Herald asks SJC to reverse libel verdict

Massachusetts Supreme Judicial Court justices peppered lawyers for the Boston Herald yesterday with questions about a reporter's destruction of notes and about factual mistakes in the journalist's work as the justices began their review of a $2.09 million libel award against the newspaper.

The newspaper is asking the high court to reverse the February 2005 verdict of a jury that determined the Herald and staff reporter David Wedge libeled Superior Court Judge Ernest B. Murphy in a series of reports beginning in February 2002 that portrayed the judge as soft on criminals and insensitive to victims' suffering.

A lawyer for Murphy said yesterday that with accrued interest on the award, the newspaper owes the judge more than $3.3 million.

The case centered on reports by Wedge that prosecutors in New Bedford had confronted Murphy over his alleged leniency toward offenders and on a statement -- attributed to the judge by anonymous sources and quoted by Wedge in the Herald -- that a teen rape victim should "get over it."

Justice Roderick L. Ireland pressed Herald attorney Bruce W. Sanford on why Wedge would have destroyed his notes of interviews in the case.

"He was aware within a day or two that the judge disagreed" that he made the comments attributed to him in the newspaper, Ireland said, "and yet he destroyed his notes. . . . Couldn't this be interpreted as an indication of malice?"

Sanford said that longtime, reliable sources told Wedge that the judge had made the remark.

Justice Judith A. Cowin asked why Wedge had not gone to greater lengths to verify the quotation. In one instance, she noted, Wedge reported someone had taken the witness stand when that had not happened, and also said several prosecutors were in a conference at which only one was present.

Sanford said those were technical errors that were not relevant to the libel question.

"It gives the whole article the flavor of error," Cowin said.

Of the six justices who listened to oral arguments and questioned lawyers for both sides, only Chief Justice Margaret H. Marshall , who is married to a nationally prominent journalist, seemed sympathetic to Sanford's argument that the courts should not impinge on the ability of the press to criticize public figures.

"It seems to me that what the prosecutors were complaining about, in criticizing Judge Murphy, was a bias in favor of defendants and against plaintiffs," Marshall said, adding that "this goes to the heart of what the judge should be most concerned about."

The mere presence of factual errors in a story does not prove malice on the part of the media, she said. Actual malice must be present for there to be a libel finding against a public figure.

Michael Avery , a lawyer for Murphy, argued that the court should affirm the libel finding and award because Wedge and the Herald knowingly published untrue reports on Murphy.

"The newspaper and the reporter knowingly fabricated an incident that did not happen, and knowingly fabricated a quote," Avery said. "Nobody told Mr. Wedge that the prosecutors confronted Judge Murphy in his chambers. . . . The angry judge lashing out at a 14-year-old rape victim -- that never happened."

Justice Robert J. Cordy recused himself from the case because, he said, "I know the publisher well and a lot of other people there well. I just thought it wasn't appropriate to sit on this case."

David Abel of the Globe staff contributed to this report.