Massachusetts Supreme Court Will Not Reconsider $2 Million Libel Verdict Awarded to State Trial Judge; Judicial Commission, Newspaper File Ethics Complaints Against Judge

The Massachusetts Supreme Judicial Court has refused to reconsider its ruling against the Boston Herald that upheld an award of more than $2 million to a defamed judge.

In a June 4, 2007 order, the court refused to reconsider a unanimous ruling in Murphy v. Boston Herald, Inc., 865 N.E.2d 746 (Mass. 2007), upholding the $2.01 million award for Massachusetts Superior Court Judge Ernest B. Murphy. The court corrected three factual errors in its opinion, but affirmed that the “substantial factual and legal premises underpinning” the opinion remained correct.

The case, originally decided May 7, 2007 arose from a series of stories published by the Boston Herald in 2002 that were critical of Massachusetts Superior Court Judge Ernest B. Murphy for “coddling” criminals and “heartlessly demean[ing]” victims. It is one of a number of successful libel suits filed recently by judges against newspapers. (See “Judges Sue Newspapers for Libel” in the Winter 2007 issue of the Silha Bulletin.)

David Yas, publisher of Massachusetts Lawyers Weekly, was quoted in a May 8 Boston Herald story, saying that he hoped the ruling would not “chill” reporting. Massachusetts reporters should continue to aggressively cover judges because they are not elected by the public, he said.

The most controversial statement first appeared in a Feb. 13, 2002 story headlined “Murphy’s Law.” Reporter David Wedge, citing anonymous sources, quoted Murphy as saying of a 14-year-old rape victim, “She can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it.” The sources were later revealed to be prosecutors with second-hand knowledge of Murphy’s alleged statement whom the jury disbelieved “with absolute certainty,” according to the court order denying a rehearing. Murphy actually said “[s]he’s got to get on with her life. She’s got to get over it,” and suggested counseling for the victim, the court found. The ruling said the actual remarks demonstrate Murphy’s compassion for the victim rather than the callous disregard portrayed in the story.

The court further held that Murphy had shown by “clear and convincing” evidence that the statements were published with “actual malice.” Actual malice requires that the reporter, Wedge, knew the statements were false or acted with “reckless disregard” as to their probable falsity. The court relied on a variety of factors in upholding the jury’s finding of actual malice, including Wedge’s willingness to accept second-hand information from anonymous sources, inconsistencies in his testimony, destruction of his notes, and statements he made during a March 7, 2002 appearance on “The O’Reilly Factor.”

The court also noted that Patrick J. Purcell, publisher of the Herald, admitted that he knew the “[t]ell her to get over it” quote would create a media frenzy. “[A] ‘media frenzy’ was, in fact, exactly what the defendants intended,” Justice John M. Greaney wrote in his opinion for the court.

In its petition for rehearing, the Herald alleged that the court had misquoted the testimony of David Crowley, a prosecutor who claimed to have heard Murphy’s controversial statement. Crowley later shared the information with two senior lawyers in the district attorney’s office who became the sources for the Feb. 13, 2002 story.

The Herald argued that the opinion portrayed Crowley’s testimony in a light sympathetic to the judge, when in fact Crowley testified that he believed Murphy’s comments were insensitive. “Thus, when the [r]uling states that the ‘get over it’ comment in the Herald was false because it would lead one to believe that Murphy was ‘indifferent’ and perhaps ‘even callous’ to crime victims, [citation omitted] it errs because indifference is precisely Crowley’s point,” the petition said. The Herald called the factual error “fundamental to the outcome” of the case in its petition, but the court dismissed the mistake, stating the “substantial factual and legal premises underpinning” the decision remain correct.

The newspaper also suggested in the petition that Greaney, the justice who wrote the opinion for the court, was biased against judicial reporters prior to considering the case. He and an appeals court judge wrote an Op-Ed piece for the Herald that appeared on July 16, 1997 suggesting that judicial reporters should take a more careful approach to criticizing judges because of their importance to the criminal justice system.

The opinion piece responded to a then-recent article assailing the leniency of a district judge who had released an accused rapist on $1,000 bail. In it, Greaney also praised the importance of judges as “referees between the government and persons accused.” As a solution, he suggested “[t]he press could start by examining judicial performance with a lens rather than a hand grenade.”

The court rejected the allegation of bias. “This accusation is not unexpected, but it is completely unsupported,” the court wrote in its order denying a rehearing. “It, undoubtedly, will become an argument in the defendants’ petition for certiorari to the Supreme Court of the United States.”

The Herald declined to comment on whether it would appeal to the U.S. Supreme Court in a May 8 Boston Globe article. The Globe reported on June 12 that the Herald had paid Murphy $3.4 million – the $2.01 million judgment plus interest.

Following the court’s ruling in May, Murphy expressed satisfaction with the outcome of the case. “We’re not in a position as judges to really do much when we’re assailed and I think it kind of sent a message . . . that the independence of the judiciary is a very important consideration for any media in connection with any reporting on a judge,” Murphy said in a May 8 Boston Herald story.

Purcell, the Herald publisher, said he continued to stand behind Wedge’s reporting. “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,” he said in the Herald story.

The Associated Press (AP) reported July 10 that the Massachusetts Commission on Judicial Conduct filed ethics charges against Murphy related to settlement talks conducted with the Herald. According to the story, Murphy sent a note, hand-written on court stationery, to Purcell demanding a meeting and a check for $3.4 million. A single page postscript warned Purcell that disclosing the letter would be “a BIG mistake.”

The Herald also filed an ethics complaint. If disciplined, Murphy could face a variety of sanctions including a public or private reprimand, a fine, limitations on his judge’s duties, discipline as an attorney, and retirement.

In a statement quoted by the AP Purcell said, “[i]f the publisher of one of the region’s major newspapers can be threatened by a member of the judiciary in this way, then who is safe?”

Murphy, apparently upset that the Herald published excerpts of the letters, also issued a written statement calling their release by the newspaper “a breach of a personal agreement” between Purcell and him. He called his use of official letterhead an “inadvertent use of judicial stationery in a private, privileged and confidential communication,” the AP reported.

– Michael Schoepf, Silha Research Assistant

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