Attorney Babcock On Trib’s Big Libel Win

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By: Mark Fitzgerald

Newspaper libel cases that get all the way to the jury are pretty rare these days. Before its three-week trial last month, for instance, the Chicago Tribune hadn’t been before a jury on a libel matter in 39 years.

While the rare generally makes news, the case of Thomas Knight v. Chicago Tribune et al. didn’t generate much of a stir beyond Chicago. Truth be told, it wasn’t a hot topic here, either.

That’s probably because many people in the newspaper industry who were even vaguely familiar with the facts of the case figured it was a lock for the Tribune.

Chip Babcock, the high-profile media attorney the Tribune brought in for the trial, says the newspaper’s victory wasn’t assured — but that the win may be good news for all papers. Certainly the victory fits an increasingly evident pattern. For all the public antipathy towards the press, the fact is that newspapers and other media companies are faring well in libel matters. According to the Media Law Resource Center’s latest report, the number of libel and defamation cases going to trial has declined steadily since 1980.

The Tribune had a few things going for it in its libel case.

Thomas Knight was an undeniably public figure, a former DuPage County, Ill., prosecutor who had been charged along with six other county law enforcement figures with framing a man named Rolando Cruz in the locally infamous 1983 murder of Jeanine Nicarico, a 10-year-old who was home sick from her school in the upscale suburb of Naperville the day she was killed. Knight and the others were acquitted on all counts.

So right from the start, Knight had to prove actual malice. That is, that the Tribune’s statements about him were not only false, but that the newspaper published them knowing they were false, or with reckless disregard about whether they were true or not.

And that would be a tough standard to prove not only against the Tribune — which will never be confused with a scandal sheet — but also against the two careful and acclaimed reporters who were co-defendants, Maurice Possley, and Ken Armstrong. (Armstrong, now an investigative reporter with The Seattle Times, was dismissed as a defendant before the case reached the jury.) Their reporting the 1999 five-part investigative series, “Trial & Error–How Prosecutors Sacrifice Justice to Win,” documented incidents of prosecutors across the country withholding evidence in homicide cases.
Knight sued over three paragraphs in one of those articles that discussed some of the evidence in the Nicarico case. Much of the reporting was based on grand jury transcripts, but there was an error in the story. An assertion that Knight had told an evidence expert to “keep his mouth shut” about a particular potential bit of evidence was attributed in the article to the expert. In fact, the expert hadn’t talked to the grand jury. Instead, a private investigator related the assertion to the grand jury. It came out during the libel trial that the correct attribution had been changed during the long editing process.

Knight himself conceded the testimony to the grand jury was that he had told the expert “not to discuss the matter with anyone.” He argued that characterizing that statement as an instruction to “keep his mouth shut” was “false in a material way.”

Again, that would seem to be a rather thin reed to support a libel claim.

But this case didn’t look like a slam dunk to the lawyer the Tribune brought in after pre-trial attempts to get the lawsuit dismissed failed.

“I tell people all the time that you have to look at these cases on two different levels,” attorney Chip Babcock said in an interview this week. “On one level, the legal level, there’s New York Times v. Sullivan says is the hurdle … and it’s pretty darn high,” he said, referring to the landmark U.S. Supreme Court case that defined the “actual malice” libel standard for public figures.

“But then you have to look at the jury level,” Babcock continued, “and we see juries all the time deliver verdicts … sometimes substantial verdicts.”

Few lawyers are as experienced in libel and First Amendment issues as Babcock.

A partner with the Houston law firm Jackson Walker, Babcock is the lawyer that Oprah Winfrey turned to when beef producers sued her for some off-handed comments on her show about the safety of beef processing. The former sportswriter for The Philadelphia Inquirer and Miami Herald has won all 15 defamation cases in which he’s participated, according to the biography provided by his publicist.

But Babcock says he never takes a case for granted — especially one, as with the Tribune lawsuit, in which the newspaper is effectively put on trial.

“At the jury level, we know from the bits and snatches we’ve been able to glean that there was considerable sympathy for [Knight] and considerable antagonism towards the Tribune,” Babcock said.

Babcock thinks the case should have been dismissed long before it got to trial, but, as he points out, that issue had been settled by the time he was called in to the case, almost exactly a year before trial. (The Tribune was also represented by Nancy Hamilton from Jackson Walker, and Patrick Morris of the Chicago law firm Johnson & Bell.)

The key to the verdict in favor of the Tribune, he says, was the judge’s instructions to the jury — and the jury’s conscientious following of those instructions.

In the end, they found the Tribune error was not defamatory, and it wasn’t published with actual malice.

“They didn’t think under the definition, which was Knight’s definition of defamation, that he’d been defamed,” Babcock said. “And this was all instruction-driven. If the case stands for anything, let’s hope it’s trend — one small step towards the jury reading and understanding and applying the standards of defamation and actual malice.”

Babcock said his closing argument was “tailored all around the judge’s instruction.”

Journalists in the courtroom that day described it as a moving moment. Portions of Babcock’s argument have been widely quoted in Chicago. Here’s a transcript as posted on “Eric Zorn’s Notebook,” the blog (http://www.chicagotribune.com/news/columnists/ericzorn/weblog/) of the Chicago Tribune columnist:

“Let me submit to you that [the series] is important journalism. This is what a newspapers should be doing. And too few newspapers in our country anymore are doing this kind of work.

“The Chicago Tribune spent time and money and effort to shed light on a critical problem in our society. The Verdict: Dishonor. The Tribune investigation found hundreds of homicide cases where prosecutors violated their oath by hiding evidence or twisting the truth. Innocent people went to prison, some to Death Row.

“And I encourage you at some point during your deliberations [to] spend the time to read this series. It is important, award-winning journalism and is shedding light on our societal problems so that people like Steve Buckley don’t have to spend three years in prison when they are innocent.

“What a defamation case is about is, as Mr. Knight said (in his closing argument), deterring people from doing things. I wrote down what he said. I wrote it in red. “I want you to award punitive damages,” he said, “so that the Chicago Tribune doesn’t do this again.”

“And God help us if the Chicago Tribune doesn’t do this again.

“Because our society needs newspapers studying our problems.
Prosecutors are immune. The government is powerful. It’s the media and the newspapers that keep a check on government excesses, and that’s exactly what they were doing here.

“And there is an innocent mistake that was made that has given this man a hook to sue us and keep us all [in the courtroom] for three weeks.

“And that is his right.

“We respect this process, and we thank you from the bottom of our hearts for engaging in it.

“But we can respect this process, but not his lawsuit. And we have no respect for his lawsuit.

“There is not anything (in the passage at issue) that is false in a material way. There is no evidence of actual malice. The reputational damage that [Knight] claims is absurd. And we trust that you will reach the same conclusion when you consider all the evidence.

“Sorry if I get worked up about this. You can tell I feel deeply about it.

“The Chicago Tribune is a corporation, it’s true; but it is a family, and I’m very proud to be part of it. Thank you.”

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