Petition — Rinaldi v. Holt, Rinehart & Winston, Inc.
Supreme Court brief1977
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Supreme Court, U. $
FILED
OCT 11 i977
In THE
Supreme Court of the United States
\
Ocroser TERM, 1977
£8 “E59
Dominic 8S. Rovaxp1,
Petitioner,
) —_—V-
Hora, Rinexnart & Winston, Inc. and
Jack NEWFIELD,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF
THE STATE OF NEW YORK
Inwin N. WitP0on
135 Willow Street
Brooklyn, New York 11201
(212) 522-1282
Counsel for Petitioner
TABLE OF CONTENTS
PAGE
Opinions Below ...... RE ES SIS aaa 1
I ectchtcctectetnnaiimncnneitietnnteonamiane 2
Constitutional Provisions Involved ......................-...--0-+++ 2
ey ar <n easeamsnteiltasmcigmambageacsiilcane 3
SID insispnnhidcccibassecinsininesietibadtlanbibiciinediacdeastidebistatubasiibeiocsiidsh 5
Reasons for Granting the Writ —.......202.0.....-.e.eeeeeeeeee 13
I. The holding of the Court of Appeals that peti-
tioner had not met his burden of proof as to
the falsity of the publication was erroneous .... 13
Il. The holding of the Court of Appeals that peti-
tioner had not shown clear and convincing
evidence of malice on the part of the respon-
dents sufficient to defeat summary judgment
TE GD saseinctaccctceretrntinndieneeiintnictensiaies 25
IIR \.scniststienniptenseteeneninciviemnatinnedanliatiamiannidetlieiialitieiadlsa - 45
CrraTIoNns
Cases:
Afro American Publishing Co. v. Jaffe (D.C. Cir.),
le ST ED ei nccencnamatiivinsninstinslitnesesnpidneigitteninnes 24
Alioto v. Cowles Communications Ine. (D.C. Cal.),
8 ee Sk __,_. AEE ee 34, 43
Brandenburg v. Hayes, 408 U.S. 665 (1972) -............... 28
Brisbane v. City of New York, 6 A.D, 2d 882 (1958) 42
si
PiGE
Brown v. United States, 356 U.S. 148 (1958) ............... 28
Brown v. Walker, 161 U.S. 591 (1896) 2.000... 28
Campbell v. New York Post, 245 N.Y. 320 (1927) ........ 35
Carson v. Allied News Co. (7 Cir.), 529 F. 2d 206
EEUU: sicecietbinsiildbadanialalihtetidchseda doit dea iieathabeatinss ieatnnes 29, 35, 41
Church of Scientology v. Dell Publishing Co. (D.C.
Cal.), 362 F. Supp. 767 (1973) ........................ 29, 34, 42, 43
Cox Broadcasting Corp. v. Cohn, 402 U.S. 469 (1975) 45
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) .... 29
34, 43
Davis v. Schuchat (D.C. Cir.), 510 F. 2d 737 (1975) ....24, 45
Farr v. Pitchess (9 Cir.), 522 F. 2d 464 (1975) cert.
den, 427 U.S. 912 ...... 28
Goldwater v. Ginzburg (2 Cir.), 414 F. 2d 324 (1969)
cert. den. 396 U.S. 1049 24, 29, 36, 45
Greenbelt Co-Op Publishing Assn. v. Bresler, 398 U.S.
6, 21-22 (1970) 38
Gregory v. McDonnell Douglas Co., 131 Cal. Rep. 64,
552 P. 2d 425 (1976) 24, 38
Guam Federation of Teachers v. Ysrael (9 Cir.), 492
F, 2d 438 (1974) cert. den. 419 U.S. 872 00000. 41,42
Hall v. United States (D.C. Cal.), 314 F. Supp. 1135
(1970) .. 32
Hartley v. Conrad and Times Mirror Co. (Ct. of A>
peals, Cal.) (unreported 1976) cert, den. —— U.S.
geen TP ED: SED IEE‘ Leknceeriintitinreses Sabicetnesinnatiitelabilcianeesig 41
Hotcher v. Doubleday & Company, Inc. (2 Cir.), 551
i Te eee IEE Weikiipictitinchlbhidiidinhnndiliindantiilincditcismetetaae 35
James v. Gannett, 40 N.Y. 2d 415 (1976) 00. 36
PAGE
Kelly v. St. Michael’s Roman Catholic Church (N.Y.),
148 App. Div. 767 (1912) 32
Krauss v. Birnbaum, 200 N.Y. 130 (1910) 42
Lawyers Co-Op Publishing Co. v. West Publishing Co.
(N.Y.), 32 App. Div. 585 (1898) -................ 35
McGauthen v. California, 402 U.S. 183 (1971) -............... 28
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
| BR ee 4, 13, 36
Montandon v. Triangle Publications Inc., 45 Cal. App.
3rd 938, 120 Cal. Rep. 186 (1975) cert. den. 423
U.S. 893 . . 36
New York Times v. Sullivan, 376 U.S. 254 (1964) ...3, 5,12,
13, 19, 23, 25
Nigrone, Matter of (N.Y.), 46 A.D. 2d 343 (1974) ........ 20
Patterson v. New York, —— U.S. —— 53 L. Ed. 2d
281 (1977) 38
Paul v. Davis, 424 U.S. 693 (1976) ....02.22..-...-cececeecee-es 24, 38
People (N.Y.) v. Brust, New York Law Journal, De-
cember 2, 1976 22
People (N.Y.) v. Cook, 37 N.Y. 2d 591 (1975) —.............. 20
People (N.Y.) v. Luis, J., 51 A.D. 2d 115, 40 N.Y. 2d
990 (1976) cert. den. —— U.S. ——, 52 L.. Ed. 2d
397 a
People (N.Y.) v. Rao, 53 A.D. 2d 904 (1976) ............... 20
People (N.Y.) v. Rinaldi, 44 A.D. 2d 745 affd. 34 N.Y.
EE PN REE ies ICE eae rear es See Y A OTe 20
People (N.Y.) v. Stolzenberg, 40 Misc. od 177 (1963) 17
Phillips v. Kantor, 31 N.Y. 2d 307 (1972) .......02.000...... 41
Phoenix Newspapers Inc. v. Church, 24 Ariz. App. 287,
537 P. 2d 1345 (1975) cert. den. 425 U.S. 908 ....24, 42, 45
iv
PAGE
Rancho La Costa Inc. v. Penthouse International Ltd.
(Superior Ct. Cal. unreported (1976) cert. den. ——
U.S, ——, 53 L. Bd. 2d 246 once ceccccceeeeeeeenececeeeee 42
Rathkopf v. Walker (N.Y.), 190 Mise. 168 (1947) ........ 35
Rinaldi v. Village Voice Inc. (N.Y. 79 Misc. 2d 57 affd.
47 A.D. 2d 180 (1975) cert. den. 423 U.S, 883 0.0... 7
Rogers v. United States, 340 U.S. 367 (1951) ............... 28
Rosata v. Superior Court of California, 51 Cal. App.
3rd 190, 124 Cal. Rptr. 427 (1975) cert. den. 427
Wee GHD papstinctadnmaicnial 28
St. Amant v. Thompson, 390 U.S. 727 (1968) ................ 45
Santobello v. New York, 404 U.S. 257 (1971) —..000.0....... 18
Sillman v. Twentieth Century Fox Corporation, 3 N.Y.
2d 395 (1957) ...... 41
Sprouse v. Clay Communications Inc. (W. Va.), 211
S.E. 2d 674 (1975) cert. den. 423 U.S. 882 00000... 35
Stone v. Goodson, 8 N.Y, 2d 8 (1960) 000. 41
Talbot v. Laubheim, 188 N.Y. 421 (1907) 2020. 42
Thomas H. Maloney & Sons Inc. v. E. W. Scripps Co.,
43 Ohio App. 2d 105, 334 N.E. 2d 494 (1974) cert.
den. 423 U.S. 883 24, 42
Time Ine. v. Firestone, 424 U.S. 448 (1976) ............... 24, 40
Tisdale v. Delaware & Hudson Canal Co., 116 N.Y. 416
SIE sasteiadenies 32
United States v. Nobles, 422 U.S. 225 (1975) ............... 28
Varnish v. Best Medium Publishing Co. (2 Cir.), 405
F. 2d 608 (1968) cert. den. 394 U.S. 987 2.0... 36, 45
Vocational Guidance Manuals v. United Newspaper
Manuals Inc., 280 App. Div. 593 affd. 305 N.Y. 780
CED -ccciiccnciinentstilietinsiill van 35
—— _ —
PAGE
Zacchini v. Scripps Howard Broadcasting Co., ——
U.S. ——, 53 L. Ed. 2d 965 (1977) 2
Constitutional Provisions:
United States Constitution—Amendment I ............ 2
United States Constitution—Amendment XIV... 2
Statutes:
28 U.S.C. Section 1257 (3) -.....................- a
New York Civil Rights Law Section 79h ............ 2, 6, 27
New York Code of Criminal Procedure Sections
552, 555 17
New York Criminal Procedure Law Section 300.10 20
New York Penal Law Section 65.05 15
Miscellaneous:
Corpus Juris Secundum, Evidence Vol. 31A Sec-
i hc elt iain cemraninatnenamadenengnmememnemens 32
McKinneys New York Statutes, Commentary un-
der Penal Law Section 65.05 —
Wigmore on Evidence (Chadbourne Rev. 1972)
Section 1064 (2) ; 32
IN THE
Supreme Court of the United States
Ocroser Term, 1977
Dominic S. Rryaxp1,
Petitioner,
—
Hoxit, Rinewart & Wryston, Ino. and
Jack NEwFIeLp,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF
THE STATE OF NEW YORK
Petitioner prays that a writ of certiorari issue to the
Court of Appeals of the State of New York to review a
judgment of that Court entered on July 14, 1977. A motion
for rehearing was denied by that Court on September 7,
1977.
Opinions Below
The majority, concurring and dissenting opinions of the
Court of Appeals reversing the decision of the Appellate
Division and granting summary judgment to the respon-
dents are set forth in separate Appendix C, A5. They are
reported in 42 N.Y. 2d 369.
