Opposition Brief — McCoy v. Hearst Corp.

\ —T. s Court, . S.

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APR LL 1987

No. 86-1336

ern HF. SPANICL, JRL

Supreme Court of the United Sti OSieRK

October Term, 1986

FRANK McCOY, EDWARD ERDELATZ, and

PIERRE MERLE,

Petitioners,

vs.

THE HEARST CORPORATION, a California

corporation, SAN FRANCISCO EXAMINER,

RAUL RAMIREZ and LOWELL BERGMAN,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of California

BRIEF OF RESPONDENTS RAUL RAMIREZ AND

LOWELL BERGMAN IN OPPOSITION TO PETITION ~—

FOR WRIT OF CERTIORARI

ray

Vv

ArTHUR BRUNWASSER*

240 Stockton Street, 3d Flr.

San Francisco, CA 94108

Telephone: (415) 391-2203

Marcaret C. Crossy

Avan L. ScHLossER

Evwarp M. CHEN

American Civil Liberties Union

Foundation of Northern

California, Inc.

1663 Mission Street, Suite 460

San Francisco, CA 94103

Telephone: (415) 621-2493

Attorneys for Respondents

Raul Ramirez and Lowell

Bergman

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO .. Pa B00) 225-6964

or call collect (402) 342

QUESTION PRESENTED

Was the California Supreme Court correct in its unani-

mous determination that petitioners failed to introduce

clear and convincing evidence of actual malice sufficient to

sustain a jury verdict in a public official defamation case?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED i

CONSTITUTIONAL PROVISIONS INVOLVED .... 1

STATEMENT OF THE CASE 1

A. Proceedings in the California Supreme Court 1

B. The Record 3

REASONS FOR DENYING THE WRIT 7

I. THE CALIFORNIA SUPREME COURT DID

NOT DISTURB ANY CREDIBILITY CHOICE

IN DETERMINING THAT THE RECORD BE-

LOW FAILS TO SUPPORT A CONCLUSION

THAT RESPONDENTS ACTED WITH AC-

TUAL MALICE

A. Evidence of Knowing Falsity

B. Evidence of Awareness of Probable Falsity .....

Il. THERE IS NO REAL CONFLICT IN THE RE-

PORTED DECISIONS FOLLOWING BOSE

CORP. V. CONSUMERS UNION OF U.S., INC.

CONCLUSION

iii

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Bessemer City, — U.S. —, 84 L.Ed.2d

518 (1985) 8

Anderson v. Liberty Lobby, — U.S. —, 91 L.Ed.2d

202 (1986) 8, 15, 23

Bose Corporation v. Consumers Union of U.S., Inc.,

466 U.S. 485 (1984) 7, 8, 9, 11, 14, 15, 19, 22, 23

Dombey v. Phoenix Newspapers, Inc., 159 Ariz.

476, 724 P.2d 562 (1986) 22

Gazette, Inc. v. Harris, 325 S.E.2d 713 (Va. 1985) _..... 23

Larman v. Flynt Dist. Co., Inc., 745 F.2d 123 (2d

Cir. 1984) 23

New York Times Co. v. Sullivan, 376 U.S 254

(1964) 7, 11, 22, 23

Starkins v. Bateman, 150 Ariz. 537, 72 P.2d 1206

(1986) 23

Time v. Pape, 401 U.S. 279 (1971) 23 ©

Tosti v. Ayik, 394 Mass. 482, 476 N.E.2d 928 (1985) ...... 22

CoNSTITUTIONS

California Constitution, Article 1

United States Constitution, First Amendment ................ 1,7

Rand

Federal Rules of Civil Procedure, Rule 52 8

United States Supreme Court Rule 17.1 23

OTHER AUTHORITIES

R. Reagan, ‘‘ Declaring War on Organized Crime,”’

N.Y. Times, January 12, 1986, § 6 (Magazine) ......... oe

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CONSTITUTIONAL PROVISIONS INVOLVED

California Constitution, Article I, Section 2(a) pro-

vides :

Every person may freely speak, write and publish

his or her sentiments on all subjects, being responsible

for the abuse of this right. A law may not restrain or

abridge liberty of speech or press.

STATEMENT OF THE CASE

A. Proceedings in the California Supreme Court

The unanimous opinion of the California Supreme

Court decided the following issues:

1. The First Amendment to the United States Con-

stitution and Article 1, section 2 of the California

Constitution protected the respondents when they

published the articles which formed the basis of

this suit. (App. 1).!

