Massachusetts Court Hears ‘Boston Herald’ Appeal of Libel Verdict

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The Boston Herald on Thursday asked the state’s highest court to toss out a $2.1 million verdict won by a Superior Court judge who said the newspaper libeled him by reporting he made insensitive comments about a 14-year-old rape victim.

In February 2005, a jury found the newspaper had libeled Judge Ernest Murphy in a series of articles. Murphy maintained a Herald reporter misquoted him as telling lawyers involved in a case about the rape victim: “Tell her to get over it.” Murphy denied ever making the statement.

An attorney for the Herald and its reporter, David Wedge, said Thursday that Wedge did everything he could to ensure the stories were accurate, including twice trying to get comment from the judge himself. The attorney, Bruce Sanford, said Wedge had several sources who attributed the comment to Murphy.

“What we have here is three prosecutors telling him that Judge Murphy made the statement,” Sanford said.

But Murphy’s attorney, Michael Avery, said Wedge got numerous details of the story wrong.

Avery said the Herald depicted Murphy as a heartless judge who demeaned the 14-year-old rape victim. He said Murphy denied ever saying, “Tell her to get over it.” Instead, Avery said the judge asked whether the girl could receive counseling to help her move on with her life.

“He sued David Wedge and the Herald because they completely made up a vicious attack by this judge against a helpless victim,” Avery said.

The Supreme Judicial Court justices vigorously questioned attorneys on both sides of the case about how the Herald reported the story.

Sanford said the judge had not proved that anything in the articles was published with actual malice, the legal standard in libel cases.

Avery said to prove libel, the judge must show the reporter had a high degree of awareness that what he was publishing was false. Avery also argued that Wedge had shown actual malice, because he testified that he had destroyed his notes soon after the first story ran, but could not recall exactly when.

Sanford said Wedge testified that he routinely threw away his notes from stories when he no longer needed them.

The five justices who heard the case did not indicate when they rule. Murphy attended the session, but declined to comment afterward.

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