Jury begins deliberations in judge's libel suit against the Herald

The jury hearing Judge Ernest B. Murphy's libel suit against the Boston Herald began deliberating yesterday after hearing from 27 witnesses, evaluating more than 70 exhibits, and listening to the two sides deliver closing arguments in a crowded courtroom.

In a low-key and analytical closing statement, Herald attorney Robert Dushman lauded the paper's reporting on Murphy. Herald staffers were "doing their jobs about informing the public what happens in the courts and what judges are doing," he said. "They recognized it as a story the public needed to hear and the public was entitled to hear."

Delivering an impassioned message to the jurors, Murphy's lawyer, Howard Cooper, accused the Herald of a reckless assault on the judge. The paper published a "sensationalized, supermarket tabloid story," he said, adding that the coverage "ruined the physical and emotional health, the career and the reputation of a good man."

The trial, which began Jan. 19, stems from the publicity triggered by a front-page Feb. 13, 2002, story in the Herald that portrayed Murphy's sentencing practices as lenient and contained two inflammatory quotations attributed to the judge by unnamed sources. One, in reference to a 14-year-old rape victim, was: "She can't go through life as a victim. She's 14. She got raped. Tell her to get over it." The other, described in the context of belittling a 79-year-old robbery victim, was: "I don't care if she's 109."

While the Herald has stood by the work of reporter David Wedge, Murphy has denied making the published remarks about the rape victim and said the quotation about the elderly robbery victim was taken out of context. Although those two quotations have dominated the trial, the racially mixed jury of seven men and six woman has been given the task of evaluating about 60 statements for potential libel as part of its deliberations.

To prove libel, Murphy must first show "by a preponderance of the evidence" that the Herald stories were false and defamatory. Because he is a public figure he must also show by "clear and convincing evidence" that the defendants published with actual malice by acting with a reckless disregard for the truth of falsity of those stories.

In his remarks yesterday, Dushman described Wedge as a reporter "who did a very thorough investigation" of Murphy's remarks by speaking to three "credible" sources in the Bristol District Attorney's Office and by tracking down the judge to try to get comment for his stories. Although he acknowledged some minor errors in the paper's reporting, Dushman cited eyewitness source David Crowley, a former assistant district attorney who testified that Wedge reported the "gist" of Murphy's remarks accurately, as someone who buttressed the reporter's work.

Dushman also told the jurors about the higher standard of proving libel in a case involving a public figure and said the Herald published its stories "with absolutely no belief that anything they were publishing was false and incorrect."

In his remarks to the jury, Cooper said that by getting his information from prosecutors in the Bristol District Attorney's Office who were already openly critical of Murphy, "Mr. Wedge spoke to and relied on only the people he already knew had a vendetta" against the judge. "That's actual malice," he said. "You're knowingly avoiding the truth."

Cooper painted a different portrait of Crowley, saying that he had been used in a media campaign against the judge that had been launched by District Attorney Paul Walsh and Assistant District Attorney Gerald FitzGerald.

"You heard Mr. Crowley tell you when he read Mr. Wedge's story he was concerned because it was not accurate," Cooper told the jury.