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Massachusetts Judge Sues the Boston Herald for Article and a Reporter’s Remarks

December 16, 2004 at 12:00 AM EDT


TERENCE SMITH: The unusual case involves Massachusetts Superior Court Judge Ernest Murphy, who is suing the Boston Herald and four of its reporters for defamation and libel.

Under the headline “Murphy’s Law: Lenient Judge Frees Dangerous Criminals,” the paper described how Judge Murphy had sentenced an 18-year-old man to probation for the statutory rape of a 14-year-old girl.

The paper also has reported that the judge said to the prosecutors of the victim, “Tell her to get over it.”

Discussing the case later on the O’Reilly Factor on Fox News, Herald reporter Dave Wedge had this exchange with host Bill O’Reilly.

O’Reilly: “Are you absolutely, 100 percent sure that Judge Murphy said that the rape victim should ‘Get over it’?” Wedge replied, “Yes, he said this – He made this comment to three lawyers. He knows he said it, and everybody else knows that he said it.”

Judge Murphy flatly denies that he made such a statement. His suit against the Herald comes to trial next month.

TERENCE SMITH: Joining me now are Alicia Mundy, Washington correspondent for the Seattle Times, who recently wrote about the case in the Washington Post; and Alex Jones, director of the Shorenstein Center on the Press, Politics and Public Policy at Harvard University. Welcome to you both.

Alicia, the libel suits are not uncommon, of course. But this is very unusual. Why?

ALICIA MUNDY: Well, first of all, we have a judge who is suing for libel based on a story that is based on what he said as a judge officially. That makes it very unusual.

But more importantly and perhaps more interestingly is that the judge is bolstering or attempting to bolster his case against the Herald by bringing in tape of what one of the Herald reporters said on TV, specifically on The O’Reilly Factor, to try and prove that the reporter not only made mistakes, but that he actually committed malice against the judge.

TERENCE SMITH: And that’s a key, is it not, Alex Jones, to proving libel against a public official? There’s quite a high bar, is there not?

ALEX JONES: There is. And the Supreme Court created this mechanism sometime back that created the opportunity for journalists to be able to be mistaken, provided they are not mistaken recklessly or intentionally.

And so that’s why public figures and public officials so rarely bring libel suits, because they have to get over that hurdle. It’s not simply a matter of whether there’s defamation. It has to be either false or knowingly false or done with reckless disregard for whether it is false.

TERENCE SMITH: All right. Alicia, take us back a little in this case. There was not one but I guess a total of 17 articles in the Boston Herald and columns that dealt with this issue.

ALICIA MUNDY: Yes. It began in February of 2002.

Prosecutors in New Bedford, which is near Boston, had been complaining about Judge Murphy because they felt he was letting too many accused criminals out on bail too easily. And then Judge Murphy had a case in which he sentenced the rapist for having statutory… for statutory rape with a 14-year-old girl who had been hanging out with him. And the prosecutors were very, very upset about this. And shortly thereafter there appeared the first story in the Boston Herald, “Murphy’s Law,” and it said that the judge had said to one of the prosecutors, “tell her to get over it.”

Later there were follow-up stories that said that the young girl had tearfully take the witness stand and read her statement and it was a heart-wrenching scene.

And the stories continued about this judge and his callous remark, its impact on the victim, her mother and basically it built up into quite a drumbeat of stories.

TERENCE SMITH: And yet, when the suit was filed and depositions were taken, a different story emerged. Not only did the judge deny flatly that he said anything like, “Tell her to get over it,” but a deputy prosecutor and others said that, too.

ALICIA MUNDY: Well, in the depositions, what came out is that the reporter had initially thought he had three sources, or I believe said he had three sources in his deposition, but as it turns out, two of those sources had not been present when the judge had said anything, and only one of them in his deposition said that he told the reporter a different story, that he had told the reporter the judge said something different, something that might be considered benign. “She’s 14. She can’t go through life as a victim. She’s got to get over it.”

TERENCE SMITH: So more solicitous than dismissive.

ALICIA MUNDY: Quite different.

TERENCE SMITH: Alex Jones, it’s very frequent these days for reporters to go on television and talk about stories. Does this take them into different and uncharted waters?

ALEX JONES: Well, it takes themselves into a different place than we have been traditionally, but I think that this is sort of the product of the world we’re in now, with cable news especially.

