E-Mail This Article to a Friend Absence of malice (continued)

WHAT HAS gone unmentioned in the Herald trial is how commonplace a story like Wedge’s is. The media absolutely feed off leaks from prosecutors. Usually those leaks are about some poor bastard they’re trying to convict. Sometimes they’re about — well, Bill Clinton, to name one prominent example, or former Los Alamos scientist Wen Ho Lee, falsely labeled a nuclear spy, to name another. Attempts by prosecutors to intimidate judges by threatening to go the media are common as well. In one instance that is a matter of public record, Dominick Russo, a now-retired judge who presided in East Boston District Court, has said that one of former Suffolk County district attorney Ralph Martin’s prosecutors threatened to do just that if Russo declined to rule in the prosecution’s favor in a particular case. Russo said that he complained to Martin’s office, and the prosecutor apologized before formal ethics charges could be lodged against him. Thus the only truly unusual part of the Murphy v. Herald case is that, this time, the judge decided to fight back against such tactics by suing for libel.

One of the things Howard Cooper must show in convincing jurors that Dave Wedge acted with reckless disregard for whether his story was true or false was that Wedge knew he shouldn’t have relied on Paul Walsh and his associates for a story about Judge Murphy — that is, that Wedge knew Walsh was out to get Murphy, and that it was therefore "reckless" of Wedge not to check out his information more thoroughly. But Wedge testified that he had dealt with Walsh’s office for years — not just as a Herald reporter since 1999, but as a reporter for the Attleboro Sun Chronicle for two years before that, and with the Taunton Gazette four years previously. It was Assistant District Attorney Gerald FitzGerald, Wedge testified, who first tipped him off to Murphy’s allegedly insensitive comments. And what was Wedge’s relationship with FitzGerald? "I’ve relied on Mr. FitzGerald dozens and dozens of times in my career, and I’ve never known him to be wrong," Wedge testified. For that matter, former Herald editor Andy Costello, who was in charge of the paper during the Murphy coverage, testified this past Tuesday that he is a personal friend of FitzGerald’s.

Far from having it in for the judge, Wedge was actually the eager recipient of prosecutorial dirt from sources he knew and trusted. It’s hard to believe that he ever doubted what he was being told. And as Jason Robards explains to Dustin Hoffman and Robert Redford in All the President’s Men, the Watergate-era journoflick, We don’t report the truth. We report what people tell us. This isn’t great journalism. In fact, it’s lousy journalism. But it is the way the game is often played at the Herald, and at numerous other news organizations besides.

The Times v. Sullivan standard provides an enormous amount of protection for the news media to cover, comment on, and criticize public officials. It’s meant to. Ultimately, the Herald’s articles and columns amounted to criticism of a government official for the way he performed his official duties, the very sort of situation that the First Amendment was most designed to protect. The retired New York Times columnist Anthony Lewis, the author of a 1992 book about Times v. Sullivan called Make No Law, has described the case as giving "full meaning to the premise of the First Amendment that Americans would be free to speak and publish their views, however offensive to those in power." And the principal means by which the Times decision accomplishes that is by declaring that falsehoods — even a "defamatory falsehood," as Justice Brennan wrote — are not enough for a public official to prove libel, unless he can also show that those falsehoods were published either intentionally or recklessly. In the Herald’s case, it could well be that the jury concludes the articles weren't even false, or at least not substantially so.

That doesn’t make Judge Murphy any less sympathetic a figure. In his court testimony and in his public remarks, he comes across as a compassionate man — a rare judge who is sensitive to the victims of crime, but who also understands that justice is not always served by destroying the lives of perpetrators. What happened to him got way out of hand — not just in the Herald stories, but in the hate-filled radio talk shows, the Internet chat-room threats, Bill O’Reilly’s semi-informed attacks, all of it.

Murphy deserved better journalism than he received. But that doesn’t necessarily mean he was libeled.

Additional reporting by Deirdre Fulton and David S. Bernstein. Dan Kennedy can be reached at dkennedy[a]phx.com. Read his Media Log at BostonPhoenix.com.