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.
"When I found out about this two weeks later from my daughter, I drove her straight to the Mansfield police station and filed a complaint," Teri Taylor said. "I told the cops to go pick up McSweeney."
The prosecutor had hoped to put McSweeney in prison for five years -- for the robbery. The charges against him already had been reduced to statutory rape because no force was involved. Even the prosecutor said Murphy wanted to give McSweeney some prison time, maybe a couple of years. But sentencing guidelines allowed a choice only between a full five years for the charge of "masked" robbery, or no prison time at all.
In court, Murphy said: "I myself have five daughters. . . . I understand what a daughter is. . . . I'm not oblivious to these considerations. . . . [But] I know what happens in state's prison when people like Mr. McSweeney show up at 17 years old."
Murphy sentenced McSweeney to eight years' probation.
Prosecutors were incensed and ratcheted up their media campaign. On Feb. 11, the Boston Globe ran a story under the headline "Bristol DA slams judge's bail rulings."
Herald reporter Dave Wedge, too, had received a tip about Murphy's "lenient" record a couple of weeks earlier, according to his deposition. But now two other local papers had run stories, which his editor "pointed out." Wedge quickly spoke with a Bristol district attorney who was a frequent source, according to his deposition.
On Feb. 13, a week after McSweeney was sentenced, the Herald published Wedge's "Murphy's Law" story, saying prosecutors had "confronted" the judge in his chambers over his sentences. At that time, Murphy allegedly said of McSweeney's victim, "Tell her to get over it."
Story Takes Its Toll
Two days later, the Murphy family, including daughters Jessica, 14, and Emily, 10, left for their annual school break vacation at a time share in the Caribbean. "We thought things would blow over," Murphy's wife said.
Instead, they escalated. In the end, the Herald printed 17 stories and columns involving Murphy. Teri Taylor held a news conference with her daughter, the victim, in her back yard and demanded that the judge be fired. She requested an investigation by the Commission on Judicial Conduct. (She said she was later informed that Murphy had been cleared.)
Meanwhile, on WEEI-AM, Herald sports columnist Gerry Callahan, co-host of "Dennis & Callahan," began referring to Murphy as "Easy Ernie" on the popular morning radio show, Murphy's lawyers said. Callahan has not returned phone calls seeking comment.
In St. Maarten, Murphy received a call from his daughter Adrienne. She read him a column in the Feb. 20 Herald by Howie Carr titled "Easy Ernie judges daughter's teasing to be out of order." She faxed him pages from Carr's follow-up Internet chat.
"If there were real justice in this world the 'poor rapist' would go to Easy Ernie's house and rape all of HIS daughters twice," said one. Another typed: "Publish his street address and then tell him to 'get over it.' He's a public employee and the public has the right to know!" And one reader volunteered: "Easy Ernie doesn't reside in Sherborn. Reliable info has him residing in neighboring Dover."
"That was it for me," said Keenan, Murphy's wife. Jessica and Emily were sent back home, where they found police guarding their house. They collected some clothes and schoolbooks. Under police escort, Emily went to stay with their grandmother in Quincy, and Jessica bunked with one of her friends. The girls were told only that too many reporters were hanging around. But reading the newspaper, Jessica learned about the threats. "My mom and dad cried when they told me what was really going on," she said.
The next week, Teri Taylor appeared on "The O'Reilly Factor." Host Bill O'Reilly promised her, "We're going to stay on this story and hopefully we'll get the Massachusetts politicians involved and get this guy, Murphy, off the bench." Meanwhile, Greta Van Susteren of Fox News told her "On the Record" audience, "Judge Murphy advised the girl, 'Get over it.' While she ponders the judge's callous advice, maybe Massachusetts should ponder this: Get rid of him."
Bristol County chief prosecutor Paul F. Walsh Jr., in his deposition, called the public uproar a "frenzy" and said: "It went farther than I could comprehend."
As the stories continued, Murphy's daughters had their own crises. In an interview, Jessica said she "really freaked out." She gained weight, and her grades dropped. She couldn't sleep in her bedroom on the first floor, for fear of someone breaking in. "I cried all the time, I had terrible dreams," she said. "I stopped leaving my house."
Emily also started having crying jags and refusing to go out, Jessica said. Her mother said she had nightmares about men suffocating her.
