Opinion: Daily Journal

Newspaper’s loss offers cautionary tale to activists, advocates

Journalists aren’t the only ones who should learn a lesson from the Raleigh News & Observer’s recent loss in a multimillion-dollar libel case.

The case offers a warning to other reporters, producers, pundits, activists, and advocates: Be careful not to let your favorite “narrative” blind you as you pursue the truth.

A unanimous three-judge panel of the N.C. Court of Appeals affirmed last month a trial court’s November 2016 ruling against the N&O. The appellate judges’ decision followed years of legal battle connected with a 2010 newspaper series, “Agent’s Secret.” It focused on alleged abuses within the State Bureau of Investigation. Those abuses reportedly led to wrongful criminal convictions.

A key target of that series, SBI firearms analyst Beth Desmond, argued in court that the N&O and reporter Mandy Locke had illegally defamed her.

Because Desmond worked for a government agency, she had to prove that the newspaper did more than commit an honest mistake or engage in careless or sloppy reporting. Legal precedent forced Desmond to prove that the newspaper and Locke perpetrated “actual malice” in maligning her character.

A jury agreed that six separate statements in the series met that high bar. Jurors awarded Desmond more than $9 million, including more than $7.5 million in punitive damages.

To its credit, the News & Observer reported the Appeals Court decision in a prominently placed, 1,100-word article the morning after the ruling. Yet the newspaper’s report omitted some of the most disturbing evidence.

Twenty-two pages into her 56-page opinion in the case, Judge Donna Stroud notes that the reporter Locke first became aware of Desmond’s firearms analysis through a defense attorney, David Sutton. After unsuccessfully seeking a mistrial for a murder defendant, based in part on criticism of Desmond’s work, Sutton disparaged Desmond in communications with the reporter.

As Locke “began to put the story together,” her first draft included a quote from Sutton, the appellate opinion notes. Desmond “just made it up. She made it up because she could, and prosecutors needed her to. It’s just that simple,” according to Locke’s notes.

Desmond later argued in court that Sutton’s quote appeared to have motivated much of Locke’s work on the story. “Plaintiff’s theory was that defendant Locke had decided at this point ‘That’s what she wanted the story to be,’” the court opinion states, “but what she wanted the story to be was simply a contention from a defense attorney — not an impartial source and not an expert.”

“And this accusation — that plaintiff ‘just made it up’ — was perhaps the worst accusation possible against any witness, but particularly an agent of the SBI laboratory whose credibility is paramount when testifying regarding evidence in a murder trial.”

If the accusation were true, Desmond would have “fabricated evidence,” “perjured herself,” and “intentionally or recklessly” helped secure a wrongful conviction, the court opinion continues, “with the logical corollary that the actual murderer would remain free to commit more crimes.”

To write her story, Locke “needed experts in firearms analysis to substantiate Sutton’s claim.” Over the next dozen pages of the court ruling, Stroud documents how Locke tailored various experts’ responses to her questions so they would fit her pre-existing narrative.

Stroud and her fellow appellate judges reached a damning conclusion: “Defendant Locke’s research for the series did not support the proposed premise but ultimately showed that none of the experts defendant Locke consulted would give any opinion based upon the photographs [of bullet fragments], and none of the experts had any personal knowledge of plaintiff’s work and could give any opinion about it.”

Yet the N&O moved forward with the story, even though Locke knew an independent firearm analysis was under way, “and if she waited for the analysis, it was possible that it may confirm that plaintiff’s work was correct, thus eliminating the premise of the entire article.”

The court opinion reminds readers that First Amendment case law gives news outlets “much leeway” in reporting about public figures engaged in matters of public concern. First, there’s the stringent legal standard of “actual malice,” “which is knowledge that the publication was false or a reckless disregard for the truth.” The judges also remind us that reporters enjoy legal protection even when they make reasonable interpretations that turn out to be wrong.

“But there is a limit, and here plaintiff presented substantial and voluminous evidence that defendants exceeded that limit,” the judges conclude.

The N&O and Locke could appeal the decision, but the state Supreme Court faces no obligation to take up a case that secured a unanimous Appeals Court ruling. So the newspaper and Locke could end up paying a substantial price.

The rest of us can learn a lesson for free.

Locke made no mistake when she started looking into alleged misdeeds at the SBI. She made no mistake when she listened to a defense attorney’s concerns about one SBI analyst. She didn’t even make a mistake if she, as the court suggests, adopted that attorney’s accusations as her own theory. That theory helped drive research for her article.

But Locke ran into trouble when conversations with multiple experts failed to back up her theory. She could have adjusted the story — or dropped it — in response to new information. Instead documents linked to the lawsuit suggest Locke twisted the experts’ words to fit her preconceived theory. Evidence “tended to show that the primary objective of defendants was sensationalism rather than truth,” according to the Appeals Court.

Pundits and activists should strive to avoid that type of error. Even if there’s no multimillion-dollar court judgment on the line.

Mitch Kokai is senior political analyst for the John Locke Foundation.