The majority, concurring and dissenting opinions of the
Appellate Division affirming the denial of summary judg-
ment are set forth in Appendix D, A55. They are reported
in 53 A.D.2d 839, 386 N.Y.S.2d 818.
2
The unreported opinion of the Court of first instance
denying summary judgment is set forth in Appendix E,
A66.
Jurisdiction
The final judgment of the Court of Appeals of the State
of New York, the highest state court, was entered on July
14, 1977 (Appendix A, Al). A timely motion for a rehear-
ing was denied by that Court on September 7, 1977 (Ap-
pendix B, A3).
The judgment of the Court of Appeals dismissing the
libel action of the petitioner is based on the respondents’
free press rights under the First Amendment to the Fed-
eral Constitution. Jurisdiction of this Court is invoked
under 28 U.S.C. Section 1257(3). (Zacchini v. Scripps
Howard Broadcasting Co., —— U.S. —— 53 L. Ed.2d 965
(1977).
Constitutional Provisions Involved
United States Constitution, Amendment I
“Congress shall make no law . . . abridging the freedom
of speech or of the press.”
United States Constitution, Amendment XIV, Section 1:
“. .. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States, nor shall any State deprive any person
of life, liberty, or property without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.”
Questions Presented
1. Did the petitioner, a public official, meet the burden
imposed on him by the decisions of this Court in New York
Times v. Sullivan, 376 U.S. 254 (1964) and its progeny of
showing falsity and malice on the part of the respondents
sufficient to defeat their motions for summary judgment?
2. Where the published charge that petitioner is “prob-
ably corrupt” is admitted by respondents to be based to-
tally on an indictment of petitioner for perjury and peti-
tioner has shown the falsity of such charge, did the Court
below correctly interpret the decisions of this Court in
New York Times v. Sullivan, supra, and its progeny as
requiring it to hold that the petitioner nevertheless has the
burden of proving as a general negative that he is not
“probably corrupt?”
3. Where the published charge of “suspiciously lenient
sentences” is admitted by respondents to be based on four
specific cases and petitioner has shown by the Court rec-
ords in those four cases that the charge based thereon is
false, did the Court below correctly interpret the decisions
of this Court in New York Times v. Sullivan, supra, and
its progeny, as requiring it to hold that the petitioner
nevertheless has the burden of proving as a general nega-
tive that “no sentences were unduly lenient?”
4. Where the respondents admittedly based their charge
that petitioner was “suspiciously and inexplicably lenient
to heroin dealers and organized crime figures” and “is put-
ting people (Glover) on the street who sell death for a
profit” on four specific cases and respondents knew from
the Court records in those four cases and knowingly and
purposefully omitted from their publication that the dis-
4
positions by petitioner in each of those four cases was upon
the consent and recommendation of the district attorney
and that Glover was in jail for five years and was not put
on the street, did the Court below correctly interpret the
decision of this Court in Miami Herald Publishing Co. v.
Tormillo, 418 U.S. 241 (1974), as requiring it to hold that
the choice of material to go into the book was an exercise
of editorial judgment on the part of the respondents and
thus that the knowing omissions did not evidence malice
on the part of the respondents?
5. Was it a reckless disregard for truth or falsity for
respondents in their publication to charge that petitioner
is “very tough on long-haired attorneys and black defen-
dants especially on questions of bail, probation and sen-
tencing” and that “every law enforcement agency in the
state is aware of Judge Dominic Rinaldi’s reputation for
going easy on members of the Mafia. The Joint Legisla-
tive Committee on Crime has a whole file full of suspicious
dispositions by Rinaldi in organized crime cases” and on
their motions for summary judgment to have offered noth-
ing to support such charges, thus indicating that such
charges were made without supporting basis?
6. Was it malice on the part of the respondents to have
put a heading in large type “Justice Gets A Fix” on one of
the articles about petitioner republished in their book, thus
creating the anticipation and impression in the minds of its
readers that it would show venality or corruption on the
part of the petitioner in his dispositions of the cases dis-
cussed therein, when in fact there was no claim of venality
or corruption anywhere in the text of the article, and the
author admitted on pre-trial disclosure that nowhere in the
article did he charge venality or corruption and that he had
no evidence of corruption?
Statement
The petitioner is a justice of the Supreme Court of the
State of New York. The respondent Jack Newfield (New-
field) is an editor of a weekly newspaper called the Village
Voice (Voice). Newfield wrote four defamatory articles in
Voice about the petitioner in the issues of August 31, 1972
(Appendix H, A120), October 12, 1972 (Appendix H,
A127), November 9, 1972 (Appendix H, A130) and Novem-
ber 30, 1972 (Appendix H, A132), and an article in New
York Magazine of October 16, 1972 (Appendix H, A134).
Petitioner did not commence any action on these articles
for the very pragmatic reason that under the constraint
imposed by New York Times v. Sullivan, 376 U.S. 254
(1964), he then was not possessed of proof which would
probably sustain a finding of malice in the publication of
the false articles.
After the first four of those articles were published, the
Brooklyn Bar Association made an investigation of the
eases on which Newfield based his charges against the peti-
tioner in those articles and found the charges to be false
and unfounded (Appendix Y, A195). By letters dated
November 28, 1972 (Appendices S, T, A182, 183) the
Brooklyn Bar Association advised Voice and New York
Magazine of the “results of the investigation which dis-
closes that the facts reported by the author are inaccurate,
incomplete and in many cases totally incorrect.”
The Association of the Bar of the City of New York also
made an investigation of the charges made by Newfield
against petitioner in the New York Magazine article of
October 16, 1972 that “his judicial temper softens remark-
ably before heroin dealers and organized crime figures,”
which allegations were stated to be based on the disposi-
6
tions by petitioner in three named cases, People v. Burton,
People v. Glover and People v. Vario (Appendix H, A134).
The Association of the Bar Committee obtained transcripts
of the court minutes in those three cases. It then, on De-
cember 28, 1972, interviewed Newfield about those three
cases (Appendix X, A190, Appendix DD, A251). Its Re-
port, based on the facts in those three cases, which it set
forth, and the interview with Newfield, concluded that “Mr.
Newfield failed to substantiate his charges against Justice
Rinaldi and omitted several material facts” (Appendix X,
A194).
On October 12, 1972, a Legal Aid Attorney named Jo-
seph Vincent Morello wrote a letter to New York Magazine
advising it that the court records in the Burton case show
that Newfield’s statements about that case, more elabor-
ately stated in Newfield’s Voice article of August 31, 1972
were erroneous in the respects pointed out in his letter
(Appendix U, A184). Newfield admitted that New York
Magazine forwarded Mr. Morellos’ letter to him (Appendix
CC, A232).
Thereafter, on February 25, 1973, Voice published an
advertisement in the New York Times (Appendix H, A118)
in which it referred to the articles by Newfield and repub-
lished some of the charges made in those articles against
the petitioner.
Petitioner then commenced an action against Voice and
its advertising agency on the advertisement (Appendix H,
A114). In that action, petitioner claimed that the false
commercial advertisement did not have First Amendment
protection and that, in any event, the republication therein
of the charges in the articles after receipt of the letters
from the Brooklyn Bar Association and Mr. Morello and
Newfield’s interview by the Association of the Bar on De-
cember 28, 1972 was sufficient proof of malice to deny to the
7
republication any First Amendment protection. The com-
plaint in that action alleged that the statements in the
original articles, on which the advertisement was based,
were false and attached and made the articles a part of the
complaint (Appendix H, A115).
The defendants in that action moved for summary judg-
ment which was denied (Rinaldi v. Village Voice Inc., 79
Mise. 2d 57, affirmed 47 A.D. 2d 180, 182) (1975). The Ap-
pellate Division held that the receipt by Voice of the letter
from the Brooklyn Bar Association prior to the republica-
tion was a showing of malice sufficient to preclude summary
judgment. Leave to appeal to the Court of Appeals was
denied by the Appellate Division. A petition for certiorari
to the Appellate Division was denied by this Court (423
U.S. 883). Voice in its petition for certiorari urged that
the petitioner’s proof of malice was insufficient and that
no further proceedings in the State court should ensue and
that the judgment was thus final for purpose of review by
this Court. Petitioner in his opposing brief argued that the
sufficient showing of malice requiring a trial, as held by the
Appellate Division, rendered the judgment not final. This
Court denied certiorari for want of a final judgment.
In August 1972, when Newfield’s articles in Voice and
New York Magazine were beginning to be published, New-
field and Marian Wood (Wood), an editor for respondent
Holt, Rinehart and Winston (Holt) agreed that the August
31, 1972 and the subsequent articles about petitioner would
be republished in a book entitled “Cruel and Unusual Jus-
tice” (Appendix DD, A244; Appendix EE, A263). Wood
read each of the articles as it appeared in Voice and New
York Magazine (Appendix EF, A262).
The book “Cruel and Unusual Justice” was in prepara-
tion by Holt over a period of almost two years until its
publication on April 15, 1974. During that time Wood and
8
Newfield were in continual consultation (Appendix FF,
A263). In December 1972, Newfield told Wood that he had
been interviewed by the Association of the Bar about his
New York Magazine article of October 16, 1972 about the
petitioner (Appendix EE, A268). Wood knew of rumors
that the Association of the Bar had issued its report of
that investigation (Appendix EF, A267). Wood read the
New York Times article of September 25, 1972 by Nicholas
Gage (Appendix EE, A262) in which he reported that in
the Agro case, the assistant district attorney had stated
that Agro was the “least culpable and had no prior record”
and that the pleas “in each instance are recommended and
the sentence will in all respects be adequate” (Appendix H,
A138).
Petitioner’s action against Voice was commenced in May
1973. On May 16, 1973 the New York Times published a
story about the commencement of that action in which it
stated that the “Village Voice articles on which the ad-
vertisement was based asserted that Justice Rinaldi had a
reputation for going soft on pushers especially when they
are represented by certain well-connected bail bondsmen
and lawyers. The Voice also said that the judge’s judicial
temper softens before big heroin dealers and organized
crime figures” (Appendix HH, A280). Newfield in May 1973
gave Wood a copy of the Times article about the commence-
ment of petitioner’s prior suit which alleged the falsity of
the original articles (Appendix DD, A245, 246), and told
Wood that she could get in touch with Voice’s lawyer, Victor
A. Kovner, for any information she wished about the suit
(Appendix DD, A246).
