2006 MLRC/NAA/NAB LIBEL DEFENSE ... - Directrouter.com

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For exclusive use of MLRC members and other parties specifically authorized by MLRC. © Media Law Resource Center, Inc.Material Falsity Interrogatory: It was not entirely clear from the interviews, but itseemed that any mistake in a story that misreports the facts was going to be viewed asmaterially false. There did not seem to be any middle ground for a mistake without it alsobeing false. They did not seem to place much stake in the “materiality” of the falsehood, justthat it was a mistake.Actual Malice: Plaintiff tried to set the stage for actual malice by using a memowritten by Armstrong in February 1997 – just weeks after the DuPage 7 indictment – thatstated “let’s put the prosecutors on trial.” Plaintiff characterized this memo as evidence ofthe “witch hunt” by The Chicago Tribune and its reporters to ruin him. According to thejurors, however, the statement had no impact. Possley’s statements in any early draft of thearticle (that plaintiff’s nickname was “the Black Knight”) did influence some jurors to thinkthat he was trying to portray plaintiff and the other members of the DuPage 7 in a negativeway – which led to their negative feelings about the paraphrase “keep your mouth shut.”None of the jurors believed that the defendants acted with actual malice, which wasdefined for them as knowledge of falsity or reckless disregard; that is, the defendant in factentertained serious doubts as to the truth of the statement. Interestingly, the pro-plaintiffalternate also stated that given that definition, she too would have had to have answered theactual malice question in the negative.General Impressions: The jurors expresses a great deal of interest in the underlyingfacts of the case and the media coverage surrounding the trial [the courtroom gallery wasfilled to capacity nearly every day]. They reported saving newspapers and searching theInternet for information on the parties and lawyers once the trial was complete. The ChicagoTribune was viewed favorably before the trial, during the trial, and after the trial.When asked about the obvious lopsidedness of the size of the defense trial team anduse of electronic media for exhibits and depositions versus plaintiff’s empty table and hisclumsy use of the Elmo, jurors said they expected that The Tribune would have suchrepresentation and that the technology was beneficial in making their work in being attentiveeasier and more interesting.Summary: The most influential dynamics leading to the verdict seemed to be: (a) nodamages; (b) Possley and the editor’s remorse about the mistake; (c) plaintiff’s Lone Rangertrial strategy; and (d) absence of any negative perceptions toward the defense witnesses.20. Assessment of Jury:The jury was attentive throughout the trial. They seemed to bond early on and wereoften heard laughing and at times playing music in the jury room (which was just outside thebox and within a few feet of the bench and witness stand). Some were openly demonstrativeduring trial: groaning, laughing, rolling their eyes, or showing outright disdain during some44
For exclusive use of MLRC members and other parties specifically authorized by MLRC. © Media Law Resource Center, Inc.of the testimony and closing arguments. In all, they were perhaps more educated than weexpected in Cook County, which does not ask for level of education on the juryquestionnaire. One woman, it was later learned, has a Masters Degree in psychology. Shewas perhaps the most pro-defense juror and was a leader in the deliberations.21. Lessons:We are still trying to figure out how to spot the “alternate juror” who, from herappearances and questions during voir dire, as well as her socio-economic background,appeared to be someone who would be anything but pro-plaintiff. After trial when we spokewith her, she also expressed surprise at herself that she found herself leaning so far to theplaintiff’s side of the case. As she noted, she is politically conservative, from an uppermiddleclass background and neighborhood, against frivolous lawsuits, her husband is alawyer, she is well read, educated, and worked before staying home to raise her children. Shefit a defense juror profile, yet she certainly was not in this instance.We also learned from the jury after trial that they appreciated the fact that Possley, theeditor, and other Tribune witnesses not only owned up to the misattribution as a mistake, butwere also sorry that the mistake happened. According to the jurors, it gave the witnessesmore credibility and they could understand how mistakes happen. It also made the plaintifflook as though he was beating a dead horse for no apparent reason other than spite.Very early in the case, the decision was made to rely on the reporters’ privilege to notidentify unnamed sources and to redact notes from interviews with unnamed sources. Themotions judge, Flanagan, upheld assertion of the privilege and several defense documentswere heavily redacted. As discovery proceeded, after denial of the summary judgments, itbecame apparent that plaintiff’s own criminal counsel was going to testify on behalf ofplaintiff and against defendants, yet he was one of the unnamed sources and he was the onewho had provided the grand jury transcript. By resting on the privilege, defendants were injeopardy of playing into several of plaintiff’s themes because the defendants could not showthey had indeed interviewed both sides in the DuPage 7 case (prosecution and defendants),contributing to the plaintiff’s case of gross negligence and bias in the research, investigation,and reporting as well as his claim that the grand jury transcript testimony was based on anunreliable source. The decision was made then to waive the privilege and documents wereproduced in unredacted form and deposition questions answered where previously theprivilege had been asserted.The fact that The Chicago Tribune acknowledged the mistake in attribution but didnot print a correction at the time troubled many of the jurors, although it did not have anybearing on their verdict. Also, this jury was not willing to regard the mistake as immaterialor inconsequential.45
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2006 MLRC/NAA/NAB LIBEL DEFENSE ... - Directrouter.com

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