E-Mail This Article to a Friend Absence of malice The Herald’s coverage of Judge Ernest Murphy was flawed and inflammatory. But that doesn’t mean he was libeled. BY DAN KENNEDY

IT’S NOT HARD to feel sympathetic toward Superior Court judge Ernest Murphy. With the exception of his emotional testimony last week, Murphy has been a picture of stoicism during his high-profile libel trial against the Boston Herald. He arrives each day in the 12th-floor courtroom above Post Office Square, where this drama has been playing out since January 19, sometimes sitting ramrod-straight, sometimes leaning forward, his eyes fixed in front of him, occasionally wrapping his arm around his wife, Mary Keenan.

Murphy has portrayed himself as a man wronged by the media — a caring person who, according to his lawsuit, has been falsely described as a "wrist-slapping" judge who had "heartlessly demeaned" victims of crime, most notably a 14-year-old girl who had been raped and a 79-year-old woman who’d been robbed. That portrayal three years ago, he testified, damaged his reputation and made him and his family the targets of mockery, ridicule, and threats of violence. "It’s hard to articulate this. I’ve noticed a change. I can only say that I feel radioactive — people react to me differently," he said during his time on the witness stand. He added, "I don’t have the same relationship with anyone as I did before this happened."

But his libel suit against the Herald is neither as simple nor as compelling as Murphy and his lawyer, Howard Cooper, would have you believe.

For one thing, Murphy is a public official, which makes all the difference in a libel case. The US Supreme Court, in its landmark 1964 New York Times v. Sullivan decision, raised the bar to an extraordinarily high level for any such person to sue for libel successfully. The court ruled that a public official must prove "actual malice" — a legal term that means Murphy must convince the 12-member jury that the Herald and its lead reporter, Dave Wedge, went to press with articles that they knew were false, or that they acted with "reckless disregard" for whether those articles were true or false. Such a standard, Justice William Brennan wrote in the Times decision, is necessary to ensure that "debate on public issues" remains "uninhibited, robust, and wide-open," even to the point of including "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

For another thing, Murphy will not be able to show that the Herald demonstrated reckless disregard for the truth unless he can first convince the jury that the articles were, in fact, false. And as the trial enters its fourth week, with a verdict to come possibly within several days after the Phoenix goes to press, it is not at all clear that Murphy has succeeded in doing that.

Murphy, who allegedly made his remarks in a private conference with lawyers at New Bedford Superior Court, denies ever having spoken demeaningly of the rape victim, and insists that his comments about the robbery victim — "I don’t care if she’s 109" — were twisted out of context. There’s little doubt that he’s telling the truth as best as he can recall it; his anguish appears genuine. But Wedge, in his own testimony, said that he got his information from three sources in the Bristol County district attorney’s office, including the top elected official in that office, District Attorney Paul Walsh. Wedge also said that one of his sources, a then-prosecutor named David Crowley, was a firsthand witness to Murphy’s remarks. (In testimony this past Tuesday, Crowley partly confirmed Wedge’s account.) Finally, Wedge said that he made two attempts to interview Murphy — once before publication, once after — and that he was rebuffed on both occasions. (Murphy testified that he was never told about Wedge’s first attempt, which Wedge said he relayed through a court officer.) In particular, Wedge described the Bristol DA’s office as a reliable source of information on which he had depended many times during the course of his career. "I trust people," Wedge said. "And I report what they tell me to be the truth. That’s what I do."

By no means was Wedge’s reporting entirely accurate. In his initial report, on February 13, 2002, headlined MURPHY’S LAW, Wedge wrote that Murphy had said of the 14-year-old rape victim during a conference with lawyers, "Tell her to get over it." The weight of the evidence suggests that Murphy actually said, "She’s got to get over it," and Wedge himself subsequently said he’s not sure which it was. In a follow-up story on February 14, Wedge wrote, "The victim took the stand and tearfully told the judge how the rape has affected her." But Wedge’s sources were wrong: a prosecutor read the girl’s statement at the sentencing hearing while the victim said nothing, a detail that Herald columnist Margery Eagan — who’s also named in the suit — got right in the same day’s edition. Overall, the trial has revealed Wedge’s reporting on Murphy to be an anonymous (the names of Wedge’s informants emerged only during the course of pretrial discovery), thinly sourced conduit for prosecutors to whack the judge for what they believed were overly lenient sentencing and bail decisions. Of Wedge’s sources, only Crowley was a direct witness to Murphy’s alleged remarks. Nor did Wedge, by his own testimony, attempt to contact either of two defense lawyers who were present; both have testified that they did not hear Murphy say anything about the 14-year-old rape victim.