Wedge spoke with District Attorney Walsh and Gerald FitzGerald, his chief trial counsel. They both told Wedge that Judge Murphy made certain statements in front of others, including the “tell her to get over it” statement. Wedge testified he met ADA Crowley with Walsh and Fitzgerald. According to the SJC opinion Wedge testified at trial that “Crowley confirmed to Wedge that Walsh had correctly characterized the statements. Wedge read from his notebook the quotations that would appear in the Herald, and Crowley did not indicate that any of the information was inaccurate.”
Wedge testified he went to the courthouse to get a response from Judge Murphy but was turned away by a court officer. At trial wedge testified he discarded the notebook in which he had recorded the plaintiff’s statements, as told him by Walsh, FitzGerald, and Crowley, sometime after the February 13 story ran.
2. Wedges Deposition Testimony -Wedge testifies under oath at his deposition to the following version of events: (quotes pulled directly from the SJC opinion.)
– he never met with ADA Crowley prior to the publication of the story
– “conceded that his sources for the statement (FitzGerald, Walsh, and Crowley) related the statement using slightly different words, and that, instead of “tell her to get over it,” the words told him may have been, “she’s got to get over it.”
– that all three of his sources had told him that the plaintiff had said, “She’s a [fourteen year old] girl, she got raped, she’s got to get on with her life and get over it.” He admitted that FitzGerald originally had told him that the plaintiff had said the words after the sentencing hearing in the rape case.
– his information had changed prior to the libelous article
– he had no source at all for the report that the words had been spoken when prosecutors had “confronted” the plaintiff over his lenient sentencing practices. “According to Wedge, the confrontation context may have been a fabrication.”
– Wedge could not give details about the court house, the court room, or the court employees who barred him from seeing the judge when he was looking for a response.
– “Wedge conceded that the statement in the February 14 article reporting that the rape victim “took the stand and tearfully told the [plaintiff] how the rape had affected her” was false. Indeed, in a different article appearing in the Herald on February 14, directly alongside Wedge’s article, it was correctly reported that a prosecutor had read the victim’s impact statement in court.”
– “Neither Wedge, nor any other Herald employee who testified at trial, could name one person at the Herald who either edited, or checked for accuracy of, the content of Wedge’s articles.”
The SJC concluded that “It is fair to say that, by the end of Wedge’s testimony, his credibility on any material factual point at issue was in tatters.”
3. Other Witnesses Testimony
This speaks for itself
Crowley, the only participant who attested otherwise, testified that the plaintiff had said words to the effect of “she needs to get on with her life and get over it.” He testified forcefully that the plaintiff had not stated the words, “Tell her to get over it” and denied that he had ever told anyone that the plaintiff had done so. When Crowley saw the February 13 Herald article he was “surprised” and “concerned” because he did not know where the “tell her to get over it” quote originated. He testified that it was not accurate. Crowley agreed that he had testified, at his deposition, that if Wedge had asked him to confirm that the plaintiff had used the phrase “tell her to get over it” (as Wedge had claimed), he (Crowley) would have corrected him. He also testified that he had never told Wedge that he had heard the plaintiff had demeaned or belittled the young rape victim or heartlessly demean any victim. Crowley testified that, the day after reading the February 13 article, he went to see FitzGerald (who was his superior), and told him that he was not pleased with what had been said in the article.
The only witness in support of Wedge was ADA FitzGerald who confirmed that Crowley told him what Wedge reported. A reasonable jury could have inferred that Fitzgerald was bias because, according to the SJC,
“FitzGerald was the only witness at trial, besides Wedge, to testify that the actual words Crowley had told him, and that he and Walsh had repeated to Wedge, were “tell her to get over it.” The jury’s attention with respect to FitzGerald’s testimony, however, was clearly focused on the probability of bias. The jury heard evidence that FitzGerald had known the editor-in-chief of the Herald, Andrew F. Costello, Jr., for over twenty years, both professionally and socially. FitzGerald testified that his daughter had worked for the Herald from 2001 until 2004 (first as an intern, later as a reporter), and that she had obtained her job, at least in part, because of his friendship with Costello. FitzGerald had once represented one of Costello’s family members in a criminal matter. As conceded by defense counsel at oral argument, determinations of credibility under the Bose standard remain the province of the jury. While it is impossible to know for certain exactly what credibility determinations led to the jury’s verdict, it is clear that the jury did not believe FitzGerald.”
Dan Kennedy believes the jury got it wrong because he says, “in order to show libel, Murphy had to prove that the Herald knew what it was reporting was false or strongly suspected that it was false.”
Dan goes on to say “I don’t think Murphy came close to showing that – indeed, I think the Herald’s account was substantially true. Convincing a jury that a news org has committed libel is the easiest thing in the world. And I think the SJC simply adopted Murphy’s arguments rather than conducting its own, independent inquiry, which is required when the First Amendment is on the line.”
Last thing first Dan, the SJC did just that. It examined the entire transcript and record and made an independent determination that a reasonable person could find by a preponderance of evidence that David Wedge acted with malice afore thought. That is what is meant by independent inquiry.
As for Murphy coming close to prove his case we must look at all the factors which a jury must use in determining the truth when two versions of events differ. Credibility is everything. How do you defend Wedge destroying? That alone says much. The victim never testified but Wedge reported she did, in front of Murphy and crying.
Who would you believe Dan?
Dave Wedge and the Herald?
Thats what it came down too. Who do you believe? Can you make a case that Wedge is telling the truth? Or least not lying beyond a preponderance of evidence? The Herald’s lawyers couldn’t
