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Libel Suit Takes Aim at Print Reporter's Words on TV

By Alicia Mundy
Special to The Washington Post
Tuesday, December 14, 2004; Page A01

The phone rang shortly after 6 a.m. on Feb. 13, 2002, at Superior Judge Ernest B. Murphy's home in Dover, Mass., southwest of Boston. His wife, Mary Keenan, answered. "Have you turned on the news this morning?" a friend asked her. "Do you know what's in the Herald?"

The friend told her that a large photo of her husband was on the front page of the Boston Herald under the headline "Murphy's law: Lenient judge frees dangerous criminals." The story said Murphy "heartlessly demeaned victims" and had dismissed the trauma of a 14-year-old rape victim by saying, "Tell her to get over it."

Keenan woke her husband, who, as she tells it, was stunned. He told his wife he never said that.

The report was quickly picked up by news media nationwide, then worldwide. It became fodder for TV talk shows. Massachusetts politicians and the victim's mother called for Murphy's ouster.

In June of that year, Murphy filed suit against the Herald and four of its writers for a "malicious and relentless campaign of libel unprecedented in the history of this Commonwealth." In court papers, he said the Herald "set out to sensationalize" a story that never happened. As a result, he said, his life had been threatened, his reputation had been ruined, and two of his daughters had been threatened with rape on a Herald-sponsored chat room. In August of this year, a Boston judge refused to dismiss the lawsuit.

The case, set for trial next month, is significant because it uses the rambunctious exchange on a talk show to try to prove the malicious intent of a newspaper reporter.

The brief cites statements made by a Herald writer not just in the pages of the tabloid but also on Fox News's "The O'Reilly Factor." A videotape of the show was played in court during a key hearing.

The case "reflects the perils of this new media culture" in which reporters go on the air to promote their stories, said Tom Rosenstiel, director of the Project for Excellence in Journalism. While editors scrutinize and sanitize reporters' words before they appear in print, no one performs that function in live TV interviews.

"When reporters who write stories, then go on the air to discuss" them, said Lucy Dalglish, executive director for the Reporters Committee for Freedom of the Press, "things tend to escalate. . . . If their appearances are going to be used to craft evidence of malice and reckless disregard for the truth in a print story, we're in very dangerous territory. I think this will have very serious implications for journalists."

Kurt Wimmer, a specialist in First Amendment law at Covington & Burling in Washington, pointed out that a television appearance by a reporter after a story appears in print extends the time allowed to show a reporter's state of mind and "raises another category of issues to bring against a newspaper or television station." He added: "The era of the reporter-celebrity may be coming to an end."

A Media Campaign

New Bedford, Mass., the Bristol County seat, is an old whaling town, best known as the port where Captain Ahab set off after Moby Dick and the place where an infamous pool hall rape occurred in the 1980s. By 2002, other controversies were swirling. County prosecutors were suing the Massachusetts Superior Court for refusing to give them more judges. And they were complaining about one judge they thought was too lenient: Murphy. Then 59, he had been on the bench for two years. Both a staunch Republican and a recovering alcoholic, he has said in court that "he believes in redemption," according to the Boston Globe.

The New Bedford Standard Times reported on Feb. 9, 2002, that one assistant district attorney called Murphy "the worst person in a black robe I have ever seen."

The comment appeared two days after Murphy had sentenced Dean McSweeney, then 18, for two counts of statutory rape the previous summer and for an unrelated robbery of a convenience store at knifepoint. The rape victim was the 14-year-old sister of McSweeney's best friend, Jimmy Taylor.

Taylor's mother, Teri Taylor, had taken McSweeney in when he became estranged from his family. According to affidavits, McSweeney, who was 17 at the time, stayed at the home frequently, had spent several hours in the girl's bedroom with her and twice took advantage of her.

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