2. The trial court erred in excluding the testimony

of respondent Ramirez about the source of his

published statements that petitioner Merle had

been the subject of a State Bar disciplinary pro-

ceeding. (App. 38-39).

3. The trial court committed error when it instructed

the jury on punitive damages under the wrong

California statute. (App. 40-42).

1Petitioner’s Appendix is designated “App.” The Petition

is designated “Pet.” The Reporter’s Transcript of the trial be-

low is designated “R.T.” The Clerk’s Transcript of the lower

court proceedings is designated “C.T.”

|

2

Several issues briefed and argued before the Cali-

fornia Supreme Court were not decided. Involving both

state and federal law, these issues were:

1. Whether trial courts have discretion to exclude

evidence of the reporters’ states of mind in a

libel case without violating their constitutional

due process right to a fair trial, when the primary

factual issue in the case is the reporters’ subjec-

tive states of mind; or whether the trial court

abused its discretion in excluding their state of

mind evidence.

2. Whether the trial court denied the respondents a

fair trial by admitting evidence that one of the

reporters had children out of wedlock, had writ-

ten for ‘‘underground’’ newspapers, had a ‘‘radi-

cal’’ past, possessed ‘‘anti-administration’’ politi-

cal views, and had been sued for $400 million in

an unrelated case involving an article on alleged

organized crime figures in California published

in Penthouse magazine.”

The unrelated libel case against respondent Bergman never

went to trial, and thus no court has ever found the Penthouse

article to be defamatory. President Reagan recently commented

on another libel suit arising out of the same article:

“For example, a — article exposing one of the mob’s

legitimate business fronts referred in passing to longtime La

Cosa Nostra member Alameda ((Jimmy) Fratianno as ‘an in-

famous hit man.’ A mob lawyer and his La Cosa Nostra

superiors ordered Fratianno to file a libel suit, which was

eventually dismissed. Years later, facing a long jail term,

Fratianno became a Government witness and admitted un-

der oath that he had been directly involved in four mob

murders and had incriminating advance knowledge in seven

others. Fratianmno claims his libel suit had been ordered for

(Continued on following page)

3

3. Whether the trial court properly instructed the

jury when it declined to instruct on the constitu-

tional principles of freedom of speech and press,

and emphasized instead the duty of publishers to

investigate the facts under an objective standard.

B. The Record

Petitioners are three public officials—two folice in-

spectors and an assistant district attorney—who filed libel

actions against respondent The Hearst Corporation, pub-

lisher of respondent San Francisco Exammer, and two

reporters, respondents Raul Ramirez’ and Lowell Berg-

(Continued from previous page)

the obvious purposes of raising the cost of hard-hitting

reporting about organized crime and deterring journalists

and publishers from doing their duty.”

R. Reagan, “Declaring War on Organized Crime,”

N.Y. Times, January 12, 1986, §6 (Magazine) at 27,

65-84.

3Raul Ramirez was born in Cuba on September 9, 1946, im-

migrating to the United States in April 1962 with his family.

(R.T. 1934). After receiving a baccalaureate ree in journal-

ism from the University of Florida, Ramirez worked on the staff

of the Miami Herald for 2-1/2 years as a general assignment re-

porter. (R.T. 1939-40). When he left the Miami Herald, he

joined the Washington Post, where he was again a general

assignment reporter covering, among other things, criminal jus-

tice matters. (R.T. 1941). After two years with the Washington

Post, Ramirez was telephoned by Randolph Hearst and asked

to meet with editors of the San Francisco *xaminer. (R.T. 1947-

48). Ramirez joined the Examiner staff in july 1974 as a general

assignment reporter. (R.T. 1599, 1949). He has covered the

San Francisco and San Bruno jails, posing as a guard in those

facilities for several weeks (R.T. 1949), and has written a story

on Mexican prisons (R.T. 1951). Ramirez has won awards for

his work as a journalist, both as a student (R.T. 1935-37) and as

a reporter (R.T. 1599, 1949). His excellence as a journalist and

(Continued on following page)

+

man.‘ The alleged libel arose from a series of articles in

the Examiner about tke trial of Richard Lee, who was con-

victed of the murder of a Chinese youth named Poole

Leong on July 13, 1972 outside of a housing complex in

the Chinatown section of San Francisco. (App. 44-69). The

articles were written over a period of eighteen months.