Back in his office, Murphy found piles of hate mail. A Californian who had seen O'Reilly wrote angrily that he had canceled his vacation in Massachusetts. A woman in Derby, England, asked him to overturn the "deplorable sentence." Another woman told him to do the "decent" thing and "step down." Rape counselors excoriated him.
One enterprising correspondent sent him a piece of toilet paper wrapped around a wad of excrement. "You piece of [expletive]," it said. "I'm going to wipe you out."
Murphy developed post-traumatic stress disorder and later collapsed with a large duodenal ulcer near an artery. "The aftermath has quite literally torn my guts out," he said in his lawsuit. He asked the court to assign him to hear only civil cases. The blustery Irishman began breaking down in tears -- sometimes in front of lawyers, Jessica said.
One day, Murphy found an anonymous envelope in his chambers. In it was a copy of his picture from the Herald, with a bull's-eye drawn around his face and the words "You're dead. Get over it, You bastard."
Murphy bought a Magnum.
Searching for Truth
It took three weeks before Murphy fought back in print. When the Herald had asked him to comment, the day after Wedge's "Murphy's Law" story ran, he declined, citing rules on closed judicial discussions. But when a Boston Globe reporter called him in early March 2002, when the case was closed, he talked.
"I deny that I ever said anything critical of, or demeaning about, the victim," he said. "Every single quote that has been attributed to me about that has been fabricated out of thin air. The real truth is 180 degrees. I was extremely concerned about the welfare of the victim, and I made that position apparent to everyone."
Indeed, the prosecutor, David E. Frank, said in a sworn affidavit that during the only conference related to McSweeney's sentencing: "Murphy expressed concern for the victim. He asked counsel about the defendant's ability to pay for counseling for the victim." He added: "I never heard Justice Murphy say 'Tell her to get over it.' "
So where did the quote come from?
According to the deposition of David Crowley, an assistant prosecutor, Murphy mentioned the case in an unrecorded conference relating to a different case the day after the McSweeney sentencing. The judge allegedly said that the victim "is 14; she can't go through life as a victim. She's got to get over it." Crowley reported this to his boss, Gerald Fitzgerald, in the prosecutor's office, and Fitzgerald then asked Crowley to meet with the Herald reporter.
"She's got to get over it'' or "Tell her to get over it" -- two different sentiments. Crowley later said under oath that Wedge's reporting of the quote was not accurate. "The 'Tell her to get over it' comment is a comment that I don't know where it came from," Crowley said. "It didn't come from me."
Wedge said he stands behind what he wrote but acknowledged the quote may not have been exact. "I know he said the judge said either "She's got to get over it" or "Tell her to get over it," he said in an interview. Murphy maintains the conversation never occurred.
Two defense lawyers who were present, Anton B. Cruz and Joseph Harrington Jr., said in sworn statements that they did not see a confrontation or hear Murphy say anything about a 14-year-old rape victim.
Wedge acknowledged in an affidavit that the 14-year-old girl, who he wrote had "tearfully" read her "heart-wrenching" statement in court, in fact never spoke in court nor took the stand. And although his story referred to "several" courthouse sources, he confirmed in a deposition that he had talked with only one person who had allegedly heard Murphy make the comment.
But for a public figure, simple untruths are not enough to win a libel lawsuit; there must be "reckless disregard" for the truth. That is one reason it is almost unheard of for a judge to sue over reporting on his official conduct.
But Murphy's attorneys seized on Wedge's comments on "The O'Reilly Factor" on March 7, 2002. O'Reilly asked Wedge, "Are you absolutely 100 percent sure that Judge Murphy said that the rape victim should get over it?" Wedge answered, "Yes. He made this comment to three lawyers. He knows he said it, and everybody else that knows this judge knows that he said it." Murphy's attorneys contrasted these statements to Wedge's statements under oath, when he repeatedly answered "I don't know" or "I don't recall" to questions about the reporting and writing of his story.
Wedge also "upped the ante" by suggesting that Murphy had made disparaging remarks not only about a victim but "to victims," and by telling Fox viewers that Murphy was "coddling defendants," they claim in their briefs.
Stephen Gillers, a law professor at New York University, recalls hearing about the alleged comments about the rape victim when the story first broke. "If the judge didn't say this, you can't put it all back into the bottle -- not with all the coverage on TV and radio" he said. For the victim, the judge, the prosecutors and the reporter, Gillers added, "it will be very hard for any of them to get over it."