SJC upholds judge's libel victory over the Herald

The state's highest court upheld a $2.01 million libel verdict against the Boston Herald yesterday in a sharply worded decision calling the newspaper's 2002 articles about Superior Court Judge Ernest B. Murphy "defamatory and false."

The stories portrayed Murphy as soft on crime and generated widespread outrage by quoting anonymous sources as saying that the New Bedford jurist had declared of a 14-year-old rape victim, "Tell her to get over it." Hate mail deluged Murphy's office, causing him considerable emotional and physical distress, his lawyers said.

In 2005, a Suffolk Superior Court jury found that the Herald and its lead reporter on the Murphy stories, David Wedge, had maliciously published false and defamatory material about the judge, meeting the high standard for libel. The Supreme Judicial Court upheld that decision yesterday.

"The press . . . is not free to publish false information about anyone (even a judge whose sentencing decisions have incurred the wrath of the local district attorney), intending that it will cause a public furor, while knowing, or in reckless disregard of, its falsity," Justice John M. Greaney wrote in the unanimous opinion for the court.

Murphy, in brief comments after the decision, said the record of his treatment of the rape victim had now been definitively corrected. "I am very, very happy that it is now established beyond possible contraversion that my remark about the rape victim and my attitude about her in truth were very compassionate," he said.

His legal team said that with interest the amount the newspaper owed Murphy was $3.4 million and counting. The newspaper has 90 days to appeal the case to the US Supreme Court.

Murphy's lawyer, Howard Cooper, called on the Herald to end the case and "issue a public apology to Judge Murphy and his family."

The Herald would not comment on whether it will appeal or apologize. In a statement, Herald president and publisher Patrick J. Purcell said, "While we are deeply troubled by the SJC's decision, it will in no way affect our newsgathering, and we will continue to bring readers thorough and relevant enterprise stories and public criticism of judges."

Purcell said the paper remains "unwavering in our complete confidence in Wedge's journalistic skills."

Wedge said in a statement: "I continue to firmly stand behind my reporting on these stories. Any insinuation by anyone, including the SJC, that anything in any of the stories on Judge Murphy was fabricated is completely reckless, irresponsible and untrue."

The verdict is one of the largest libel judgments in Massachusetts history. In 2002, a jury delivered a $2.1 million libel ruling against the Globe in a case brought by a former physician at the Dana- Farber Cancer Institute. In that case, upheld by the SJC in 2005, the judge issued a "default judgment" because the Globe would not disclose confidential sources. The paper was not allowed to present a defense.

Yesterday's ruling came down as reporters have faced harsh civil fines and even jail in a string of high-profile legal cases. But legal and journalism specialists said they did not expect the SJC's decision to alter the journalistic landscape in Massachusetts.

"The well-worn standard of proving actual malice for libel has been on the books and remains on the books," said David Yas, publisher of Massachusetts Lawyers Weekly. "It's a rock-solid standard. It's still shocking that Murphy was able to prove malice in this case and that the Herald was not saved by the First Amendment."

Nearly 58 percent of libel cases are thrown out of court or overturned on appeal, according to the Media Law Resource Center in New York. The plaintiff's verdicts that survived appeals average $1.45 million nationally, the group said. But the SJC appears to have considered the Herald case to be exceptional.

"Neither Wedge, nor any other Herald employee who testified at trial, could name one person at the Herald who either edited, or checked for accuracy of, the content of Wedge's article," the court's opinion said.

Stephen Burgard, director of Northeastern University's journalism school, said the case underscored the need for journalists to be careful and thorough.

"This is a wake-up call to report ers everywhere that you better have your reporting down solid," he said. "You better have heard it yourself, or you better have people on the record."

Murphy's lawyers said yesterday that the decision was narrow and would not affect most reporters. "This case did not change law," said Michael Avery, a Suffolk Law School professor who argued Murphy's SJC case. "The decision they made in this case should cause no alarm to anyone in the media."

A considerable portion of the SJC decision discussed the comment about the rape victim attributed to Murphy by the Herald.

During the 2005 trial, Wedge told jurors that he was told about the comment by a prosecutor who heard it first-hand. But in depositions, Wedge revealed that he was only able to confirm the comment from first-hand sources after the story had been published and that the sources had given him a less inflammatory version of the judge's alleged comment than the one Wedge used in his report.

"It is fair to say that, by the end of Wedge's testimony, his credibility on any material factual point at issue was in tatters," the opinion said.