The News & Observer of Raleigh claims it is being stripped of constitutional protections by a Wake County Superior Court judge’s order in a libel case that blocked witnesses and key evidence that would support a longstanding defense that truthful statements and accurate evidence can be the basis of a party’s defense in a defamation case.
A hearing on the newspaper’s appeal is scheduled today before Wake County Superior Court Judge Graham Shirley, who is presiding over his first trial involving freedom of the press — a case some court observers say is one of the biggest cases involving a state government employee in decades.
State Bureau of Investigation Special Agent Beth Desmond claims that N&O reporter Mandy Locke, the N&O, and its parent McClatchy Newspapers libeled her with untruthful and damaging statements in an August 2010 four-part investigative series.
The series highlighted widespread problems in the State Crime Lab, then under the supervision of state Attorney General Roy Cooper.
“It is settled beyond dispute that the First Amendment protects defendants from liability for defamation so long as the challenged statements are ‘substantially true,’” media lawyer John Bussian, representing the N&O, wrote in a July 29 motion.
In the pleading Bussian is asking Shirley to reconsider his ruling excluding as evidence a report that Bussian claims “is directly relevant to the question of substantial truth.”
In May, Bussian contested a motion Desmond made barring a series of witnesses and other evidence, arguing those were “directly relevant” and “admissible” at trial.
“The First Amendment protects a newspaper publisher’s ability to disseminate news about government officials by ensuring that published statements found to be ‘substantially true’ cannot expose the publisher to liability for defamation — and thereby chill core protected speech,” Bussian wrote.
“The sweep of evidence ‘relevant’ to the publishers’ substantial truth defense must be mindful of these vital underlying interests,” he wrote, noting “the weighty constitutional interests.”
The N&O’s series about the Crime Lab’s checkered history also called into question conflicting testimony Desmond gave in two trials involving a 2005 Pitt County murder case. A 10-year-old boy was shot dead, and an Ayden man was convicted of the slaying.
Desmond’s attorney claimed Locke falsely wrote 12 statements in her Aug. 14, 2010, story, and four more in a subsequent Dec. 31, 2010, story. The trial court rejected the newspaper’s request for a summary judgment to dismiss the case.
The North Carolina Court of Appeals in May 2015 ruling agreed with the N&O’s attorneys to dismiss 10 of the disputed statements because they either were cloaked in the fair reporting privilege of judicial proceedings, were factually accurate, or not libelous. Six statements were returned to the trial court for further proceedings.
Desmond contends in her court complaint she was defamed because Locke wrote “false, misleading, and scurrilous statements” about her work as an SBI firearms examiner, and engaged in “bitter, underhanded, and dishonest journalism” in the pursuit of a national writing award for which she and co-author Joseph Neff won $25,000.
She claims the writers published the articles knowing they were false, or with reckless disregard as to whether they were false. That language is crucial to the “actual malice” standard needed to prove that a government official was libeled.
Among other issues, Desmond claims severe emotional distress, mental anguish, injury to moral character and reputation, medical expenses, and said she was transferred out of the crime lab’s firearms section as a result of the news articles. She is seeking compensatory and punitive damages.
In her story, Locke wrote that Desmond examined bullets in the Pitt County murder. Desmond wrote in her lab report they were consistent with a specific type of gun, but cautioned not to rule out they could have been fired from another model of gun. Yet as a witness at trial, Desmond “concluded with ‘absolute certainty’ that they were fired from the same kind of gun,” Locke wrote.
That testimony of “absolute certainty” completely undermined the defendant’s defense that he did not fire the fatal shot, that another shooter fired first at him, and that one of the other shooter’s bullets could have struck the child.
In a court filing, Bussian said the “premises of the court’s ruling are mistaken” for excluding from the evidence a report by American Society of Crime Laboratory Directors/Laboratory Accreditation Board, the nation’s largest accrediting board in that area, and testimony from Michael Grubb, the agency’s board chairman.
The accreditation agency performed an inspection of the SBI crime lab after concerns about its work were raised.
According to its report, its inspection team “was unable to determine” whether the bullets in the Pitt County murder were fired from the same gun, case documentation lacked specific data that Desmond used multiple times in testimony, and “insufficient documentation was available in the case file for another trained examiner to support or refute the conclusions.”
That suggests Desmond “falsified the evidence” by testifying in contradiction to her lab report, as written by Locke, Bussian wrote. That evidence supports the defendant’s “substantial truth” claim, and should not be barred at trial, Bussian wrote.
Similarly, Bussian contended in court filings that Lynn Garcia, general counsel for the Texas Forensic Science Commission, should be allowed to testify as an expert witness. In a deposition, Garcia said Desmond’s “absolute certainty” testimony “is scientifically unsupportable in every area of forensic science, including DNA.”
Shirley rejected those witnesses, and others, writing that their evidence “is of very limited relevance” and some of the reports were done after the series was published.
Bussian wrote that, in attempting to dismiss the evidence, Desmond “cited no authority for the remarkable proposition that the substantial truth of the challenged statements can be measured only by evidence that predated the article.”