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Serving the reality-based community since 2002.

Notes and observations on the press, politics, culture, technology, and more. To sign up for e-mail delivery, click here. To send an e-mail to Dan Kennedy, click here. For bio, published work, and links to other blogs, visit www.dankennedy.net.

Saturday, February 19, 2005

NOTES ON THE HERALD VERDICT. Shortly before 4 p.m. on Friday, a low buzz started among the reporters and other observers who had gathered to wait for the verdict in the Boston Herald libel trial. Supposedly the 12-member jury - supplemented earlier in the day by an alternate after one of the regular jurors was dismissed for personal reasons - was unable to come to a conclusion, and would be sent home until next Tuesday. The groans were nearly audible.

But with no one really sure what was going on, the several dozen people who had gathered in the 12th-floor courtroom hung around, waiting for some official word. It came at 4:03, when the jurors took their place in the jury box and handed their verdict to a court official. Boston Municipal Court judge Charles Johnson, who presided over the month-long trial with what might be called an excess of calm, spent several agonizing minutes reading the verdict before it was finally announced:

The Herald had been found to have libeled Superior Court judge Ernest Murphy. Herald reporter Dave Wedge was also found to have libeled Murphy. The case was dismissed against Herald reporter Jules Crittenden, who'd shared a byline with Wedge but who had not reported or written the most controversial parts of the Herald's February 13, 2002, story, which alleged that Murphy was a "wrist-slapping" judge who had "heartlessly demeaned" victims of crime. The damages: $2.09 million.

The verdict gets plenty of attention in today's papers. Start with Jack Spillane's account in the New Bedford Standard-Times. Spillane has done yeoman work in covering the trial, and he's gotten the space needed to do it right. New Bedford, you see, is in Bristol County, which is where this story began three years ago. The New York Times covers the case here; the Boston Globe here; and the Herald itself here.

Was it libel? I've got my doubts, as I wrote last week in the Phoenix. Ultimately it will be up to the appeals courts to decide. Murphy is a public official, and the Herald's reporting involved how Murphy was performing his public duties as a judge - reporting that is accorded the highest degree of First Amendment protection. Under the Supreme Court's landmark 1964 New York Times v. Sullivan decision, the jury had to find that the Herald had acted with "actual malice" - a legal term that means Wedge and his editors knew that their reporting was false, or that they showed "reckless disregard" for whether it was true or false.

In practical terms, that means Wedge and his editors had to have harbored strong suspicions that their reporting was false, but that they went ahead and published it anyway. Murphy's lawyer, Howard Cooper, argued that was precisely the case. But it seems more likely that Wedge allowed himself to get caught up in a vendetta against Murphy by Bristol County district attorney Paul Walsh, whose office was the source of quotes attributed to Murphy that he had said of a 14-year-old rape victim, "Tell her to get over it," and that he had dismissed concerns about a 79-year-old robbery victim by saying, "I don't care if she's 109." Murphy had emphatically denied saying any such thing about the rape victim, and testified that his remark about the elderly robbery victim had been twisted out of context.

Last evening Herald publisher Pat Purcell issued a statement vowing to appeal the verdict:

I would like to thank the jury for their diligence on this very complicated case.

However, we believe the first amendment allows news organizations to provide uninhibited coverage of government and public figures and we will continue to cover them vigorously.

We have complete faith in our reporter David Wedge, and we are confident this decision will be reversed on appeal.

Legalisms aside, the jury sent a powerful message to the media about the dubious, inflammatory reporting in which the Herald engaged. Wedge's first story was essentially based on one anonymous first-hand source - later revealed to be then-prosecutor David Crowley - who testified that Wedge got the "gist" of it right, but mangled the "Tell her to get over it" part. (In fact, the evidence showed that Murphy had more likely said "She's got to get over it, which raises the possibility that he was actually showing solicitude toward the victim - although Walsh testified that neither he nor Crowley took it that way.)