During this time, the reporters interviewed 40 people (App.

18-22), including two eyewitnesses to the killing who pro-

vided the reporters with affidavits. The first eyewitness,

May Tom, a sixteen-year-old girl, stated that she was never

certain she had correctly identified the assailant but had

been pressured and knowingly misled by the police and

prosecutor in the case into identifying Richard Lee as the

(Continued from previous page)

his integrity as an individual were attested to by Larry Jinks, the

editor of the San Jose Mercury News, and formerly the assistant

managing editor of the Miami Herald (R.T. 4297-4300), and by

Ben Bagdikian, a B sasgnens g' of journalism at the University of

California at Berkeley and formerly an assistant managing editor

for the Washington Post (R.T. 4336-41).

‘Lowell Bergman, who was 33 years old at the time of trial

(R.T. 2699), was a free lance writer from 1973 to 1976, which

included the period during which the Richard Lee articles were

prepared (R.T. 2538). Bergman graduated from the University of

Wisconsin in 1966 with a B.A. degree in history (R.T. 2538), and

subsequently attended graduate school for three years at the

University of California at San Diego (R.T. 2539). He has worked

for the New York Times, both as a consultant and as an investi-

gative reporter; he has worked for the Washington Post; he has

written for Ramparts magazine; and he has done investigative

work for NBC News. (R.T. 2700). After publication of the

Richard Lee articles, and after the filing of this lawsuit, Bergman

was employed by ABC Television to be a reporter on ABC's in-

vestigative news show “20/20.” a position Bergman continued

to hold at the time of trial. (R.T. 2701). Bergman, who has won

awards in the field of journalism (R.T. 2850-51), was praised as

an outstandine. tireless reporter by ABC correspondent David

Marsh (R.T. 4316-17).

killer. (R.T. 2251, 2725, 3984; C.T. 82, 83, 104, 105). The

second eyewitness, Weyman Tso, was turned over to the

police at the Hall of Justice by his attorney. (R.T. 683,

2896, 3182). He was then transferred to the Youth Guid-

ance Center and later released from custody without being

interrogated. (R.T. 684-86, 3183). He told respondent

Ramirez, and swore in his affidavit, that he had indeed

been at the scene of the crime, that he had seen the shoot-

ing, and that Richard Lee, whom he knew well, was not

present or involved. (R.T. 2178-83; C.T. 109). He also

stated that he had attempted to clear Lee’s name while

detained at the Youth Guidance Center, but that the police

were not interested. (C.T. 109). These affidavits were

reported in the Lee articles. Petitioners offered no evi-

dence to question the statements made to the reporters

by the only eyewitnesses to the crime.

The third affidavit obtained by the reporters was from

Thomas Porter, the star prosecution witness at the Lee

trial. Porter testified that while he and Lee were cell-

mates during pretrial detention, Lee had confessed to the

murder of Poole Leong. Bergman wrote a letter to Porter,

then incarcerated in a federal facility in Indiana, to in-

quire whether Porter would be interested in discussing the

ease. (App. 13). Within days, Porter telephoned Berg-

man to say that he had lied at the Lee trial in response to

threats of violence and promises of leniency from the police

and prosecutor, and felt great remorse. (R.T. 1026-27,

1201-02). Porter subsequently exécuted a detailed affi-

davit, which was drafted by an Indiana attorney, John

Manning, for use in connection with a writ of habeas corpus

on Lee’s behalf. (R.T. 440-53; C.T. 75-80, Pl. Ex. 61).

Lee’s petition for a writ of habeas corpus, supported

by the affidavits of the two eyewitnesses and Porter, was

filed several days after publication of the articles. The

attormey handling the case, a former California trial judge,

told respondent Bergman prior to the publication of the

articles that in his professional opinion, it was one of the

best documented cases for habeas relief that he had ever

seen. (App. 34).

The California Attorney General’s office contacted

Porter in connection with the habeas petition. After a

meeting with California officials, Porter repudiated his

affidavit and executed a second affidavit asserting that he

had testified truthfully in the murder trial. (R.T. 3795).

After the trial and intermediate appellate courts had sum-

marily denied his petition for habeas relief, the California

Supreme Court granted Lee’s petition for hearing and re-

quired the Superior Court to hold an evidentiary hearing.

