Local weekly protected by privilege, Md. high court rules

The Maryland Court of Appeals ruled this week that the Baltimore City Paper was protected by reporting privileges when it published information from the court record of a grisly, local murder trial — information not used during the trial and potentially implicating another person not tried for the crime.

While not reflecting a substantial change in the law, the court's decision clarifies whether the fair report and fair comment privileges apply to documents and materials buried in court filings, perhaps even including hearsay statements not used at trial, said Peter Axelrad, who represented the reporter, Van Smith, and the City Paper.

In the case file, Smith, who was writing an article about the murders, found a memorandum potentially implicating the plaintiff in the murders. The memorandum was not used at the trial. The court held that because the memo was part of the public record, the newspaper was privileged in reporting and commenting on it.

The fair report privilege is a qualified privilege to report defamatory falsehoods contained in legal and official proceedings, so long as the account is "fair and substantially accurate," the court wrote, and the privilege extends to "post-trial recounts of trial testimony." Because the City Paper fairly and accurately reported the contents of the memo and of plaintiff Nicholas Piscatelli's trial testimony, the articles were covered by the fair report privilege.

Additionally, the articles were protected because the fair comment privilege protects "derogatory opinions based on privileged statements of fact," the court wrote. To the extent Smith expressed an opinion that Piscatelli was involved in the crime, that opinion was based on the privileged memo and trial testimony, and so was protected as a fair comment, the court held.

Peter Prevas, who represented Piscatelli, thought that a different analysis should apply. "Once you speculate what happened [beyond the facts included in privileged documents], you lose the privilege," he said.

In 2003, Jason Convertino and Sean Wisniewski were murdered in the Fells Point neighborhood of Baltimore. Two years later, Anthony Jerome Miller was tried and convicted for the double murder. But in the course of the investigation, some evidence arose potentially implicating Piscatelli in the crime, according to the opinion. Piscatelli was a real estate developer in Baltimore and the owner of Redwood Trust, a popular nightclub. Convertino had worked for Piscatelli as a booker of musical acts.

The case file contained a memo that was given over to Miller's defense team as part of discovery, and which contained a statement by Convertino's mother, Pam Morgan. Morgan reported to the police that, while hosting a benefit after the murder to raise money for Convertino's child, a man who she did not know approached her and told her that Piscatelli had hired someone to kill her son, according to the court's opinion. Though given to the defense, this information was never introduced at trial.

Smith, the City Paper reporter, wrote two articles in 2006 and 2007 about the murders. As the opinion states, "[b]oth articles more than hinted that Piscatelli may have been involved in the murders, despite that he was not charged criminally" for the crimes.

Smith had discovered the memo in the case file, and used that as well as the transcript of Piscatelli's testimony in the trial as the basis of his articles. Piscatelli's testimony indicated that he suspected Convertino of stealing money from the club and of attempting to switch an upcoming Sean "Diddy" Combs concert to a rival club. Smith discussed the memo in both articles and the testimony in the 2007 article, according to the opinion.

The Court of Appeals identified three essential themes in the articles: that the murders remain "mysterious" despite a conviction, that Piscatelli "may have had a motive to kill Convertino," and that Convertino's mother believed Piscatelli may have been involved. Piscatelli sued for defamation and false light invasion of privacy.

Affirming both the trial court and the intermediate appellate court, Maryland's highest court held that both the fair report and fair comment privileges applied, that the paper had not abused them, and therefore the articles were protected.