Wedge, by his own testimony, did not try to contact either of the two defense lawyers who were present when Murphy allegedly made those remarks; both of those lawyers testified that Murphy did not utter the offending statements. Wedge's attempt to interview Murphy before that story ran consisted of approaching a court officer at New Bedford Superior Court and being rebuffed, he testified. He did confront Murphy outside a restaurant the next day for a follow-up story; Murphy refused to speak with him, which I had thought might be a mitigating factor in the Herald's favor. Obviously the jury didn't agree. Nor did it help that Wedge reported in his follow-up that the 14-year-old had "tearfully" read a statement in court, when in fact the statement had been read by a prosecutor; or that Wedge had gone on The O'Reilly Factor and made statements that even his own reporting didn't support.

In the hallway outside the courtroom, after the verdict had been delivered, Herald reporter Tom Mashberg, who chairs the Herald union's editorial unit, read a statement in support of his colleague: "Our members are disappointed by this verdict and are supremely confident it will be overturned on appeal. David Wedge is an excellent reporter who worked tirelessly to expose the sentencing practices of a powerful sitting judge."

The afternoon, though, belonged to Judge Murphy, surrounded by his lawyers and family members. A tall, stocky man who towered over the press gaggle that surrounded him, he decried the ordeal he'd gone through as a result of the Herald's reporting and numerous follow-ups - including death threats, a hate-filled message suggesting his own daughters should be raped, and public characterizations of him as "Easy Ernie" and "Evil Ernie." At one point, Murphy testified during the trial, he went out and bought a .357 Magnum for protection.

"I think what happened to me should be an example," Murphy said yesterday. "Innocent people, their lives can be altered and they can be hurt immeasurably." He added: "I'm proud of myself for standing up, I'm proud of my family for standing by me." And he said that the verdict should stand as an "object lesson" in "how powerful the press is." Cooper said there was "a message here for the media." That message: "People like David Wedge need to think before they put their fingers to the keyboard."

Murphy also said he hopes to resume his duties as a judge, and that he will hear criminal cases if he's allowed. Among other things, he said he hopes that his ordeal will focus new attention on "alternative sentencing" options, such as rehabilitation for perpetrators addicted to alcohol or other drugs. Judges, he said, must "exercise discretion."

Perhaps that was the most powerful message of all yesterday. Because the truth is that what enraged Bristol DA Walsh was Murphy's compassion. Regardless of whether Murphy, behind closed doors and off the record, said things that could be interpreted as insensitive toward victims of crime, the real issue is Murphy's belief that not all criminals are beyond redemption - that it makes no sense to destroy additional lives if there is reason to believe that wrongdoers can be transformed into productive members of society. That's not a popular message, especially with prosecutors.

The Herald's Greg Gatlin today quotes a prominent First Amendment lawyer, Robert Bertsche, on why the Herald may win on appeal:

The sad thing about this is it's clearly a story of public importance. There are questions about this judge's record and whether he had been lenient, and that is something that we and our newspapers should be talking about. That's part of being in public office.

I think Bertsche is right, and I quoted him to similar effect last week. Nevertheless, there are numerous things the Herald could and should have done to avoid legal trouble. One more day of checking would have made all the difference.

posted at 11:14 AM | 18 comments | link


Shed No Tears for the Herald HacksIf Bertsche is right, "this is it's clearly a story of public importance. There are questions about this judge's record and whether he had been lenient, and that is something that we and our newspapers should be talking about" then the logical fllow-up question is: why didn't the Boston Herlad treat it responsiby --like a story of public importance?

Why didn't they pursue sober, careful journalistic analysis of Judge Murphy's decisions and make sound arguments as to why they believed those decisions were flawed and propose improvements? That's what real journalists and real professionals do.

The reason is that The Boston Herald is not a legitimate journalistic enterprise seeking honest answers to challenging and important questions affeting the public; it is a dishonest, exploitative tool of narrow-minded ideologues which they use to force-feed their right-wing agenda on the public on police "non-compliance."

The Herald and David Wege were never for a moment interested in finding out the truth about Judge Murphy or seeking improvements in the criminal justice system. Because the Herald crowd are bigots who disagree with the very notion of rehabilitation of criminals (who are disproportionately racial minorities), the paper and its ideological allies were attempting to intimidate a judge who unapologetically decided cases with rehabilitation in mind.