Prior to November 1973, Newfield obtained a copy of the
Brooklyn Bar Report (Appendiv DD, A249, 250) and wrote
a postscript about it for the book, which he then gave to
Wood. Wood thus knew, in November 1973, of the Brook-
9
lyn Bar Report, in her words, “clearing Rinaldi” and in-
serted in the postscript about it in the book (page 108) a
statement of the conclusion in the Report that Newfield’s
articles were false (Appendix Y, A205). Wood read the
New York Times article of April 9, 1974 reporting the con-
clusion in the Association of the Bar Report that “New-
field failed to substantiate his charges against Justice Ri-
naldi” (Appendix FF, A273) and she admitted in pre-trial
disclosure that Newfield had also then told her that that
Report had stated “that he had ‘not substantiated’ his opin-
ions regarding Justice Rinaldi’s alleged incompetence and
bias” (Appendix FF, A274). The respondents for months
thereafter continued to distribute and promote the book by
appearances by Newfield, arranged by Holt, on television
and radio (Appendix IT, A281-289).
On May 30, 1973, while the book was in preparation for
publication, the petitioner was examined in pre-trial dis-
closure in his prior action against Voice (Appendix BB,
A213). During the course of such examination petitioner
testified as to the falsity of the articles and petitioner
therein produced for inspection by Voice the court minutes
in the cases of Burton, Glover, Vario and Agro, and was
examined by Voice’s counsel with respect thereto. Peti-
tioner also produced upon such examination the letters
from Joseph Vincent Morello (Appendix U, A184) and
Leonard D. Wexler (Appendix V, A185). Newfield was
also examined in pre-trial disclosure in that action in June
and October 1973 while the book was in preparation with
respect to the contents of the court minutes in those four
cases on which he had based his charges (Appendix CC,
A231). On such examination he admitted that if he knew
when he wrote the article about People v. Burton that the
district attorney had recommended and consented to Bur-
ton’s parole on the charge, “if I knew it and withheld that
10
information it would have been unfair” (Appendix CC,
A234).
The petitioner in August 1974 commenced this action
based on the defamatory matter in the book concerning him
republished from the original articles, with some subse-
quent additions thereto, which is set forth in paragraph
“Twelfth” of the petitioner’s complaint (Appendix F,
A9%).
In its answer and amended answer in this action the re-
spondent Holt admits that during the period from April
1973 through April 1974, it had “knowledge” of petitioner’s
prior action against Voice and of “plaintiff’s sworn testi-
mony in that action” in “reliance” upon which it published
the book and based on this, claimed an equitable estoppel
against petitioner because he had not sued on the original
articles (Appendix G, A110-111).
The respondents moved for summary judgment in this
action which was denied at Special Term (Appendix E,
A66). The Appellate Division affirmed (Appendix D, A55).
The Court of Appeals, on July 14, 1977, reversed and
granted summary judgment dismissing the complaint (Ap-
pendix A, Al; Appendix C, A5). Petitioner’s timely mo-
tion in the Court of Appeals for reargument was denied
on September 7, 1977 (Appendix B, A3).
The petitioner had joined Voice as a defendant in this
action on the ground that it, as copyright owner of the
original articles, had given consent to Newfield and Holt to
republish them. Special Term dismissed as to Voice (Ap-
pendix E, A90-91) and the Appellate Division affirmed
(Appendix D, A55). The petitioner did not seek further
review of such dismissal as to Voice and that defendant is
out of the case.
11
Although at the time they republished the articles in the
book, the respondents were aware that in the four cases,
Burton, Glover, Vario and Agro, the district attorney had
consented to and recommended the dispositions, the re-
spondents nevertheless republished the charges in the
articles based on those four cases as originally written, that
in these dispositions petitioner “had acted suspiciously and
in ways that defied law and reason,” knowingly and pur-
posefully omitting to state that in each case the district
attorney had consented and acquiesced in the disposition.
They also added to the charge in the article of August 31,
1972 “So what Judge Rinaldi is doing is no small thing. He
is putting people on the street who sell death for a profit”
(Appendix H, A125) by including in the book the sentence
“Glover, remember, was not an addict but a businessman,”
(Appendix FF, A276) though they then knew from the
court minutes in Glover that Glover was in jail for five
years (Appendix L, A155).
Among the charges made in the book is that the peti-
tioner is “probably corrupt” (Appendix F, A100) and that
his sentences of heroin dealers and organized crime figures
were “suspiciously lenient” (Appendix F, A98). The Court
of Appeals agreed that these charges were libelous per se
(Appendix C, A20) and that “accusations of criminal ac-
tivity, even in the form of opinion, are not constitutionally
protected” (Appendix C, A27), but held that petitioner had
not established their falsity (Appendix C, A28).
Newfield testified in pre-trial disclosure that the charge
of “probably corrupt” was “based totally on the fact that
he (petitioner) had been indicted” and that he otherwise
had no evidence of corruption (Appendix DD, A257).
The indictment of petitioner, subsequently dismissed,
was for perjury. Even while the indictment existed, it had
no probative force and was enveloped in a presumption of
12
innocence. It thus could not validly support any charge of
probable guilt and the charge of “probably corrupt” based
thereon was necessarily false.
The Court of Appeals under what it deemed to be the
compulsion of New York Times v. Sullivan, supra, 376 U.S.
254 and its progeny went beyond this, nevertheless, and
held that “it is the plaintiff’s burden to establish that he is
not ‘probably corrupt’” (Appendix C, A28).
As to the charge that “his sentences of certain defen-
dants were “suspiciously lenient” which respondeut New-
field admitted on pre-tria! disclosure was based on the four
cases, Burton, Glover, Vario and Agro (Appendix CC,
A242), the petitioner showed by the court records in each
of these cases that these four dispositions were made on
the consent and recommendation of the district attorney
and that they were not “suspicious” dispositions. The
Court of Appeals, nevertheless, again under what it
deemed the compulsion of New York Times v. Sullivan,
supra, and its progeny, held that the petitioner has the
burden or proving that “no sentences were unduly lenient”
(Appendix C, A28).
The Court of Appeals thus placed upon the petitioner
the burden of proving the general negative that he is not
“probably corrupt” and that “no sentences were unduly
lenient,” a burden which the concurring opinion of Chief
Judge Breitel and Judge Wachtler admitted was “virtually
impossible” to meet (Appendix C, A38). The dissenting
opinion of Gabrielli, J., stated that the result “is to sum-
marily foreclose the possibility of ever bringing a libel ac-
tion to the trial stage” (Appendix C, A50).
13
Reasons for Granting the Writ
The New York Court of Appeals has incorrectly inter-
preted and applied the decisions of this Court in New
York Times v. Sullivan, 376 U.S. 254 and its progeny and
has placed upon a public official plaintiff in a libel action
an undue burden of proof which is greater than and not in
accord with that laid down by this Court. The Court below
has also incorrectly interpreted and applied the decision
of this Court in Miami Herald Publishing Co. v. Tornillo
418 U.S. 241 (1974), in holding that the knowing omission
by a publisher of crucial facts showing the falsity of the
publication, was a permissible exercise of editorial judg-
ment as to what to publish and thus not evidence of malice.
The effect of the decision below is to effectively bar any
libel suits by public officials and, as to them, to render the
First Amendment privilege of the press virtually absolute.
Since in a libel action by a public official this Court re-
views the evidence to make certain that constitutional prin-
ciples have been correctly applied (New York Times v.
Sullivan, supra), 376 U.S. at p. 285), petitioner deems it
necessary to discuss the evidence in detail showing falsity
and malice on the part of the respondents.
I,
The holding of the Court of Appeals thet petitioner
had not met his burden of proof as to the falsity of
the publication was erroneous.
Respondent Newfield wrote in the book that petitioner’s
“judicial temper softens before heroin dealers and organ-
ized crime figures” (Appendix F, A95). “During the fall of
1972, I wrote three more articles detailing suspiciously
lenient decisions by Justice Rinaldi. Two of these cases
14
involved Mafia members Paul Vario and Sal Agro, and a
third involved a narcotics dealer named Clifton Glover”
(Appendix F, A98). “I wrote four articles in the Voice and
one in New York Magazine detailing cases in which Judge
Rinaldi had acted suspiciously and in ways that defied law
and reason” (Appendix F, A100). “What Judge Rinaldi is
doing is no small thing. He is putting people on the street
who sell death for a profit (Glover, remember, was not
an addict, but a businessman)” (Appendix F, A98).
The cases which Newfield referred to as having “de-
tailed” were People v. Burton, People v. Glover, People v.
Vario and People v. Agro. In his pre-trial disclosure in the
prior action of Rinaldi v. Voice, Newfield testified that his
charge that petitioner was suspiciously lenient to heroin
dealers and organized crime figures “was based on my
previous writing about the Burton, Glover, Vario and Agro
eases primarily” (Appendix CC, A242) and that when he
wrote such statement he had no other specific cases in mind
(Appendix CC, A242-243).
Whether such charge of “suspicious leniency,” based on
those four cases, is true or false is best and conclusively
determined from the Court records in those cases. The
petitioner on his pre-trial disclusure in the prior action of
Rinaldi v. Voice, and in this action, produced the court
minutes in those four cases.
The court minutes in People v. Burton (Appendix J,
Al41) show that Burton had been released by another
judge on bail of $3000 on a drug charge. When he was
arraigned before petitioner on a related bribery charge,
the assistant district attorney stated that “in view of the
fact that he is on bail on two other charges and this bribery
charge emanates from those two others, we will have him
15
available, I would recommend parole.”* Petitioner, accord-
ingly, paroled the defendant on the bribery charge. There
is, thus, no basis for the charge that this was “suspicious.”
All that was before petitioner was a routine bail arraign-
ment, not the disposition of the indictment, on which he
accepted the recommendation of the district attorney as to
bail.
