Libel Suit Takes Aim at Print Reporter's Words on TV

The phone rang shortly after 6 a.m. on Feb. 13, 2002, at Superior Judge Ernest B. Murphy's home in Dover, Mass., southwest of Boston. His wife, Mary Keenan, answered. "Have you turned on the news this morning?" a friend asked her. "Do you know what's in the Herald?"

The friend told her that a large photo of her husband was on the front page of the Boston Herald under the headline "Murphy's law: Lenient judge frees dangerous criminals." The story said Murphy "heartlessly demeaned victims" and had dismissed the trauma of a 14-year-old rape victim by saying, "Tell her to get over it."

Keenan woke her husband, who, as she tells it, was stunned. He told his wife he never said that.

The report was quickly picked up by news media nationwide, then worldwide. It became fodder for TV talk shows. Massachusetts politicians and the victim's mother called for Murphy's ouster.

In June of that year, Murphy filed suit against the Herald and four of its writers for a "malicious and relentless campaign of libel unprecedented in the history of this Commonwealth." In court papers, he said the Herald "set out to sensationalize" a story that never happened. As a result, he said, his life had been threatened, his reputation had been ruined, and two of his daughters had been threatened with rape on a Herald-sponsored chat room. In August of this year, a Boston judge refused to dismiss the lawsuit.

I'll try (my words in bold) - The judge sentenced a 17 year old who twice raped a 14 year old who was staying at her house, and then committed a burglary to 8 years probation instead of 5 years in jail. "The prosecutor had hoped to put McSweeney in prison for five years -- for the robbery. The charges against him already had been reduced to statutory rape because no force was involved. Even the prosecutor said Murphy wanted to give McSweeney some prison time, maybe a couple of years. But sentencing guidelines allowed a choice only between a full five years for the charge of "masked" robbery, or no prison time at all."

On Feb. 13, a week after McSweeney was sentenced, the Herald published Wedge's "Murphy's Law" story, saying prosecutors had "confronted" the judge in his chambers over his sentences. At that time, Murphy allegedly said of McSweeney's victim, "Tell her to get over it."

The story ran, then the reporter went on Fox News and continued to state that he got the quote from a reliable source. Murphy has two daughters, and there were threats of raping them, and death threats to Murphy. I'll excerpt the end for you:

"It took three weeks before Murphy fought back in print. When the Herald had asked him to comment, the day after Wedge's "Murphy's Law" story ran, he declined, citing rules on closed judicial discussions. But when a Boston Globe reporter called him in early March 2002, when the case was closed, he talked.

"I deny that I ever said anything critical of, or demeaning about, the victim," he said. "Every single quote that has been attributed to me about that has been fabricated out of thin air. The real truth is 180 degrees. I was extremely concerned about the welfare of the victim, and I made that position apparent to everyone."
Indeed, the prosecutor, David E. Frank, said in a sworn affidavit that during the only conference related to McSweeney's sentencing: "Murphy expressed concern for the victim. He asked counsel about the defendant's ability to pay for counseling for the victim." He added: "I never heard Justice Murphy say 'Tell her to get over it.' "
So where did the quote come from?
According to the deposition of David Crowley, an assistant prosecutor, Murphy mentioned the case in an unrecorded conference relating to a different case the day after the McSweeney sentencing. The judge allegedly said that the victim "is 14; she can't go through life as a victim. She's got to get over it." Crowley reported this to his boss, Gerald Fitzgerald, in the prosecutor's office, and Fitzgerald then asked Crowley to meet with the Herald reporter.
"She's got to get over it'' or "Tell her to get over it" -- two different sentiments. Crowley later said under oath that Wedge's reporting of the quote was not accurate. "The 'Tell her to get over it' comment is a comment that I don't know where it came from," Crowley said. "It didn't come from me."
Wedge said he stands behind what he wrote but acknowledged the quote may not have been exact. "I know he said the judge said either "She's got to get over it" or "Tell her to get over it," he said in an interview. Murphy maintains the conversation never occurred.
Two defense lawyers who were present, Anton B. Cruz and Joseph Harrington Jr., said in sworn statements that they did not see a confrontation or hear Murphy say anything about a 14-year-old rape victim.
Wedge acknowledged in an affidavit that the 14-year-old girl, who he wrote had "tearfully" read her "heart-wrenching" statement in court, in fact never spoke in court nor took the stand. And although his story referred to "several" courthouse sources, he confirmed in a deposition that he had talked with only one person who had allegedly heard Murphy make the comment.
But for a public figure, simple untruths are not enough to win a libel lawsuit; there must be "reckless disregard" for the truth. That is one reason it is almost unheard of for a judge to sue over reporting on his official conduct.
But Murphy's attorneys seized on Wedge's comments on "The O'Reilly Factor" on March 7, 2002. O'Reilly asked Wedge, "Are you absolutely 100 percent sure that Judge Murphy said that the rape victim should get over it?" Wedge answered, "Yes. He made this comment to three lawyers. He knows he said it, and everybody else that knows this judge knows that he said it." Murphy's attorneys contrasted these statements to Wedge's statements under oath, when he repeatedly answered "I don't know" or "I don't recall" to questions about the reporting and writing of his story.
Wedge also "upped the ante" by suggesting that Murphy had made disparaging remarks not only about a victim but "to victims," and by telling Fox viewers that Murphy was "coddling defendants," they claim in their briefs.
Stephen Gillers, a law professor at New York University, recalls hearing about the alleged comments about the rape victim when the story first broke. "If the judge didn't say this, you can't put it all back into the bottle -- not with all the coverage on TV and radio" he said. For the victim, the judge, the prosecutors and the reporter, Gillers added, "it will be very hard for any of them to get over it."

I'd say, based on this version of the facts in the story, this reporter is clearly guilty of "reckless disregard for the truth." But, since the Judge is a "public person" he has a further burden of proof:

What the courts call a "public person" must normally prove that the defendant acted with actual malice in publishing the libel; that is, the defendant knew the material was false but still published it or exhibited reckless disregard for the truth. (McGraw Hill Mass Media Law)

So, did the reporter also act "with malice?" I think the reporter's performance on O'Reilly is clearly relevant to that argument:

But Murphy's attorneys seized on Wedge's comments on "The O'Reilly Factor" on March 7, 2002. O'Reilly asked Wedge, "Are you absolutely 100 percent sure that Judge Murphy said that the rape victim should get over it?" Wedge answered, "Yes. He made this comment to three lawyers. He knows he said it, and everybody else that knows this judge knows that he said it." Murphy's attorneys contrasted these statements to Wedge's statements under oath, when he repeatedly answered "I don't know" or "I don't recall" to questions about the reporting and writing of his story.
Wedge also "upped the ante" by suggesting that Murphy had made disparaging remarks not only about a victim but "to victims," and by telling Fox viewers that Murphy was "coddling defendants," they claim in their briefs.

These apparently unfounded statements, contradicted by his own sworn testimony, indicate he bears animus for the Judge, the required "malice."

I think this reporter is in deep trouble. Good.

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