Is there any illusion as to what The O'Reilly Factor is about, and thus any surprise that Wege would go there to advance his ultimate goal of ideologically hazing a judge with whom he disagrees?

The Boston Herald's business model is to sell crap, bigotry, stereotypes and misinformation. They are pornographers, thugs and ideologues; they are a public menace. The right-wing corporate media hacks have gone too far for too long and the only thing that will stop them at this point is punishment in the form of financial penalties and jail time.

Alas, that is all they understand.

Let's hope this excellent decision is sustained on appeal and that more lawsuits are brought
against the heteful hacks posing as journalists.

Only then can we hope to reclaim an honest, serious public discourse.

~Anthony G.

By AnthonyG, at 12:26 PM  

Yikes! Anthony, resume the Metamucil (and spell-check). Your heat is obscuring your light. Does the Herald lean right? Of course. Was this reporting shoddy? Ditto. To say they have NO value because of this is absurd, however. When you start employing victimology on behalf of a judicial system largely populated by political hacks from both sides of the aisle, you erode your own credibility. If you honestly think one becomes a judge in this state while remaining pristine and above the "sausage factory" of politics, you're dreaming. The substance of Murphy's tenure on the bench has been largely ignored during the trial. Do you really want the Bush administration and their ilk to be able to silence people like Dave Wedge? I think I prefer to be the one to decide how much of the Herald is tabloid dreck and how much is info that would otherwide be missed. A small price to pay for transparency, in my opinion.

By Anonymous, at 2:57 PM  

I have my doubts whether the Herald, precisely because of its journalism -- often first-rate but frequently cheesy -- and its politics -- indisputably well right of center -- can get a fair trial in a case like this. The temptation for payback is enormous. Libel law is quite complicted, as Pat Purcell points out. Revenge is not.

-- Jim McGrath

By Jim McGrath, at 4:08 PM  

Precisely why the Herald MUST win this on appeal.Can you imagine Billy Bulger and his lawyers going after every writer who ever questioned his ethics? Or the managers of Bechtel suing for business lost due to unfavorable press? Be afraid, be very afraid.

By Anonymous, at 5:10 PM  

From a strictly legal/constitutional point of view, I think it is likely the Herald wins on appeal. Even so, one hopes this teaches the folks in the city room the difference between opinions, and opinion pieces, and reporting.

In a way, its too bad, because the Herald is much more on top of local stories, and much livelier, than the Globe.

By pfr, at 6:32 PM  

Anon wrote:

Does the Herald lean right? Of course. Was this reporting shoddy? Ditto. To say they have NO value because of this is absurd,The Herald's value is the same as the value of junk food --it contains some nutritional value, but is more bad for you than good when consumed on a regular basis.

The Herald's well-deserved reputation as Tabloid Junk News stems not just from this latest episode, but from years of proffering partisan right-wing spin as news, personally attacking public figures with whom they disagree, and giving a platform for racists like Howie Carr.

If the Herald were an honest, legitimate news source, they would have presented their criticisms of Judge Murphy in sober, honest and professionally-substantiated writings.But since they are dishonest partisan ideologues, they didn't wait to complete a professional-level fact-check. Wege simply went out to accumulate a pile of "quotes" and anecdotes that fit his (and his editors') pre-conceived stereotypes of permissive liberal judges and then pumped them through the usual channels of slander: talk radio, FOX and the conservative corporate media.

Reporters can do hard-hitting, critical investigative journalism without resorting to Herald Hackery, by getting off their lazy asses and backing-up their opinions with research and facts.

There's nothing dangerous or controversial about that --unless, like the Boston Herald, you trade in falsehoods and fear the truth.

By AnthonyG, at 6:54 PM  

I like the fact that the good judge got a gun. I figure he didn't want to give any would-be attackers a first chance, much less a second.

Hey, G-man, for a guy who went nuts over CNN's photo-editing error, you sure aren't very understanding of the Herald's likely-to-be-reversed reporting snafu.