In People v. Glover, the court minutes (Appendix L,
A149) show that Glover had just received a five year
federal sentence on a robbery conviction and that peti-
tioner postponed Glover’s case until the time to appeal
from the federal sentence had expired. Then, with the ac-
quiescence of the district attorney, to dispose of the case,
he accepted a guilty felony plea from Glover with no im-
position of any additional time in jail, since Glover would
be in federal jail for the next five years. Petitioner im-
posed the sentence on Glover of a conditional discharge
and Glover was then taken from the courtroom in the
custody of federal marshals to serve that five year sen-
tence (Appendix L, A155, Appendix DD, A252). The as-
sistant district attorney acquiesced in the sentence (Ap-
pendix M, A159).
Under New York Penal Law Section 65.05, a conditional
discharge was not permissible in a narcotics case. The
reason for this is stated in the Commentary under Mc-
Kinney’s Statutes, Penal Law, Section 65.05, as follows:
“The sentence of conditional discharge provides the
court with an appropriate disposition where it wishes
to impose specific obligations upon the offender but
where probation supervision is unnecessary or inap-
propriate.
* The assistant district attorney stated in an affidavit that this
was his practice as to bail in related cases (Appendix K, A148).
16
The sentence of conditional discharge cannot be
used . . . as a sentence for any felony dealing with nar-
cotics. In these cases the sentence must be either pro-
bation or imprisonment.
The purpose of the aforesaid restrictions is to as-
sure some sort of supervision of persons who commit
such crimes irrespective of the circumstances in-
volved.”
The restriction against conditional discharge, requiring
supervision of the defendant, did not envision the unusual
circumstances in Glover. A sentence of probation for pur-
pose of supervision, which petitioner had discretion to im-
pose, was inappropriate, as petitioner stated (Appendix L,
A155-156), because Glover would be under supervision in
a federal jail. Petitioner could have given Glover a sen-
tence concurrent with the federal sentence, but under the
circumstances, a conditional discharge, though not permis-
sible in a narcotics case, was the most practical one. The
district attorney evidently agreed. An article in the New
York Times dated November 15, 1973, reported that the
State Select Committee on Crime was investigating 247
unauthorized conditional discharges imposed by a number
of Supreme Court justices, one of which was stated to be
the Glover sentence by petitioner. The article states that
“Eugene Gold, the District Attorney of Brooklyn, said
through a spokesman that in every instance where we be-
come aware of an illegal sentence, we move to correct it.”
He never moved to correct the Glover sentence. The nub
of respondents’ charge that, by his sentence of Glover,
petitioner was putting him on the street to sell death for a
profit was shown tu be false. There is thus no basis for
respondents’ charge that petitioner’s sentence of Glover
was “suspiciously lenient.”
17
In People v. Vario, the court minutes (Appendix N,
A160) show that the case involving Salvatore Vario, James
Marinacci and Benjamin Greenfeder came on before peti-
tioner four years after a conviction on a prior three
months’ trial before another judge had been reversed be-
cause of illegal wiretaps which were suppressed by the
Appellate Division. The district attorney stated on the
record that because of the suppressed evidence and the
fact that the case was four years old, he had grave doubt
that he could get a conviction and for this reason he recom-
mended the acceptance of a misdemeanor plea from the de-
fendants (Appdendix N, A161-162). Petitioner then ac-
cepted such pleas. Salvatore Vario, who had spent over a
year in jail pending appeal, received a suspended sen-
tence. Greenfeder and Marinacci were sentenced to a fine
of $500 or six moxths in jail. As to Paul Vario, he was
not in the indictment with the others. He was indicted
for attempting to bribe an investigator to obtain his
brother Salvatore’s release on bail, pending appeal, which
was a legal impossibility because Salvatore was prohibited
appeal bail by statute since he had a previous felony con-
viction (Appendix O, A169; New York Code of Criminal
Procedure Sections 552, 555 (in effect in 1967); People v.
Stoleenberg (N.Y.) 40 Misc.2d 177 (1963)). As to Paul
Vario, the district attorney stated that his case also de-
pended on suppressed wiretaps, (Appendix N, A164) and
he recommended a misdemeanor plea as to him also on
which he was sentenced to a fine of $250 or three months
in jail. In view of the district attorney’s recommendation
of a misdemeanor plea because of the weakness of his
case, the record does not support respondents’ charge that
the misdemeanor plea and sentence was “suspiciously le-
nient,” and that “Judge Rinaldi caused a local scandal
when he permitted three prominent organized crime figures
charged with bribery and conspiracy to plead guilty to
18
misdemeanors and let them go free with only $250 fines”
(Appendix F, A95-96).
In People v. Agro, the court minutes (Appendix P,
A172) show there was a large number of defendants, who,
except for Agro, wished to plead guilty. Agro insisted he
was innocent and would not plead. The district attorney
did not wish to try the case only as to Agro (Appendix
BB, A226). He stated that Agro was the least culpable
and had no prior record and that if Agro would plead to a
misdemeanor, he, the district attorney, would recommend
a suspended sentence (Appendix R, A180, 181). Agro
agreed to take the plea if the judge would promise him the
suspended sentence. On the district attorney’s recommen-
dation, the petitioner made the promise and later on sen-
tence date kept it as he was then required to do under
Santobello v. New York, 404 U.S. 257, 262 (1971). Since the
plea and sentence were as recommended by the district at-
torney, the Agro case in no way supports respondents’
charge of “suspicious leniency.”
The Brooklyn Bar Association made an examination of
the court records in these cases on which Newfield based
his charge of “suspicious leniency to heroin dealers and
organized crime figures” and made in a Report of such
investigation (Appendix Y, A195) its conclusion that the
magazine and newspaper articles are “untrue, misleading,
inaccurate, a misrepresentation and contrary to the true
facts” (Appendix Y, A198).
The Association of the Bar of the City of New York also
investigated and obtained copies of the court minutes in
these cases (Appendix X, A192) and interviewed Newfield
about them (Appendix X, A190, Appendix DD, A251). It
concluded in its Report that “Mr. Newfield failed to sub-
stantiate his charges against Justice Rinaldi and omitted
several material facts” (Appendix X, A194).
19
The petitioner thus made a clear and convincing showing
that the charge of “suspicious leniency” admitted by re-
spondents to be based on these four specific cases was
false. The Court below held nevertheless, under what it
deemed the compulsion of New York Times v. Sullivan, and
its progeny that petitioner must establish the impossible
negative that “no sentences were suspiciously lenient.” To
establish this, the petitioner would have to resurrect all of
the dispositions made over many years on the bench and
then litigate with the respondents the facts in each case to
show that each disposition was not “suspicious.” If he
should, perchance, omit any case, the respondents would
claim it was an intentional omission in order to conceal
it. Aside from the fact that this would prolong this libel
case for years, the practical impossibility of it is apparent.
It is, in any event, irrelevant to this case where the re-
spondents admittedly based their charge on petitioner’s
dispositions in the four specific cases and this is all the
petitioner should be required to establish as false.
The charge that petitioner is “probably corrupt” was not
in the orginal articles but was added in the book after the
petitioner was indicted for perjury on November 12, 1973.
With respect to the original articles Newfield had testified
on pre-trial disclosure in the prior case of Rinaldi v. Voice
that “In none of those cases do I allege corruption or
venality”, “I have no evidence of corruption” (Appendix
CC, A241). In his pr-trial disclosure in this case he testified
that his charge of “probably corrupt” was “based totally”
on the indictment and that he otherwise had no evidence
of corruption (Appendix DD, A257).
The petitioner had been indicted on three counts of
perjury and one count of obstruction of justice which is
based on the three alleged perjuries (Appendix JJ, A290).
The first two counts in the indictment were dismissed on
20
motion (People v. Rinaldi, 44 A.D. 2d 745 affd. 34 N.Y. 2d
843) (1974). As to the third and fourth counts, the trial
judge (Murtagh) made a statement on the record in the
absence of the jury, press and public, that there was no case
and that he should dismiss it, but that since a judge was
involved, he thought there should be a jury verdict but that
“in the unlikely event” there should be a guilty verdict, he
would set it aside. The jury acquitted.
An indictment is no longer in existence after acquittal or
dismissal (People v. Louis J. dissenting opinion 51 A.D.
2d 1, 15 on which reversed in 40 N.Y. 2d 990, 992 (1976)
cert. den. —— U.S. —— 52 L. Ed. 2d 397).
Even when the indictment existed it was of no probative
force (People v. Cook, 37 N.Y. 2d 591, 596 (1975). An in-
dicted defendant is presumed to be innocent and the trial
court must so charge the jury (New York Criminal Pro-
cedure Law Section 300.10). Therefore, a charge in an
indictment cannot in any way be said to be true from the
fact of the indictment itself.
The grand jury indicted petitioner for perjury, not cor-
ruption. The preamble to the indictment alleges that the
grand jury was investigating in People v. Gomes, whether
petitioner had been criminally influenced to impose a lenient
sentence and in People v. McCauley whether the petitioner
had been part of a scheme to unlawfully reduce McCauley’s
sentence on the basis of a forged document submitted to the
Court (Appendix JJ, A290, 295). But this is purely rhet-
orice by a special prosecutor, Maurice Nadjari, since thor-
oughly discredited’ (See, for example, Matter of Nigrone,
46 A.D. 2d 343 (1974) ; People v. Rao, 53 A.D. 2d 904 (1976).
In the Gomes case, the minutes showed that in accepting
the guilty plea, petitioner told the defendants that in sen-
tencing, he would be guided by the probation report. The
probation report recommended probation and no jail sen-
- ED
CAR ee SE
21
tence. Petitioner told the defendants that although he had
said he would be guided by the probation report, he was
surprised by it and would not follow it. He sentenced the
defendants to jail terms. Nadjari suppressed the Gomes
minutes before the grand jury.
In the McCauley case, the minutes showed that upon
McCauley’s claim thai he was wrongfully sentenced as a
third felony offender, he submitted a federal certificate
which showed him to be a second felony offender. The dis-
trict attorney stated that he did not have his copy, it was
missing, of the certificate submitted when McCauley was
originally sentenced which showed McCauley to be a third
felony offender. Petitioner told the assistant district at-
torney to go over, during recess, to the Federal Court near-
by, to check it out. He came back and told petitioner that
McCauley’s certificate was correct and petitioner resen-
tenced McCauley as a second felony offender. The certifi-
cate later turned out, after McCauley’s death in jail, to be
a forgery. The McCauley minutes were likewise suppressed
by Nadjari before the grand jury.
