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

The case got another huge publicity boost on December 14, when the Washington Post ran a front-page story on the case. That, in turn, led to a New York Times account on January 9. Finally, there is the novelty of a judge suing a news organization for libel. Murphy has proved to be a sympathetic witness, testifying about terrible threats against his daughters, threats that at one point convinced him to buy a gun. Speaking of a particularly rough column by the Herald’s Howie Carr, Murphy testified, "I don’t know how to say this, Mr. Cooper. I wanted to kill Howie Carr. That’s how I was feeling."

But there are two crucial parts of Murphy’s case that seem weak — perhaps weak enough to convince the jurors that the Herald’s reporting was essentially true, even if it wasn’t accurate in all its details.

• Without question, the most incendiary quote attributed to Murphy in Wedge’s first piece was this: "She can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it." Given the likelihood that Murphy actually said "She's got to get over it," Howard Cooper has described the two quotes as carrying entirely different meanings.

But it’s not at all clear that the jury will see it that way. For example, Crowley, in his pretrial deposition, said he found "She’s got to get over it" to be "insensitive." On Tuesday, Crowley testified that he found Wedge’s reporting on Murphy’s comments to be substantially true.

"The gist of the quotes in what was said appear to be accurate," Crowley testified. "I just don’t remember the ‘tell her to get over it’ part." His recollection, he explained, was that Murphy had either said "She needs to get over it" or "She’s got to get over it."

Later, District Attorney Paul Walsh testified that Crowley had been upset enough about Murphy’s comments, and about his concern that Murphy was going to hand down a sentence that he believed was inappropriately lenient in the matter of the elderly robbery victim, that Crowley sought Walsh out to complain. As for the difference between "Tell her to get over it" and "She’s got to get over it," Walsh said: "The particular words didn’t make any difference to me.... Mr. Crowley was none too happy about the statement, and neither was I." Moreover, on February 22, 2002, the Globe published a critical editorial about Murphy that made no distinction between the two versions of the "get over it" quote. "According to prosecutors," the editorial said in part, "Murphy stated that the victim should ‘get over it’ — as if rape were somehow one of the bumps on the road of life." The bottom line: even if jurors conclude that Murphy said "She’s got to get over it," that doesn’t mean they’re going to interpret that as being solicitous toward the victim. As for Murphy’s contention that his reported statement about the elderly robbery victim — "I don’t care if she’s 109" — was incomplete and was actually meant to express his sympathy for the victim, it’s clear from Crowley’s and Walsh’s testimony that the prosecutors whom Wedge interviewed did not agree.

• However hard Wedge tried to interview Murphy before his first story ran, there’s no question that he made a game attempt for his follow-up. Finding Murphy outside a restaurant in New Bedford, near the courthouse, Wedge testified, he approached Murphy and asked him whether he wanted to comment on the story that had already appeared. Murphy refused, testifying that he said, "Mr. Wedge, I can’t comment on pending cases." (Murphy added that as he walked away, Wedge yelled, "Don’t you want to apologize to your victims?") Wedge, in his follow-up story, did not mention the fact that Murphy had explained that he couldn’t comment, something that Howard Cooper made much of during his examination of Wedge. But Murphy later granted an interview to the Globe’s Brian Mooney, who on March 6, 2002, quoted the judge as saying that he was the victim of a vendetta by District Attorney Walsh. "I have to assume that this was a calculated attempt on behalf of the district attorney, in light of his history with the Superior Court, to intimidate a Superior Court judge," Murphy told Mooney. Last week, according to news accounts, when Herald defense attorney Robert Dushman asked Murphy why he spoke with the Globe after telling the Herald that he couldn’t talk about pending cases, Murphy replied, "There was a reason I talked to Mr. Mooney and a reason I didn’t talk to Mr. Wedge."

Well, yes. And it would be reasonable for the jurors to conclude that it was because Murphy was furious with Wedge — understandable, but potentially damaging to his case, given that Murphy had flat-out rejected an opportunity to explain himself to the very newspaper he would later sue.