By Anonymous, at 7:37 PM  

To Anon:

The Herald is guilty of a misdeed, not a SNAFU. Their brand of character assassination is a well-established technique in today's right-wing corporate media, and their libel of Judge Murphy makes for a great case study.

Wege and his editors set out to accumulate as many facts as possible that would confirm their dishonest stereotype of the judge while deliberately avoiding any contradictory facts. They published whatever explosive "quotes" and anecdotes they found --regardless of whether they had been thoroughly vetted for accuracy-- and dispatched Wege to repeat them in venues like The O'Slander Factor.

The Herald's ideological allies on talk radio, FOX and elsewhere knowingly and willingly fanned the flames, just as they've done dozens of times before against their ideological enemies.

The game here is for the Herald to deliberately avoid seeking or finding any contradictory evidence before launching their character assassination in print. That way, they can always claim they "didn't know" the information they published was false and therefore didn't commit libel (that's why they never made any real attempt to verify the accuracy of the quotes or get a direct comment from Murphy).

The corporate media has used this I-didn't-know she-was-only-14-she-said-she-was-21 defense for too long. It's time the public forces them to meet basic standards of civility and professionalism.

By AnthonyG, at 9:06 PM  

It must be a burden, being smarter than the rest of us. Others have opinions- they are "idealogues", while you, of course, are merely consistently correct. The Herald tries to sell papers, (not a revolutionary concept) and you're pissed off because they don't conform to your world view. Tough, deal with it. Price you pay for a 2-paper town where one is more familiar with The West Bank than Metrowest. (If only cheesy tabloids were our biggest problem around here.) News flash Tony, the blogging bozos that Callie Crossley derides on "Greater Boston" are you and I. Two final points:
1. They are called "conclusions" because one reaches them at the END of a thought process, and
2. Once and for all, the guy's name is "Wedge" dammit!

By Anonymous, at 11:45 AM  

Anon wrote:

Others have opinions- they are "idealogues", while you, of course, are merely consistently correct.Uh, no, ideologues aren't people with different opinions from me, they are people --like the Herald editors-- whose opinions are dictated by compliance with a narrow, orthodox ideology instead of open-minded inquiry, honest analysis and sober reasoning.

They don't reach conclusions after dilligently and open-mindedly gathering evidence; the start with an ideologically-based conclusion and then work backwards --gathering only evidence that affirms their pre-determined conclusion and avoiding contrary evidence (exactly ehat your pal Wedgie did).

There are plenty of people who are politically conservative, who oppose rehabilitation of criminals and who find fault in the Mass judicial system. Most of them are capable of presenting honest, reasoned, arguments to make their case and don't --like the Herald hacks-- resort to character assassination and libel to intimidate their enemies into ideological compliance.

Anon also wrote:

The Herald tries to sell papers, (not a revolutionary concept) and you're pissed off because they don't conform to your world viewYes, and McDonald's sells food and Phillip Morris sells cigarettes and Hustler sells pornography --it's a free country. But let's not be politically correct here: the Herald sells Junk News just as surely as McDonald's and Frito Lay sell Junk Food.

And no, I'm not pissed off that the Herald doesn't agree with my worldview, I'm contemptuous of them because they are bigots, they sell junk news, they libel people and engage in character assassination.

More than that, though, I'm overjoyed that they are finally getting what they deserve for being such craven sleazebags.

By AnthonyG, at 3:52 PM  

Hmm, sounds like somebody has a history with a certain tabloid...
Anon #2

By Anonymous, at 4:19 PM  

Well,lets look at the 3 conditions for defamation:

1. Was the Herald story true? I'd say no,it misrepresented [at best]what the judge said,if he said it at all.

2. Did they know it was false? Probably should have looked into the quotes in question with greater dilegence. [I think this was the toughest of the three to prove].

3. Did they lie with the intention of ruining the judges rep and career? Yeah, I'd say they hoped for a public outcry leading to resignation,would come from their story.

So, in my mind the BH would have been in trouble. For the rec. the Times,Post or Globe would have been too. It wasn't a slam dunk,but I would have gone thumbs down on the Herald.