The petitioner waived immunity and testified before the
grand jury. He also answered a detailed financial ques-
tionnaire and gave the special prosecutor and the grand
jury all the bank and financial records of himself and his
wife for the past three years. The special prosecutor did
not ask petitioner a single question before the grand jury
whether he was bribed or corruptly influenced in either the
Gomes or McCauley case or of any alleged contact with the
defendants in those cases or their attorneys or anyone else
on their behalf as to any illicit influence or bribery. In-
stead, the special prosecutor confined himself to questions
of the petitioner which he thought might lay the basis for
the perjury charges.
22
In People v. Brust (New York Law Journal December 2,
1976 (pages 12-13) Sandler, J. in dismissing an indictment
against a judge for perjury, which was presented to the
grand jury by the same assistant special prosecutor as in
the Rinaldi case,* stated:
“Nor can one realistically exclude the possibility that
the prosecutor was encouraged to form the opinion
that the defendant was lying by his awareness that the
underlying facts could not support an indictment for
bribery.
“Having formed that conclusion he diverted the ques-
tioning from efforts to learn the truth of the matters
under investigation into a careful systematic effort to
develop and preserve perjury counts.
“I can think of no reason for not asking that ques-
tion other than the obvious one, reflected throughout
the examination, that the prosecutor was interested in
a perjury indictment, not in developing accurate in-
formation.”
The Court of Appeals agreed that the charges made by
the respondents in this case are libelous per se (Appendix
C, A20) and that they are charges of “illegal and unethical
actions: and that “accusations against a judge of criminal
activity, even in the form of opinion are not constitutionally
* In the Rinaldi case Nadjari himself ap before the grand
jury, recalling the two witnesses as to the McCauley case who had
on his assistant’s interrogation not testified sufficiently to show
perjury and pressured them on their testimony by leading ques-
tions. Nadjari had in his possession the McCauley minutes sup-
pressed by him before the grand jury which showed a direct con-
tradiction between one witness’ statement in that case and his
testimony before the grand jury. Nadjari did not ask any ques-
tions of the witness before the grand jury as to his patent perjury.
This apparently was the pressure applied to the witness before
recalling him before the grand jury.
ae Gwe RSee NE
BOOP NG OT EID Mm
23
protected” (Appendix C, A27). Yet, although the respon-
dents admitted that the charge of “suspiciously lenient”
was based on petitioner’s dispositions in four specific cases
and the petitioner had demonstrated the falsity of such
charge by the strongest possible proof, the court records
in those four cases, and although the respondents admit
that the charge of “probably corrupt” is “based totally”
on the indictment and though a charge that an indicted
person is “probably guilty,” from the fact of the indict-
ment, is false, the Court of Appeals nevertheless held that
it is petitioner’s burden to establish the general negative
that he is not “probably corrupt” and that “no sentences
were unduly lenient” (Appendix C, A28).
The Court of Appeals stated that the acquittal on the
indictment “involved dispositions other than the ones in
issue in this case” and that Newfield’s overall accusations
have not been rebutted by anything more than a general
denial of wrongdoing. Hence there are no evidentiary
facts which would support plaintiff’s claim that Newfield’s
accusations are false” (Appendix ©, A28, 29). This hold-
ing is made in the face of respondents’ admission that their
charge of “probably corrupt” was based solely on the
indictment involving those “other dispositions” and that
the dispositions “in issue in this case” were in the four
specific cases on which the respondents based their charge
of “suspicious leniency” which charge was established by
petitioner, from the court records in those fuur cases, to be
false.
What the Court of Appeals is requiring of a public offi-
cial in a libel case is that he must bear the impossible
burden of establishing the general negative of a charge of
criminal misconduct. The Court of Appeals construes this
Court’s decisions in New York Times vy. Sullivan and its
progeny to so require. If the Court of Appeals’ interpreta-
24
tion and application of this Court’s decisions is correct,
then the press has a virtually absolute immunity against
libel actions by public officials.
Though the Court below agrees (Appendix C, A20) that
the charge of criminality is libelous per se (Paul v. Davis,
424 U.S. 693, 697 (1976); Thomas H. Maloney & Sons, Inc.
v. E.W. Scripps Company (1974) 43 Ohio App. 2d 105, 334
N.E. 2d 494, 499 (1974) cert. den. 423 U.S. 883; Goldwater
v. Ginzburg (2 Cir.) 414 F. 2d 324 (1969) cert. den. 396 U.S.
1049; Davis v. Schuchat (D.C. Cir.) 510 F. 2d 731, 737, 738
(1975); Afro American Pub. Co. v. Jaffe (D.C. Cir.) 366
F. 2d 649, 655 (1965); Phoenia Newspapers Inc. v. Church
24 Ariz. App. 287, 537 P. 2d 1345 (1975) cert. den. 425
U.S. 908), and that “no First Amendment protection en-
folds false charges of criminal behavior” (Appendix C,
A28), (Gregory v. McDonnell Douglas Co. 131 Cal. Rep.
64, 552 P. 2d 425, 430) (1976), the Court of Appeals, never-
theless, holds that the publisher is not required to offer
any basis for his libelous per se criminal charges, but that
the public official must prove the negative of their falsity.
(Cf. Time Inc. v. Firestone, 424 U.S. 448, 459 (1976) where
the burden of proof as to the correctness of its interpreta-
tion of a court record was put on the publisher.)
Under the decision of the Court of Appeals in this case,
a newspaper, without any support therefor, could freely
publish of a public office holder that he is a sex pervert or a
rapist. The burden, impossible of being met, is then on the
public official, in a libel action, to establish, beyond a
general denial which the Court of Appeals holds to be in-
sufficient (Appendix C, A28-29), that he, in his lifetime,
committed no acts of sex perversion or rape. The pub-
lisher, being not required to show any support for the
defamation, is then entitled to a dismissal of the com-
ee a ee = =
25
plaint on the basis of plaintiff’s obvious inability to prove
a negative. The result is deemed by the Court of Appeals
te be compelled by the decisions of this Court in New York
Times v. Sullivan and its progeny. Such interpretation
and application of this Court’s decisions is plainly wrong.
Heretofore, when a person has been indicted, no news-
paper has dared to go so far as to publish that he is prob-
ably guilty. The decision of the Court of Appeals in this
case now permits the press to so publish with impunity and
we can be sure that, freed from past restraints, the news
media will now do so with relish and abandon. The result
will be that few indicted defendants will be able to get a
fair trial.
Il.
The holding of the Court of Appeals that petitioner
had not shown clear and convincing evidence of malice
on the part of the respondents sufficient to defeat sum-
mary judgment was erroneous.
A.
In his pre-trial disclosure in the prior action of Rimaldt
v. Voice, the respondent Newfield testified that prior to his
writing the original articles in 1972, the Glover sentence
had been mentioned at a hearing by the Joint Legislative
Committee on Crime (Appendix CC, A239) and that he had
read a Daily News article and editorial (Appendices Z and
AA, A207, 211) which mentioned petitioner’s name, and
nothing more, but which was based on the mention of the
Glover case by the Committee (Appendix CC, A239). New-
field’s information, prior to writing the original articles as
to the Burton bail hearing, came from the police officer
(Appendix F, A99, Appendix H, A121). His information
26
as to the Vario and Agro cases came from the Gage article
in the New York Times of September 25, 1972 (Appendix
CC, A235). (In that article Gage had stated that in Agro,
the plea and sentence were on the recommendation of the
district attorney (Appendix H, A138-139). Thus, Newfield
even then became aware of this (Appendix CC, A236) but
omitted it from the article and from its republication in the
book (Appendix CC, A237-238).
Newfield wroie in the book that when Patrolman David
in 1972 told him of the Burton case (Appendix DD, A254),
“T spent the next several weeks carefully analyzing records
of Judge Rinaldi’s previous dispositions.” He then con-
tinued by stating what this “careful analysis” purported to
disclose (Appendix F, A99). On pre-trial disclosure this
alleged “careful analysis of records of petitioner’s previous
dispositions” was exposed as a fraud. There was no such
several weeks analysis and he did not check the court file
in a single case (Appendix DD, A254, 257). But since this
statement in the book concludes with the statement that, as
a result of such analysis, “I wrote four articles in the Voice
and one in New York Magazine detailing cases in which
Judge Rinaldi had acted suspiciously and in ways that de-
fied law and and reason,” (Appendix F, A100) it is clear
that this purported “analysis of the records” preceded the
writing of the original articles about Burton, Glover, Vario
and Agro and referred to those cases and he did not write
about any other cases after that.
In his pre-trial disclosure in the prior action of Rinaldi
v. Voice, Newfield testified that his charges against peti-
tioner in the original articles were also based on interviews
with lawyers and law enforcement agencies. But he refused
to divulge their names, based on New York Civil Rights
Law Section 79h, which provides that “no professional
journalist . . . employed or associated with any newspaper
27
... Shall be adjudged in contempt by any court . . . for re-
fusing or failing to disclose any news or the source of any
such news coming into his possession in the course of
gathering or obtaining news for publication . . .” A motion
was made to preclude the defendant Voice in that action
from offering evidence on the trial as to such undisclosed
sources. The Court, on that motion, held that Newfield
should disclose such sources if the defendant intended to
offer them on the trial. On re-examination, pursuant to
such direction, Newfield testified that two of his sources
were Assistant District Attorney Charles J. Hynes and
Jerome McKenna, Counsel to the Joint Legislative Com-
mittee on Crime. When asked if Hynes had given him any
specific cases, Newfield said Hynes had not (Appendix DD,
A257). When asked what McKenna had told him about any
cases which he said were in the Committee file, Newfield
answered “I don’t remember” (Appendix DD, A258). As
to the other claimed souives, Newfield persisted in his re-
fusal to divulge. An order was then made by the Court
precluding the defendant from introducing any evidence
or using any witnesses in any way relating to the refused
to disclose sources. In this action, after similar refusal to
testify as to such sources for the original articles, a similar
order of preclusion was made.
The claim of alleged sources is one of defense on the issue
of malice. Petitioner, in his pre-trial dise!osure, sought to
discover information as to any such possible defense in his
preparation for trial. Petitioner was not required to and
had no intention, in his affirmative case, of introducing any
evidence as to any of Newfield’s claimed sources, but only
in rebuttal if any such evidence was offered by Newfield.
