfield Police Chief Arthur O’Neill has called for Murphy’s resignation. Several relatives of victims whose cases were heard by Murphy said they plan to file complaints against him with acting Gov. Jane Swift and the Commission on Judicial Conduct, which investigates allegations of misconduct against state judges.

From the Associated Press, Feb. 18, 2002:

A 14-year-old rape victim said on Monday that she “will never be free” after a judge sentenced her attacker to eight years probation and allowed him walk out of the courtroom.

The sentences for Dean McSweeney and other accused rapists have become the center of a controversy over New Bedford Superior Court Judge Ernest B. Murphy, whose rulings have sparked outrage from prosecutors.

“Other victims are going through the same thing I am, because Judge Murphy chose to free their attackers, too,” the girl said at her home not far from where McSweeney lives. “Judge Murphy made me feel like I was guilty, and that Dean was the victim. Dean walked out of the courtroom a free man. I will never be free.”

From The Standard-Times, Feb. 19, 2002:

MANSFIELD — A 14-year-old rape victim said yesterday that she “will never be free” after a judge sentenced her attacker to eight years probation and allowed him walk out of the courtroom.

The sentences for Dean McSweeney and other accused rapists have become the center of a controversy over New Bedford Superior Court Judge Ernest B. Murphy, whose rulings have sparked outrage from prosecutors.

“Other victims are going through the same thing I am, because Judge Murphy chose to free their attackers, too,” the girl said at her home not far from where McSweeney lives.

“Judge Murphy made me feel like I was guilty, and that Dean was the victim. Dean walked out of the courtroom a free man. I will never be free.”

From the Boston Globe, Feb. 19, 2002:

A 14-year-old rape victim yesterday said a controversial judge’s decision to spare her attacker prison time and release him to his home within a mile of her Mansfield house has left her fearing for her safety….

“I will have to look over my shoulder for the rest of my life,” she read from a prepared statement. “I looked to Judge Murphy to help and support me to get over this by putting Dean McSweeney behind bars where he belonged. Instead, he’s right down the street…. All because Judge Murphy felt more sympathy for Dean than he did for me.”

The next excerpt — from a Globe editorial published on Feb. 22, 2002 — is particularly interesting. Note that the writer concludes that Murphy’s alleged “get over it” quote is demeaning, without regard for whether Murphy said “She’s got to get over it” or “Tell her to get over it.” Also, the writer attributes the quote to “prosecutors.” Did someone at the Globe get that quote from Walsh’s office? Or did the Globe simply pick this up from the Herald? Anyway, here it is:

In recent weeks Murphy released four accused rapists without bail after more-experienced district court judges had set significant bail. His decision to give a probationary sentence to a man who admitted to raping a 14-year-old Mansfield girl has created a barrage of criticism related both to Murphy’s sentencing judgment and judicial temperament. According to prosecutors, Murphy stated that the victim should “get over it” — as if rape were somehow one of the bumps on the road of life.

Now, I’m not saying that these excerpts are no different from what the Herald reported. To my knowledge, no one has questioned the accuracy of any of these stories. (On the other hand, if Murphy never said the teenage victim should “get over it” in a demeaning way, then the Globe editorial is wrong on precisely the point on which the Herald lost.) The Herald’s reporting, by contrast, was plagued with errors.

But I can’t help but think that Murphy, under intense pressure, lashed out at the Herald not because he had been wounded so much more grievously than he had by the other news outlets, but because it set off an enormous public outcry.

The state’s Supreme Judicial Court, in a strongly worded opinion, has upheld a $2.1 million libel verdict against the Boston Herald. In March 2005 the Herald lost a suit brought by Superior Court Judge Ernest Murphy, who’d been characterized by the Herald in 2002 as a “wrist-slapping judge” who had “heartlessly demeaned” victims of crime — most notoriously, by allegedly saying of a teenage rape victim, “She can’t go through life as a victim. She’s [fourteen]. She got raped. Tell her to get over it.”

Massachusetts Lawyers Weekly reports the decision here, and reproduces the text of Justice John Greaney’s decision here.

