February 2006

Judge’s Defamation Suit Continues In Massachusetts

Holland & Knight Newsletter
Gordon P. Katz

Libel trials rarely occur. Libel trials brought by public officials are even more infrequent. Libel judgments in favor of a public official plaintiff are cause to take particular notice.

In February 2005, a suburban Boston jury sitting in Massachusetts Superior Court returned a multi-million dollar libel verdict in favor of Massachusetts Superior Court Judge Ernest Murphy against the Boston Herald. The case stemmed from a February 24, 2002 article which, in essence, claimed that Murphy was too lenient on criminal defendants and insensitive to crime victims. Among other things, the Herald article stated that “the judge reportedly told a prosecutor: ‘She (a 14 year old rape victim) can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it.’”

This statement and a variety of others about Murphy (such as that he harassed female law clerks and that he had been asked to attend “rookie judge school”) formed the basis of his defamation complaint. After a three-week trial in February 2005, the jury returned a $2.1 million verdict in Murphy’s favor.

The trial court in October denied the Herald’s motion for judgment notwithstanding the verdict, entry of a remitter, and for a new trial. A central portion of the motion was the Herald’s argument that Judge Murphy had failed to show actual malice – the elevated level of fault that requires a public official to prove the media knew the information was false or published while entertaining substantial doubts as to its truth – with respect to the “Tell her to get over it” quotation. The trial judge rejected this argument, among other reasons, because the reporter had discarded his notes; the judge ruled that jurors had been entitled to infer that this disposal was calculated to conceal inaccuracies in his reporting. The trial court buttressed its conclusion on the fact that the Herald had established no code of ethics or set of professional standards which its reporters were expected to observe in the research and writing of news articles. These decisional points will no doubt be part of the Herald’s appeal.

In late November 2005, Judge Murphy fired another round at the Herald. He filed a motion asking for the newspaper to be forced to post security of over $3 million (the $2.1 million judgment, plus statutory 12% interest) during the pendency of any appeal. He argued that the Herald’s circulation and profits, like those of other metropolitan dailies, are declining, and that the Herald will be unlikely to satisfy the final judgment after appeal. To date, the court has not acted on the motion.

In late December, the Herald fought back in a press conference, releasing a letter from Judge Murphy on Superior Court stationery. Writing immediately after the jury’s verdict in February, Murphy made a demand of the newspaper in anticipation of a meeting the newspaper had discussed holding: “You will bring to [the proposed] meeting a cashier’s check, payable to me, in the sum of $3,260,000. No check, no meeting. You will give me that check and I shall put it in my pocket.” In a postscript, Murphy stated that, “I ask that if you conclude you have no interest in the meeting I propose, I ask that you throw the letter away and pretend it never was received. I am not copying this letter to anyone. I consider it private settlement discussion between principals to a transaction.”

One day after the press conference, Judge Murphy apologized for writing the letter on Superior Court stationery. The newspaper accused him of violating the code of judicial conduct by writing on court letterhead, and Murphy responded by accusing the newspaper of violating the confidentiality of ongoing settlement discussions. The Herald moved again in late December for reversal of the jury verdict based on Murphy’s alleged misconduct in writing the letter. This motion, too, was denied on January 19, 2006.

The proceedings will continue in late January 2006, when the court rules on Judge Murphy’s motion to attach Herald assets – a motion likely to be denied in view of the apparent availability of sufficient insurance. The appeal is not likely to be decided until 2007.

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