Petitioner stated on his motion to preclude that he believed
that Newfield was inventing such sources and was covering
this up by invoking Civil Rights Law, Section 79h. Witness
Newfield’s exposed fraud in his claim of having spent
28
several weeks carefully analyzing records of petitioner’s
dispositions (Appendix DD, A254-257) and his admitted
failure to look at the court files in the four specific cases
he wrote about in the same courthouse in which he claimed
to have interviewed lawyers.
Since reliance on sources is a matter of defense, the de-
fendants had the choice of producing such evidence or as-
suming the risk, on claim of confidentiality, of not offering
it, and thus taking the consequences of such choice of for-
going such defense. Obviously, Newfield could not have it
both ways and on the trial testify that he had anonymous
sources and then refuse to answer any questions on cross-
examination as to them. The protection afforded Newfield,
against contempt, was purely a statutory one. Refusal to
name sources is not a constitutional privilege (Branden-
burg v. Hayes, 408 U.S. 665 (1972); Farr v. Pitchess, 522
F. 2d 464 (1975) cert. den. 427 U.S. 912; Rosata v. Superior
Court of California, 51 Cal, App. 3rd 190, 124 Cal. Reptr.
427 (1975) cert. den. 427 U.S. 912). Even a constitu-
tional privilege is waived by the giving of any testimony
at the trial as to the privileged matter (Brown v. United
States, 356 U.S. 148, 155-156 (1958); Rogers v. United
States, 340 U.S. 367, 373 (1951); United States v. Nobles,
422 U.S. 225, 240, 242 (1975); Brown v. Walker, 161 U.S.
591, 597 (1896) ; McGauthen v. California, 402 U.S. 183, 215
(1971).
The foregoing alleged second hand sources about the
Burton, Glover, Vario and Agro cases which Newfield
claimed to have relied on in writing his original articles,
became irrelevant and ineffectual when, in the petitioner’s
prior action the respondents became aware of what actually
happened from their reading of the court minutes in those
four cases made a part of petitioner’s disclosure in that
prior action.
29
Petitioner’s claim of malice on the part of the respon-
dents in this case is based on such admitted so acquired
knowledge on their part of the contents of such court min-
utes and their knowledge of the reports of the Association
of the Bar (Appendix X, A189) and the Brooklyn Bar As-
sociation (Appendix Y, A195) finding the falsity of the
articles republished in the book and the Morello and Wex-
ler letters (Appendices U, V, A184, 185) and the interview
of Newfield by the Association of the Bar on December 28,
1972 (Appendix X, A190) and the New York Times article
on May 16, 1973 (Appendix HH, A279), all of which ad-
vised the respondents that their intended republication
would be a false publication and that the second-hand in-
formation purported to have been relied on by Newfield
in writing the original articles could no longer be relied
on to support the charges against petitioner made in the
original articles when they were republished in the book.
The book “Cruel and Unusual Justice” was in prepara-
tion by Holt over a period of almost two years. The articles
repeated in the book had already been published and were
not “hot news” and there was no urgency about republica-
tion (Curtis Publishing Co. v. Butts, 388 U.S. 134, 155
(1967) ; Goldwater v. Ginzburg, 414 F.2d 324, 339 (1969)
cert. den., 396 U.S. 1049; Carson v. Allied News Co., 529
F.2d 206, 211 (1976); Church of Scientology v. Dell Pub-
lishing Co., 362 F.Supp. 767, 769, (footnote 1) (1973). Holt’s
editor Wood was in constant consultation with Newfield
during this period about the contents of the book (Appen-
dix FF, A263). This included the period from May 1973
when petitioner commenced his prior suit, which was pend-
ing all during that period to April 15, 1974 when the book
- was published. Wood knew that the petitioner’s prior suit
involved the falsity of the identical articles which were to
be republished in the book, and she thus obviously had the
30
greatest interest in what was shown in that prior lawsuit
about the falsity of these articles.
In his pre-trial disclosure on May 30, 1973 in the prior
action of Rinaldi v. Voice, at which respondent Newfield
was present, petitioner produced the court minutes in the
four cases of Burton, Glover, Vario and Agro and peti-
tioner was examined by Voice with respect thereto (Ap-
pendix BB, A213). In the course of that examination,
petitioner demonstrated to Voice and Newfield the falsity
of their published charges against petitioner based on
those cases. In addition, on said examination, petitioner
produced copies of the letters from Morello (Appendix U,
A184); and Wexler (Appendix V, A185) to New York
Magazine pointing out the falsity of what Newfield had
written about the Burton and Vario cases.
In his pre-trial disclosure examinations in the prior
action in June and October 1973 and in this action (Ap-
pendix DD, A247-248) Newfield admitted that he had read
the court minutes in those four cases produced by peti-
tioner and the Morello, Wexler and Brooklyn Bar Associa-
tion letters and he admitted in disclosure in the prior ac-
tion that if he knew when he wrote the original article
about People v. Burton that the district attorney had rec-
ommended Burton’s release without additional bail, he
would have put that in the story “in plain fairness” and
that “if I knew it and withheld that information, it would
have been unfair” (Appendix CC, A234). Despite this ad-
mission, he failed to include it in the book in which the
article was thereafter republished as originally written.
Newfield also admitted that his omissions were not due
to any space restrictions imposed on him (Appendix OC,
A238).
Newfield admitted that he had, prior to the republication
of the articles in the book, obtained a copy of the Brooklyn
31
Bar Association Report (Appendix DD, A249-250) point-
ing out the inaccuracies in his articles based on the Burton,
Glover and Vario cases (Appendix Y, A197-205). Newfield
also admitted that on December 28, 1972 he had been inter-
viewed about his article based on those cases by the As-
sociation of the Bar and that when the substance of its
Report was published in the New York Times on April 9,
1974, he obtained a copy of its Report (Appendix DD,
A250, 251).
In the original article of August 31, 1972 about the Bur-
ton and Glover cases, Newfield wrote (Appendix H, A125):
“So what Judge Rinaldi is doing is no small thing.
He is putting people on the street who sell death for a
profit.”
Prior to the republication of this article in the book,
Newfield knew from his reading of the court minutes in
Glover that Glover was in a federal jail for five years and
had not been put on the street, and he so admitted (Ap-
pendix DD, A252). Yet he deliberately had Wood add to
the article in the book after the above-quote from the
original article, the sentence “Glover, remember, was not
an addict but a businessman (Appendix FF. A276). On
his pre-trial disclosure in this action he blandly testified
that he meant Burton, that he could not have been refer-
ring to Glover because he knew Glover was going to the
Federal penitentiary (Appendix DD, A252-253). Respon-
dent Holt, from its knowledge of the Court minutes in
Glover which it had obtained from petitioner’s disclosure
in the prior action, also knew this inclusion as to Glover
to be false.
The respondent Holffin its answer and amended answer
admitted under oath that it knew of petitioner’s prior ac-
tion in April 1973, when it was commenced and also of
32
“plaintiff’s sworn testimony in that action” upon “reliance”
on which it published the book (Appendix G, A110-111).
The petitioner’s complaint in that prior action annexed
copies of the advertisement which repeated statements from
the original articles and the original articles themselves,
which are alleged in that complaint to be false (Appendix
H, A115).
The respondent Holt’s so admitted knowledge of peti-
tioner’s pre-trial disclosure testimony in the prior action
necessarily included, besides knowledge of his testimony
as to falsity, knowledge of the contents of the Court min-
utes in the four cases produced by petitioner on such
examination, as well as the letters from Morello and Wex-
ler (Appendices U, V, A184, 185) which plainly brought
home to Holt the knowledge that the charge of “suspicious
leniency” to heroin dealers and organized crime figures
based on those four cases was false.
A sworn admission in a pleading is the strongest kind of
evidence (Tisdale v. Delaware & Hudson Canal Co., 116
N.Y. 416, 419 (1889) ; Kelly v. St. Michaels Roman Catholic
Church (N.Y.), 148 App. Div. 767, 771 (1912); Hall v.
United States (D.C. Cal.), 314 F. Supp. 1135 (1970); Wig-
more on Evidence (Chadbourne Rev. 1972) Section 1064
(2); 31A Corpus Jur. Second, Evidence, Section 301).
Also, Newfield testified on pre-trial disclosure that he
gave Wood a copy of the article in the New York Times of
May 16, 1973 (Appendix DD, A245-246) about the com-
mencement of petitioner’s prior action against Voice, which
states (Appendix HH, A280):
“The Village Voice articles on which the advertise-
ment was based asserted that Justice Rinaldi had a
‘reputation for going soft on pushers especially when
they are represented by certain well-connected bonds-
men and lawyers.”
33
“The Voice also said that the judge’s ‘judicial tem-
per softens before big heroin dealers and organized
crime figures.’ ”
Newfield testified on pre-trial disclosure that at the time
he gave Wood a copy of the Times article of May 16, 1973,
he gave Wood the telephone number of Voice’s attorney in
that action and told her to get in touch with him for in-
formation about that suit (Appendix DD, A245). Wood
admitted this, (Appendix FF, A272) but said she never
did so.
Wood, in her pre-trial disclosure, admitted that prior to
the publication of the book she was aware that there was a
Brooklyn Bar Association Report (Appendix EE, A266)
in her own words “clearing Rinaldi” (Appendix EE, A267)
and that she in November 1973 received from Newfield the
postscript which is published in the book (p. 108) stating
that the Brooklyn Bar Association attacked Newfield’s
articles as “malicious, unfounded and irresponsible.” But
she claimed that despite this, she never asked Newfield to
let her read his copy of the Report.
Wood admitted that she read the New York Times article
of April 9, 1974 reporting that the Association of the Bar
Report stated that Newfield had “not substantiated” his
charges against Judge Rinaldi (Appendix FF, A273) and
that when Newfield obtained a copy of that Report on that
day (Appendix DD, A250), he told her “that the Report
had stated that he had not substantiated his opinions re-
garding Justice Rinaldi’s incompetence and bias” (Appen-
dix FF, A274).