Greaney’s view of Herald reporter Dave Wedge is pretty devastating. Under the U.S. Supreme Court’s 1964 Times v. Sullivan decision, Murphy had to prove not only that what Wedge reported about him was false and defamatory, but that he had acted with “actual malice” — that is, that he knew what he was reporting was false, or that he showed “reckless disregard” for whether his reporting was true or false. Greaney writes that Murphy met that standard:

Wedge’s lack of candor on the witness stand strongly supports the inference that he deliberately attempted to mislead the jury. Although disbelief in Wedge’s testimony alone is not sufficient to sustain a verdict for the plaintiff, we are satisfied that the evidence we discuss below would warrant a jury’s finding of actual malice by clear and convincing evidence. There is an abundance of evidence that, taken cumulatively, provides clear and convincing proof that the defendants either knew that the published statements found by the jury to be libelous were untrue, or that they published them in reckless disregard of their probable falsity.

I’ve written before that I don’t think Wedge committed “actual malice.” Though his reporting was sensationalistic and riddled with errors, I’m convinced he believes to this day that Murphy said the teenage rape victim should “get over it,” and that he believes Murphy said it in — well, a heartless, demeaning manner. Wedge’s one eyewitness source, former prosecutor David Crowley, testified during the trial that Wedge had captured the “gist” of Murphy’s meaning, even though it was more likely Murphy had said “She’s got to get over it” rather than “Tell her to get over it.”

But, at least according to Greaney, that’s not relevant — if Wedge got the quote wrong, then it’s up to the jury to decide whether he got the “gist” of Murphy’s meaning correct. Greaney writes:

The defendants assert in their brief that, “[h]aving noted that Crowley testified that the ‘gist’ of the ‘get over it’ statement was accurately reported in the Herald … the trial court needed to go no further.” This assertion is a misstatement of the law. A statement is false, for purposes of libel, if there has been a “material change in the meaning conveyed by the statement.” This determination is one for the jury, and not for a witness, to make.

Also interesting is Greaney’s application of Harte-Hanks v. Connaughton (1989), a U.S. Supreme Court decision in which a libel verdict was upheld because a newspaper’s editors were found to have deliberately avoided interviewing a source and considering other evidence that might have cast doubt on a story in which a local candidate for office had been accused of corruption. According to the decision, such a failure constituted “reckless disregard,” since it showed that the paper’s editors had harbored serious doubts as to whether what they were about to publish was true.

Wedge failed to interview two defense lawyers who were present when Crowley supposedly heard Murphy say that the victim should “get over it.” At the trial, both lawyers testified that they never heard Murphy say anything remotely like what Wedge had reported. But did Wedge deliberately avoid interviewing them, which would constitute “reckless disregard”? Or did he simply not bother, which would not? Greaney:

When substantial doubts have been raised as to the veracity of a reporter’s information, the purposeful failure to investigate known witnesses may be proof of actual malice. The evidence, clearly and convincingly, supports the inference that Wedge included the “tell her” quotation, which not one percipient witness had confirmed, to convey the impression (false) of callousness. The evidence equally clearly and convincingly supports the determination that Wedge purposely did not seek to interview any of the percipient witnesses who would have contradicted the alleged facts in his article.

To me, the bottom line is that Wedge allowed himself to be used as a conduit for the Bristol County district attorney’s office, whose officials were out to get Murphy because they believed — genuinely — that he was too lenient. It’s the sort of spoon-fed, prosecutor-driven journalism that news organizations practice all the time, although usually with greater accuracy than Wedge managed that day. But it certainly doesn’t mean Wedge believed his sources were lying to him. Quite the opposite, I think. From Wedge’s point of view, what could be more natural than interviewing prosecutors and reporting what they’d said?

I hope Herald publisher Pat Purcell appeals the SJC’s decision in the federal courts. Absent deliberate falsity or something close to it, harsh reporting on how a public official performs his official duties should never lead to a libel verdict, no matter how flawed that reporting may be. With all due respect to Justice Greaney, I think Wedge believed he got the story right at the time. Under the “actual malice” standard, that should be sufficient.

Update: David Kravitz, a lawyer, writes about the decision at Blue Mass Group, but his response to a comment of mine is especially valuable. Kravitz thinks Greaney wrote with an eye toward keeping this out of the U.S. Supreme Court (as Kravitz points out, the only federal court that can take an SJC appeal) by rooting his opinion as closely as possible in the facts of the case, while steering clear of anything that would suggest he was questioning precedents or theory.