By Anonymous, at 3:38 AM  

Your three-part analysis is right on target - but everything is dependent on #2. Libel law with public officials does not require that the reporter look into a matter with "greater diligence." Rather, he must show "reckless disregard," and run with the story even though he harbors strong suspicions that he got it wrong. This will be the basis of the appeal.

By Dan Kennedy, at 11:40 AM  

Definition of "Reckless Disregard"Allow me to hit the pause button on my opinionated commentary for a moment to ask Dan a legal question:

Is "reckless disregard" strictly defined/interpreted as harboring strong suspicions the info is wrong? What if the reporter harbored some doubt? What if he simply avoids serious vetting or verification of direct quotes before publishing? Isn't this akin to "deliberate indifference" in liability suits?

Unless journo's make legitimate attempts to vet facts & verify quotes, they can simply avoid the process altogether and say, "hey, I harbored no strong suspicions I had it wrong!"

By AnthonyG, at 12:14 PM  

Anthony -

Welcome to libel law. You're getting close to seeing the light.

"Is 'reckless disregard' strictly defined/interpreted as harboring strong suspicions the info is wrong?"

Answer: Yes, that's one of most common definitions.

"What if the reporter harbored some doubt?"Answer: That would be a problem. However, Wedge testified that he harbored no doubt, and that he believes his story is substantially true right down to this day. Does it matter what he thinks? Yes. Much of proving "actual malice" involves probing the reporters' and editors' state of mind.

"What if he simply avoids serious vetting or verification of direct quotes before publishing? Isn't this akin to 'deliberate indifference' in liability suits?"

Answer: It sounds like you're talking about a negligence standard, which is what would have prevailed if Judge Murphy had been a private figure.

"Unless journo's make legitimate attempts to vet facts & verify quotes, they can simply avoid the process altogether and say, 'hey, I harbored no strong suspicions I had it wrong!'"

Answer: Yes, that's pretty much the state of libel law regarding public officials and public figures. Now do you understand why experts like Robert Bertsche believe the verdict will be overturned?

BTW ... I'm not saying this is good or bad. I'm just explaining that this is the way it is. There are some pretty smart critics out there who contend that the Times v. Sullivan standard is to blame for a lot of irresponsible journalism. I think they're right.

By Dan Kennedy, at 1:19 PM  

I understood before essentially why experts think the verdict might be overturned, but was raising a larger ethical & political issue that folks seem to be avoiding: The Herald's business model of selling Junk News and the paper's patholgical gaming of libel law to advance an ideological agenda.

Their behavior is but one front of the larger right-wing misinformation campaign that is corrupting journalism, public discourse and our open society. As such, the first reaction of honest journo's and citizens should be to condemn the Herald's scurrilous smear-job before moving on to the more technical legal questions.

And while the Murphy Smear may not technically meet previous narrow standards for libel, it raises the very issue of whether libel law thus far has been interpreted too narrowly for a new media era in which news outlets like the Herald and FOX clearly avoid vetting their facts and quotes to game the system.

Shouldn't all of us who want honest reporting be rooting for exactly the kind of interpretation I suggested, and that the Murphy libel verdict be upheld?

By AnthonyG, at 10:06 PM  

You may be an army of one on this one, (not counting Danny Shechter). Line up the people who have been screwed by the MA judicial system on one side of the room and those ill-used by right-wing media on the other. Whom do you think people are more worried about?( After you get done with this one, world hunger and the West Bank could use some help.)

By Anonymous, at 3:01 PM  

To Anon:

Apparantly there was a jury of Bay Staters who might be part of my army, no?

If you can tell me where to find a room big enough, I'll gladly line up the family members of the 1,500 US troops and tens of thousands of Iraqi civilians killed in the US-led invasion that was allowed to proceed because the right-wing media bamboozled the public into believing Iraqi's hijacked the planes on 9/11, Saddam had stockpiles of WMDs and worked in partnership with bin Laden.

And you still haven't answerd the obvious question: if there are flaws in the MA judicial system, why not publish honest arguments to make the case for reform instead of phony quotes and character assassination?

By AnthonyG, at 4:17 PM  

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Dan Kennedy is senior writer and media critic for the Boston Phoenix.

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