Wood admitted that she read Gage’s Times article of
September 25, 1972 (Appendix EE, A262) which stated as
to Agro that the assistant district attorney had stated that
Agro was the least culpable and had no prior record and
*
34
recommended the plea and sentence (Appendix H, A138-
139). She then read Newfield’s article of October 12, 1972,
admitted by Newfield to be based on Gage’s Times articles
(Appendix EE, A262), in which Newfield stated that “Agro
pleaded guilty and was given a suspended by Judge
Rinaldi” and omitted, what he knew from the Gage article,
that the assistant district attorney had recommended the
plea and sentence. Yet, in editing the book, Wood left un-
changed therein the statement by Newfield (Appendix F,
A98) :
“During the fall of 1972, I wrote three more articles
detailing suspiciously lenient decisions of Justice
Rinaldi. Two of these cases involved Mafia members
Paul Vario and Sol Agro and a third involved a
narcotics dealer named Clifton Glover.”
It is plain from the foregoing that respondent Holt had
clear notice of the falsity of its publication about the peti-
tioner and made no further effort to investigate. This
Court has held that failure to further investigate after
notice of falsity constitutes a reckless disregard for truth
or falsity sufficient to constitute malice (Curtis Publishing
Co., v. Butts, swpra, 388 U.S. 130, opinion of Harlan, J.
page 162, footnote 23; opinion of Chief Justice Warren
pages 169-170, opinion of Brennan, J. page 172; Church of
Scientology v. Dell Publishing Co. (D.C.Cal) 362 F. Supp.
767, 769-770) (1973); Alioto v. Cowles Communications,
Inc. (N.D. Cal.) 430 F. Supp. 1363, 1371 (1977).
B.
Newfield testified as to the manuscript “We went over
it and if she (Wood) had any questions I would have to
convince her that it was right. She was a professional
editor.” (Appendix D, A246-247). In editing the August
35
31, 1972 Voice article for inclusion in the book, Wood saw
the heading in large type, “Justice Gets A Fix” (Appendix
H, A120) which gives the anticipation and impression to
the reader that the article would report venality or corrup-
tion on the part of the petitioner. An experienced editor
would necessarily say to the author, “Now, wait a minute
you don’t show any ‘fix’ in the article,” (as Newfield had
admitted, Appendix CC, A241) and any responsible editor
would then say “the heading must go, we know it is a false
heading.” Wood, however, knowingly repeated the false
and defamatory heading in the book (Appendix I, A140).
This constitutes malice (Sprouse v. Clay Communications
Inc. (Sup. Ct. of App. W. Va. 1975) 211 S.E. 2d 674, 686
cert. den. 423 U.S. 882; Carson v. Allied News Co., supra
(7 Cir.) 529 F. 2d 206, 212 (1976); Lawyers Co-Op Pub-
lishing Co. v. West Publishing Co. (N.Y.) 32 App. Div. 585,
590 (1898); Vocational Guidance Manuals v. United News-
paper Manuals Inc., 280 App. Div. 593, 595 affd. 305 N.Y.
380 (1953); Rathkopf v. Walker (N.Y.) 190 Misc. 168
(1947); Campbell v. New York Post, 245 N.Y. 320, 328
(1927).
C.
For the respondents to have charged that “petitioner is
suspiciously lenient to heroin dealers and organized crime
figures” and “acted suspiciously in ways that defied law and
reason” and “is putting people on the street who sell death
for a profit,” claiming to have based such charges on their
claimed informacion about petitioner’s dispositions in four
specific cases, though actually knowing from the court
records in those four cases, that the charges are false, is
clear and convincing evidence of malice on their part”
(Hotchner v. Doubleday & Company Inc. (2 Cir.) 551 F. 2d
910, 913) (1977).
36
If respondents had published, as they knew to be the fact,
that in each of those cases the dispositions were made on
the recommendation of the district attorney, for the reasous
appearing on the record, such published charge would have
been self-destructive and probably never would have been
published. Yet the Court below stated that this “omission
of relatively minor details in an otherwise basically ac-
curate account is not actionable. This is largely a matter
of editorial judgment in which the courts and juries have
no proper function (James v. Gannett, 40 N.Y. 2d 415, 424,
supra). To paraphrase Chief Justice Burger’s statement
in Miami Herald Publishing Co. v. Tornillo (418 U.S. 241,
258), the choice of material to go into a book and the
decisions made as to limitations in size and content, and
treatment of public issues and public officials, whether fair
or unfair, constitute the exercise of editorial judgment”
(Appendix C, A31).
In Miami Herald supra, this Court held a Florida right
of reply statute to be unconstitutional since a newspaper
as a matter of free press could not be required to print
answers to its articles. It was not a libel case. This Court,
it is submitted, has not held and did not intend to hold that
a defamatory charge of criminality based on a knowing
omission of vital facts which demonstrate the falsity of the
charge was such a permissible exercise of editorial judg-
ment as to what to print so as to bar any libel action. Such
knowing omission of crucial facts is clearly evidence of
malice (Montandon v. Triangle Publications Inc., 45 Cal.
App. 3rd 938, 944, 120 Cal. Rep. 186, 189 (1975), cert. den.
423 U.S. 893; Varnish v. Best Medium Publishing Co. (2
Cir.) 405 F. 2d 608, 611, 612, 613 (1968) cert. den. 394 U.S.
987 ; Goldwater v. Ginzburg, supra (2 Cir.) 414 F. 2d 324,
336, 337 (1969) cert. den. 396 U.S. 1049).
The statement of the Court below that the omissions here
are of “relatively minor details” is clearly erroneous. The
37
author-emanated odor of “suspicious dispositions” evap-
orates in the context of the district attorney’s consent and
recommendation of those dispositions.
This is like saying that a publication about a married
woman that she was naked in a room with a man not her
husband, knowingly omitting to state that the man was a
doctor giving her a physical examination, was not a libelous
charge of adulterous conduct because the published state-
ment was literally true and that the knowing omission was
merely a relatively minor detail.
The omission of the facts in each of the four supporting
cases cited by Newfield showing that the district attorney
consented to or recommended the disposition is what ren-
ders clearly false the charge based on those four cases that
the respondent “acted suspiciously in ways that defied law
and reason” when heroin dealers and organized crime
figures were involved (Appendix F, A99-100).
The Association of the Bar in investigating Newfield’s
charge that petitioner’s “judicial temper softens remark-
ably before heroin dealers and organized crime figures”
stated “as to this charge he gives three cases as examples.”
The Association of the Bar then examined the court min-
utes in these cases and, based on the facts which it found
Newfield to have omitted, its Report concluded that “Mr.
Newfield failed to substantiate his charges against Justice
Rinaldi and omitted several material facts” (Appendix X,
A194).
The Brooklyn Bar Association made a similar investiga-
tion of this charge and examined the court minutes in these
cases and based on Newfield’s omission of the material
facts as to the consent and recommendation by the district
attorney in each case, came to the same conclusion that “the
author’s treatment of Judge Rinaldi is calculated to create
38
an impression that is not borne out by the facts. The un-
truths, half-truths and misrepresentations concern the very
heart of the accusations against Mr. Justice Rinaldi” (Ap-
pendix Y, A199).
The opinion of Justice Gellinoff denying the motion for
summary judgment, on which opinion the Appellate Divi-
sion affirmed, likewise stated the omitted facts to be cru-
cial (Appendix E, A80-82).
D.
The charge that petitioner is “probably corrupt” “based
totally” on his indictment for perjury is a knowingly false
statement. All members of the press and publishing world
know that in the face of the constitutional presumption of
innocence and the lack of probative force of an indictment,
it is false to say that an indicted defendant is guilty and for
this reason they have never done so, since this would be a
malicious defamation for which they would be liable (Paul
v. Davis, supra, 424 U.S. 693, 697 (1976) ; concurring opin-
ion of White, J. in Greenbelt Co-Op Publishing Association
v. Bressler, 398 U.S. 6 at pages 21-22 (1970); Patterson v.
New York, —— U.S. ——, 53 L. Ed. 2d 281, 292 (1977);
Gregory v. McDonnell Douglas Co., supra, 131 Cal. Rep.
641, 552 P. 2d 425, 435) (1976). Here, besides, the respon-
dents knew that the indictment was for perjury and that the
grand jury found no indictment for corruption.
All that the respondents, stretching their statements to
the limit of what they thought they could get away with,
said of the indictment in the book was (pp. 104-105) :
“On November 12, 1973, Judge Rinaldi was indicted
on three counts of perjury by a grand jury impanelled
by Special Prosecutor Maurice Nadjari. He was also
indicted on one count of obstruction of justice. The
39
perjury involved criminal cases Judge Rinaldi was
suspected of fixing. If convicted on all counts Judge
Rinaldi could be sentenced to 22 years in prison.”
Nevertheless, the respondents made the general state-
ment in another context (Appendix F,, A100) that petitioner
is “probably corrupt.” On pre-trial disclosure, knowing
that the respondents had no other possible support for this
charge, Newfield testified that it was “based totally on the
indictment” (Appendix DD, A257). Since the mere fact of
the indictment is no support for a charge of probable
criminal conduct, the respondents are without any defense
for their malicious charge of “probably corrupt.”
E.
With respect to the other charges in the book that peti-
tioner is “very tough on long-haired attorneys and black
defendants especially on questions of bail, probation and
sentencing (Appendix F, A95) and that “every law en-
forcement agency in the state is aware of Judge Dominic
Rinaldi’s reputation for going easy on members of the
Mafia. The Joint Legislative Committee on Crime has a
whole file full of suspicious dispositions by Judge Rinaldi
in organized crime cases” (Appendix F, A102), “he has a
reputation among lawyers and court reformers for going
soft on pushers, especially when represented by certain
well-connected bondsmen and lawyers (Appendix F, A96),
“he is cruel or abusive to defendants (Appendix F, A102),
“defendants connected with organized crime families were
treated permissively,” “occasionally large-scale heroin
dealers wouid gei inexplicabiy lenient sentences,” “‘and cer-
tain Brooklyn lawyers would almost always win their cases
before Rinaldi” (Appendix F, A99-100), the respondents
have set forth nothing on their motions for summary judg-
ment to support these statements. (As to the charge that
40
petitioner was repressive toward black defendants, New-
field admitted on pre-trial] disclosure in the prior action of
Rinaldi v. Voice that when he wrote it he had no specific
cases in mind (Appendix CC, A241, 242).