Now it is frequently the case that the reporting in journalism is done by print reporters and they are frequently now being invited to go on cable news shows like The O’Reilly Factor and others. And the environment of television, as you know, especially cable television, is action; it’s got to be action.

So they’re being pushed to say as much as they can be pushed to say and sometimes you can get caught up in the heat of a situation and misspeak. I mean, that happens. When you are in an environment that involves a libel suit, it compounds the danger. I don’t think that this is going to mean that journalists are not going to do it.

But certainly if this journalist is trying to argue that because he said something on The O’Reilly Factor that might prove to be damaging to him in his libel suit, then he should not be held accountable for that. That’s ridiculous. Of course, if you go on television and speak about a case or an article which you’ve done, then that’s germane.

Especially in the case of a lawsuit that’s being brought this way, when malice, when the mindset and the attitude and the belief system of the reporter is very important to whether or not the judge will be successful in bringing this suit, they’re going to be able to go into the head of the reporter and anything that sheds light on what the reporter’s attitude is, including what they might say on television, that could be damaging.

I think that the larger point, though, is that when you get on these shows, a lot of times journalists will go well beyond what they would do when they are doing their journalism for their news organization. Those things have to be verified.

When you get on television, you’re sort of talking, you’re shooting your mouth off, you’re encouraged to, you’re put under pressure to do that in some ways. And so sometimes you can go well beyond. You can start asserting, and that can be interpreted by people listening as factual, or at least your claim that that’s the facts, when in fact it’s not backed up by the kind of reporting and verification that you would insist upon for your original piece of reporting in the news organization that, you know, you’ve done the story for.

TERENCE SMITH: Alicia Mundy, the judge maintains in his complaint that his health suffered, that he and his family received death threats as a result of all this publicity, that there was real damage to him. So what is he seeking from the Boston Herald?

ALICIA MUNDY: Well, he is seeking both damages, financial monetary damages, and he’d like a front page retraction from them. One of the prosecutors who had spoken against the judge in one of the stories complained he was too lenient, in his deposition said this went far, the reaction of the stories went far beyond what he had expected, that it was a frenzy. The judge received death threats. People sent him a wad of excrement wrapped up in toilet paper to his office. His daughters were mentioned in a chat room sponsored by the Herald newspaper after one of the columns ran in the Herald and people got on the Web site and said, “Why doesn’t somebody go rape his daughters?”, who were also teenagers. “Why doesn’t somebody rape his daughters? Here’s where he lives. He lives in this city in Boston.”

TERENCE SMITH: So it got very brutal. What does the Herald say in its defense?

ALICIA MUNDY: The Herald is sticking by the stories, although it has come out in depositions that at least some of the statements printed as facts in the stories were not accurate.

For instance, the victim, the 14-year-old victim, actually never took the stand. So there was no heart-wrenching scene in court. She didn’t tearfully read her statement. She said nothing in court.

TERENCE SMITH: So that goes to the mistake. But, Alex Jones, you say it has to go further than that, to malice and reckless disregard.

ALEX JONES: It does. I mean, basically what the law is calculated to do for people who are elected officials, people with power, is to say journalists can be wrong. But it does not want to give journalists a blank slate. And so what it builds in is “you could be wrong, but you can’t be wrong to the extent that you don’t care whether you’re right or not.”

If it should be proved in this case that the Herald had very ample reason to believe that their reporting was wrong or at least questionable and if they persisted in doing it in story after story after story after story, that is a different kind of attitude than simply making a mistake in a story about the judge.

I think that the judge’s case is going to hinge on whether he can demonstrate that they knew or had reason to believe that this was false and persisted and persisted and persisted in reporting it. If that should be the case, then even this high standard of liability could be met and the newspaper could be found guilty.

TERENCE SMITH: And finally, very briefly, Alicia Mundy, this goes to trial. This goes to trial in January.

ALICIA MUNDY: January 19.

TERENCE SMITH: And that’s before a judge or a jury?

ALICIA MUNDY: I believe the judge who is suing is asking for a jury because he feels that he can show what happened and show the depositions of the reporter and get a jury to look at this and feel for him.

TERENCE SMITH: Okay. Alicia Mundy, Alex Jones, thank you both very much.

ALEX JONES: You’re welcome.