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Unhappy with a $2.1 million libel verdict, a judge tries to leverage a little more From the Winter 2006 issue…

Unhappy with a $2.1 million libel verdict, a judge tries to leverage a little more

From the Winter 2006 issue of The News Media & The Law, page 17.

By Casey Murray

After receiving a favorable verdict in a libel case, but feeling slighted when you’re awarded less than you asked for, offering a settlement that sounds like a threat and is written on judicial letterhead may not be the best strategy.

That’s what happened in a Boston libel case between a judge and a tabloid. Three days after winning a $2.1 million libel verdict against the Boston Herald over an article reporting that he told a 14-year-old rape victim to “get over it,” Superior Court Judge Ernest B. Murphy sent a handwritten note to Herald Publisher Patrick Purcell. Written on court letterhead, the Feb. 21, 2005, note told Purcell to meet him without his personal attorney and hand over a check for $3.26 million. That’s the amount he felt the jury slighted him in awarding the $2.1 million verdict.

“Under NO circumstances should you involve [Herald attorneys from the law firm] Brown, Rudnick in this meeting,” Murphy wrote. “You will bring to that meeting a cashier’s check . . . No check, no meeting. You will give me that check and I will put it in my pocket.”

A letter dated one day later told Purcell that telling anybody about the letter would be “a BIG mistake.”

On March 18, 2005, Purcell received a third letter: “You have ZERO chance of reversing my jury verdict. You are lucky that the jury came back at 2 million. I was betting on 5. I will NEVER, that as in NEVER, shave a dime from what you owe me.”

The libel case, which has had more twists and turns than a Law & Order episode, started out only slightly bizarre. In February 2002, the Herald reported that Murphy told a 14-year old rape victim to “get over it.”

The article, headlined “Murphy’s Law: Lenient judge frees dangerous criminals,” cited several courthouse sources in quoting Murphy telling the victim: “She can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it.”

Murphy, who endured a wave of criticism and death threats over the comment, denied ever telling the girl to “get over it,” and sued the newspaper in June 2002.

“When Murphy first sued the Herald it was considered by many in the legal community to be a bit of a long shot,” said David Yas, publisher and editor-in-chief of Massachusetts Lawyers Weekly. “It’s terribly difficult to win a libel suit as a judge because you’re a public figure.”

As a public figure, Murphy faced proving not only that the Herald’ s reporting was untrue, but that the Herald published with actual malice &#151 knowledge or reckless disregard for the truth.

Once the trial began, it became clear that the Herald’s reporting about Murphy would not win any journalism prizes.

“Frankly, it was sloppy reporting,” Yas said. “The Herald so aggressively pursued this judge that it started to cause some discomfort within the legal community. But, sloppy reporting does not a libel suit make.”

And it turned out the Herald’s source for the “get over it” quote was one person in the district attorney’s office who may have had an axe to grind with Murphy.

That was enough for a jury to find actual malice in awarding Murphy $2.1 million for 19 counts of libel by the Herald. A trial judge set aside three counts and sliced $85,000 off the settlement.

“I’m a great believer in the First Amendment, it’s one the pillars that makes our country unique,” said Howard Cooper, Murphy’s attorney. “No lawyer could or should feel otherwise. But the First Amendment is not a license to defame. The jury heard evidence about a conscious effort to take a shot at a sitting superior court judge. The Herald published a story without a basis in fact that was outrageous. It’s not protected speech, and it shouldn’t be protected speech.”

The award jolted the Boston media law community.

“When the jury came back with the $2.1 million verdict it was shocking,” Yas said. “It sounded like a thunderclap had hit the legal community.

“In Massachusetts, judges are scrutinized heavily by the media, but the judges’ ethical rules are so strict that many judges feel powerless to fight back from negative coverage,” he said. “The judge won a clear victory for all the judges who have ever been improperly maligned. It was a home run, a grand slam for judges.”

Then things began to get weird. Murphy launched his letter-writing campaign.

“It was such a strange occurrence for somebody who hired a high-priced lawyer to fight the battle on the level and then win it fair and square,” Yas said. “It’s strange because he sounds so angry and irrational. And it’s unfortunate because now the judge sounds like just another bitter litigant after [the publisher’s] money.”

The letters came to light in December, when the Herald filed a motion asking for the verdict to be thrown out because Murphy had written the threatening letters.

Cooper, Murphy’s attorney, called the motion “a ludicrous and disgraceful publicity stunt.”

“The only unusual thing is that the Herald responded [to the verdict] by publishing and breaking confidential settlement negotiations that occurred nine months earlier,” said Cooper, who did not deny that Murphy wrote the letters.

Late last year, Murphy filed a motion to freeze the Herald’s assets after learning about the newspaper’s declining circulation and possible cash-out by three of its equity partners, The Boston Globe reported.

Boston Municipal Court Chief Judge Charles Johnson refused to vacate the jury’s verdict in late January and refused to freeze the Herald’s assets.

The Herald has appealed both the libel verdict and the judge’s decision that Murphy’s alleged misconduct did not warrant dismissing the verdict.

“This case is going to go up [on appeal], the judgment is going to be affirmed, and the Herald will be ordered to pay,” Cooper predicted.