As to his claimed careful analysis, prior to writing the
original articles, of records of petitioner’s previous dis-
positions (Appendix F, A99) this, as previously noted,
turned out on pre-trial disclosure to be a fraud. The Joint
Legislative Committee on Crime had made a statistical
study of dispositions by all judges of what it called orga-
nized crime defendants. Its study consisted merely of the
names of the defendants and the dispositions (Appendix
DD, A255; Appendix H, A136). No facts in any case were
stated. Newfield testified he went to the office of the Com-
mittee and there on two sheets copied down the names and
dispositions of some of the defendants in three of peti-
tioner’s cases (Appendix DD, A258). On their motion for
summary judgment, the respondents offered nothing in sup-
port of their charge that the “Joint Legislative Committee
on Crime has a whole file full of suspicious dispositions by
Rinaldi in organized crime cases” (Appendix F, A102).
They did not even present or rely on these dispositions in
those three cases. This was plairly because the court rec-
ords in those three cases show that they were similar to
the four cases of Burton, Glover, Vario and Agro and that
such dispositions were made with the concurrence of the
district attorney and were in no way “suspicious.” Peti-
tioner was prepared to produce the court records in those
three cases, but since respondents did not rely on these
cases, and did not even refer to them, it was deemed by
petitioner unnecessary to do so. Respondents having made
these charges should have heen required to show that the
court records support their version (Time Inc. v. Firestone,
supra, 424 U.S. 448, 459) or any other claimed supporting
evidence.
41
Since the respondents have offered no supporting basis
for these charges, it must be presumed that they were made
with reckless disregard for their truth or falsity (Hartley
v. Conrad and Times Mirror Co. (Court of Appeals of
California, Second Appellate District, Division Three, Feb-
ruary 3, 1976 unreported cert. den. for nonfinality of judg-
ment —— U.S. —— 50 L. Ed. 2d 152; Guam Federation of
Teachers v. Ysrael (9 Cir.) 492 F. 2d 438, 439 (1974) cert.
den. 419 U.S. 872; Carson v. Allied News Co., supra (7 Cir.)
529 F. 2d 206, 213 (1976).
In Hartley v. Conrad and Times Mirror Company, supra,
the Court held in denying summary judgment:
“While respondents made a strong showing of the
basis for their charge that appellant’s refusal to al-
locate the shortfall caused a bleak Southern California
Christmas, negating reckless disregard of the truth or
knowledge of falsity in that respect, they made no ef-
fort to demonstrate that there was any basis for a
charge that appellant was in any way responsible for
causing the diversion order.”
F.
In dismissing petitioner’s suit on a motion for summary
judgment, without a trial, the Court below, though agree-
ing that the award of summary judgment in libel actions is
governed by the same rules as in civil actions generally
(Appendix C, A32), acted contrary to the fundamental
concept of summary judgment as issue finding and not is-
sue deciding in which the existence of an issue of fact re-
quires denial of the motion (Stone v. Goodson, 8 N.Y.2d 8,
12-13 (1960) ; Phillips v. Kantor, 31 N.Y.2d 307, 311 (1972) ;
Sillman v. Twentieth Century Fox Corporation, 3 N.Y.2d
395, 404 (1957). “The standard against which the evidence
must be examined is that of New York Times and its prog-
eny. But the manner in which the evidence is to be ex-
42
amined in the light of that standard is the same as in all
other cases in which it is claimed that a case should not go
to the jury” (Emphasis by the Court.) (Guam Federation
of Teachers v. Ysrael, supra, 492 F.2d 438, 439, cert. den.,
419 U.S. 872; Church of Scientology v. Dell Publishing Co.,
supra, 362 F. Supp. 767, 770; Thomas H. Maloney ¢ Sons
Inc. v. E. W. Scripps Co., supra, 43 Ohio App.2d 105, 334
N.E. 494, 499; cert. denied, 423 U.S. 883; Phoenix News-
papers v. Church, supra, 24 Ariz. App. 287, 537 P.2d 1345,
1556, cert. denied, 425 U.S. 908, 985; Rancho La Costa Inc.
v. Penthouse International Ltd. (Superior Ct. Cal. April
5, 1976, unreported, cert. den. —— U.S. —— 53 L.Ed.2d
245).
In this case, for example, the respondent Holt on its mo-
tion for summary judgment has chosen to claim that its
sworn admission in its answer, that since April 1973 it
knew of petitioner’s prior action and of petitioner’s pre-
trial disclosure testimony in that action (Appendix G,
A110-111), was false and that it did not have such knowl-
edge.
Petitioner’s pre-trial disclosure in the prior action took
place while the book republishing the articles was in prepa-
ration. It is hardly plausible that the respondent Holt
would not, as it admitted it did, obtain a copy thereof. It
made this admission in its answer because it thought it
could base an estoppel thereon. Having abandoned such
defense as untenable it seeks to deny what it admitted. If
that respondent’s sworn admission in its answer is not
conclusive against it and it is open to it to say that it lied
in that answer, at the very least this in itself, creates a
factual issue as to malice which requires a trial and thus a
denial of summary judgment (Talbot v. Laubheim, 188
N.Y. 421, 424 (1907); Krauss v. Birnbaum, 200 N.Y. 130,
137 (1910); Brisbane v. City of New York, 8 A.D.2d 882,
883 (1958)).
43
Also, though Wood admitted in her pre-trial disclosure
that she had pre-publication knowledge of the Brooklyn
Bar Association Report, as she said, “clearing Rinaldi”
(Appendix EE, A267), she says in her reply affidavit on
Holt’s motion for summary judgment that she did not
choose to accept it and thus that such knowledge of the
Report’s conclusions cannot be imputed to her (Appendix
GG, A278). Such knowledge that the Report “cleared”
petitioner of the charges made by Newfield in the articles
republished in the book, and failure on her part to further
investigate, is, at the very least, evidence of reckless dis-
regard for the truth or falsity of the charges which re-
quires determination by the jury as a factual issue. (Curtis
Publishing Co. v. Butts, supra; Alioto v. Cowles Com-
munications Inc., supra; Church of Scientology v. Dell
Publishing Co., supra).
Also, Wood admitted that Newfield told her of his inter-
view by the Association of the Bar on December 28, 1972
about his charges in his article of October 16, 1972 against
petitioner (Appendix EE, A268). This was during the
period when the book republishing the articles, was in
preparation and Wood obviously had to be keenly inter-
ested in any investigation of the charges in the articles.
When asked on pre-trial disclosure what Newfield had told
her about the interview, she took refuge in “I don’t remem-
ber” (Appendix EE, A268-269). She also admitted that
during that period she had discussed with Newfield rumors
that the Association of the Bar had made its Report of the
results of such investigation (Appendix EE, A267-268),
which she was aware, from Newfield’s interview by the
Committee, would be expected to be unfavorable to New-
field’s charges against petitioner.
With respect to the Association of the Bar Report, Wood
in her moving affidavit admitted that “I recall reading the
44
New York Times and Daily News articles (of April 9,
1974) which I recall reported that he (Newfield) had not
substantiated his charges against Justice Rinaldi” (Appen-
dix FF, A273). When her original affidavit was made,
Wood thought this to be a safe admission, since she coupled
it with the statement that copies of the book, whose publi-
cation date was April 15, 1974, had been released for sale
some weeks before (Appendix FF, A274). However, when
the petitioner’s opposing affidavit demonstrated that for
months thereafter, with knowledge of the Times article and
the Association of the Bar Report, Holt continued to sell
and promote the book (Appendix II, A281-289), Wood had
no compunction, in her reply affidavit, against swearing
that she never saw the Times article uwutil after this law-
suit was commenced in August 1974 (Appendix GG, A277).
Wood, however, unfortunately for her on this factual issue,
which she now created, overlooked the fact that she had
also stated in her moving affidavit that “After the City Bar
Report had been disclosed and he obtained a copy of it, the
author told me that the Report ... had stated... that he
had not ‘substantiated’ his opinions regarding Justice
Rinaldi’s alleged incompetence and bias” (Appendix FF,
A273). Newfield obtained a copy of the Report when it was
made public on April 9, 1974 (Appendix DD, A250) and
Wood thus then knew of its import, even ‘f she had not, as
she had admitted, read the Times article of April 9, 1974.
Also, Wood in her reply affidavit (Appendix GG, A277)
states that she never saw the New York Times article of
May 16, 1973, reporting that the advertisement sued on
was based on the falsity of the statements repeated therein
from the original articles republished in the book. Since
this would be evidence of knowledge by Wood that in the
prior action petitioner claimed the original articles re-
published in the book to be false, it does not matter to
45
Wood that she contradicts the testimony, not of the peti-
tioner, but of the respondent Newfield that “I informed her
(Wood) when the suit was filed. I believe in May, I showed
her the article in the New York Times”... “I know I gave
her the Times article and told her of the situation, and
gave her Victor’s phone number if she had any further
questions she should confer with Victor” . . . “The only
thing I gave Holt was the New York Times clipping about
the filing of the suit” (Appendix DD, A245-246).
Petitioner has offered evidence which clearly and con-
vincingly establishes knowledge by the respondeuts of the
falsity of their publication and thus at the very least, that
this was a case where “the writer must be aware of the
probability that the statement might be false, and knowing
that . . . takes a calculated risk and publishes it anyway”
(Varnish v. Best Medium Publishing Co., supra, 405 F.2d
608, 612 cert. denied, 394 U.S. 987) and that it was there-
fore “circulated with reckless disregard for its truth or
falsity” (Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,
490 (1975) and that “the finder of fact must determine
whether the publication was indeed made in good faith”
(St. Amant v. Thompson, 390 U.S. 727, 732 (1968); Davis
v. Schuchat (D.C. Cir.) 510 F.2d 731, 735 (1975); Phoenix
Newspaper Inc. v. Church, supra, 24 Ariz. App. 287, 537
P.2d 1315, 1355, cert. denied, 421 U.S. 908; Goldwater v.
Ginzburg, supra, 414 F.2d 324, 337).
CONCLUSION
For the foregoing reasons, this petition for certiorari
should be granted.
Respectfully submitted,
Irwin N. Witeon
Counsel for Petitioner
October, 1977.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.