Judge Dread

On Monday afternoon — a few hours after the Massachusetts Supreme Judicial Court (SJC) upheld his 2005 triumph in a libel case against the Boston Herald — Superior Court judge Ernest Murphy took the microphone at a celebratory press conference and waxed dramatic about the ruling. “I believe that this decision is a clarion call for the media to understand that the independence of the judiciary is fundamental to the democratic process,” Murphy announced. The press, he continued, should be “sensitive” when it covers the courts.

A few minutes later, Suffolk University law professor Michael Avery, who’d argued Murphy’s case before the SJC, offered a decidedly different gloss. “The decision as made in this case,” Avery said, “should cause no alarm to anybody in the media who’s concerned about his or her ability to engage in vigorous criticism of the government.”

So, which is it?

First, a quick refresher. Murphy’s case against the Herald centered on two articles the tabloid published on February 13 and 14, 2002, that depicted Murphy as callously indifferent to victims — a characterization the Herald wasn’t the first to make. Most important, the February 13 article — a front-page story — introduced a Murphy quote, attributed to “several courthouse sources,” and allegedly spoken during a confrontation with prosecutors about his sentencing practices, that involved a young rape victim: “She can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it.”

The original ruling in Murphy’s favor, and the SJC’s decision this week, hinged on two main points: first, evidence that the quotation and Herald reporter Dave Wedge’s description of the context in which it was uttered were inaccurate; and second, Wedge’s failure to sufficiently check the quote prior to publication.

Back to the question of what this case means for the press. Like Murphy, the 15 news organizations that together filed an amicus-curiae brief on the Herald’s behalf last year suggested that profound journalistic principles were at stake — although, of course, they and Murphy wanted opposite outcomes. In their brief, these organizations (including the Associated Press and the Washington Post, but not the Boston Globe or its corporate parent, the New York Times Company) said the SJC could “ensure that the Commonwealth’s historic tradition of protecting speech of the judiciary is passed on to the next generation.”

The implication was that an unfavorable outcome could have a catastrophic effect. But Jonathan Albano, the Bingham McCutchen attorney who co-authored the amicus brief in question, tells the Phoenix that the SJC’s ruling is actually a mixed bag when it comes to freedom of the press.

On the one hand, Albano says, the court’s opinion, which was written by Justice John Greaney, emphatically reaffirmed the press’s established protections when it comes to reporting on public figures, including the “actual malice” standard. (“Actual malice” means that public figures like Murphy can’t win libel judgments simply for being subjected to false or defamatory coverage; they also need to show that the material in question was published with knowledge of or reckless indifference to its falsity.)

But Albano also claims that the criteria the SJC cited in condemning Wedge’s reportage are troublingly expansive. In arguing that Wedge should have sought additional verification, Albano notes, Wedge’s subjective reaction to Murphy’s alleged comments (he found them “outrageous”) is cited in the court’s decision. So is the fact that the person who conveyed them to Wedge, Bristol County assistant district attorney Gerald FitzGerald, initially refused to name David Crowley as the prosecutor who purportedly heard them firsthand. And so is the fact that then-Bristol County DA Paul Walsh (FitzGerald and Crowley’s boss) was known as a vocal Murphy critic.

According to Albano, this argument means reporters could have their own frame of mind — and the reluctance of sources to identify their sources — used against them in future libel cases. And it offers a precedent for viewing leads from partisan sources (from Democrats dishing dirt on Republicans, say) as inherently suspect. “You’ve got some very talented lawyers out there,” says Albano, “who are going to be looking at this decision, and saying, ‘What can I take from it?’ ”

Wedge’s missteps

Visions of opportunistic attorneys aside, though, the particulars of the case — or, to put it more harshly, the Keystone Kops nature of Wedge’s role — make it hard to muster much concern.

In its ruling this week, the SJC accused Wedge of inventing the confrontation where Murphy allegedly made his offensive remarks. Wedge promptly rejected this claim in a prepared statement: “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.” (Herald publisher Pat Purcell also issued a defiant statement on Monday; a Herald spokesperson declined further comment on the case.)

Alleged fabrication aside, the SJC’s ruling highlights plenty of wince-inducing missteps on Wedge’s part. For example, he wrote that the 14-year-old rape victim had taken the stand in Murphy’s courtroom and “tearfully” discussed the rape’s impact on her life; in fact, a prosecutor read a statement from the victim to the court — something the Herald got right in another item that ran that very same day.

In addition, Wedge’s deposition testimony contradicted his trial-testimony account of when and how he attempted to verify the quote in question. For example, Wedge claimed at the trial that he’d tried to speak with and send a note to Murphy before the first story ran in the Herald, but was rebuffed by courthouse personnel. But in his deposition, Wedge was unable to offer details that would back up this account. “[By] the end of Wedge’s testimony,” Greaney said, “his credibility on any material factual point at issue was in tatters.”

Every reporter — including this one — has made embarrassing mistakes we’d like to undo. But Wedge apparently made so many, of such a damning nature, that it’s hard to muster the empathy these cases usually create. And this, in turn, makes it unlikely that many reporters or publications will comport themselves differently in the wake of the SJC’s decision.

Costs of the loss
The impact on the Herald is another matter. On Monday, one of Murphy’s lawyers said that, adjusted for interest, the $2 million settlement Murphy received in 2005 has swelled to $3.4 million. Estimates of the Herald’s libel-insurance cap range from $10 million to $15 million, but the paper’s deductible is unknown. (So is whether the paper’s insurer would need to grant permission for a US Supreme Court appeal.) Whatever that deductible is, though, it’s hard to imagine any payout to Murphy prompting new cutbacks at Herald Square, simply because previous cuts already have the paper operating with a skeleton crew.

Then there’s the question of the Herald’s clout. Despite thin staffing, declining circulation, and an unabashed tabloid mentality, the paper still manages to break stories and, occasionally, to set the local news agenda. If the Murphy debacle becomes a sign of broader institutional decline, however, future dime-droppers might think about taking their scoops elsewhere, lest they be caught up in legal headaches. And Boston’s political elite could become less responsive and less deferential to the paper. Neither outcome would bode well.

To be fair, the Murphy debacle occurred before current editor Kevin Convey took the reins. (In 2002, Andy Costello was the Herald’s editor and Convey was working at Community Newspaper Company, which Purcell then owned.) Over the next few months, we’ll see what price Convey has to pay for sins that occurred under his predecessor’s regime.

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