(R.T. 4009). The Supreme Court mandated further ju-

dicial review, based in part on Porter’s first affidavit, al-

though it also had Porter’s recanting affidavit at the time

it granted relief (App. 33).°

The reporters’ intensive 18-month investigation was

not confined to participants in the Lee trial, but included

interviews with attorneys, journalists, social workers, police

officers, and leaders of and experts on San Francisco’s

Chinatown community. (App. 18-22). The reporters found

substantial evidence which in their minds tended to show

that Lee had been wrongfully convicted and that petitioners

could have engaged in the misconduct alleged by Porter.

(App. 18-21). Near the conclusion of their research, the

SHabeas relief was ultimately denied. (R.T. 4009-10).

7

reporters attempted to interview all three petitioners to

learn their version of the events. Each refused to discuss

the Richard Lee case. (R.T. 646-48, 923, 1757, 1766-68,

1850-51, 2246, 3184, 3463-65).

At the close of their investigation, the reporters be-

lieved that the evidence they had accumulated raised seri-

ous questions about San Francisco’s criminal justice sys-

tem and, particularly, its treatment of members of racial

minorities, which should be brought to the public’s atten-

tion. (R.T. 2273-74, 2688, 2743-45). The articles, ques-

tioning the fairness of the Lee conviction, were published

in the Examiner as a three-part series, running from May

19 through 21, 1976. (App. 44-69).

ra’

—

REASONS FOR DENYING THE WRIT

Three aspects of the Petition are noteworthy. First,

petitioners omit any discussion or analysis of Bose Cor-

poration v, Consumers Union of U.S., Inc., 466 U.S. 485

(1984). They make no effort to illustrate the manner in

which they believe the California Supreme Court departed

from the teachings of Bose in its careful review of the evi-

dence of actual malice. They do not explain the actual

guidelines or standards to be applied by an appellate court

in making its independent review of constitutional facts.

Moreover, they leave open the critical question of how

review in a case involving First Amendment rights would

differ from an ordinary civil appeal. Indeed, petitioners

do not appear to acknowledge that Bose, or New York

Times Co. v. Sullivan, 376 U.S. 254 (1964), had any effect

upon the standards of appellate review.

Second, no_matter what uncertainty petitioners read

into the Lose opinion, petitioners’ principal evidence, the

testimony of Thomas Porter, was offered only in the

form of deposition and affidavits. This is not a case where

a jury had an opportunity to observe Porter and evaluate

his demeanor. Porter’s deposition testimony was charac-

terized by inconsistency, contradiction and ambiguity.

Even under Rule 52(a), Fed. R. Civ. P., when the testi-

mony of witness is so internally inconsistent or inherently

impossible that a reasonable fact finder would not credit

it, a reviewing court may find error ‘‘even in a finding pur-

portedly based on a credibility finding.’’ Anderson v. Bes-

semer City, — U.S. —, 84 L.Ed.2d 518, 529 (1985). Ina

public official libel case, this Court has ruled that summary

judgment in favor of the defense is justified where ‘‘the

evidence presented in the opposing affidavit is of insuffi-

cient caliber or quality to allow a rational finder of fact

to find actual malice by clear and convincing evidence.’’

Anderson v. Liberty Lobby, — U.S. —, 91 L.Ed.2d 202, 215

(1986). Thus, under any interpretation of Bose, the Cali-

fornia Supreme Court was correct in reversing the judg-

ment entered in this case.

Third, the jury delivered a general verdict in this case.

Contrary to petitioners’ suggestion (Pet. 12), it is far from

clear that the jury believed Porter and disbelieved Berg-

man. The jury might well have concluded that the report-

ers acted with reckless disregard under an erroneous jury

instruction that advised the jurors that they could impose

liability based on an objective standard of journalistic con-

duct rather than a finding of subjective doubt. A public

official libel case decided by jury verdict presents the

**strongest case for independent fact finding’’ by the appel-

late court. Bose v. Consumers Union of U.S., Inc., 466 U.S.

at 518 n.2 (Rhenquist, J., dissenting).

I. THE CALIFORNIA SUPREME COURT DID

NOT DISTURB ANY CREDIBILITY CHOICE

IN DETERMINING THAT THE RECORD BE-

LOW FAILS TO SUPPORT A CONCLUSION

THAT RESPONDENTS ACTED WITH AC-

TUAL MALICE.

Petitioners have presented a highly selective summary

of the record which they contend supports the $4.6 million

libel judgment. Culling fragments from the transcript of

a six-week trial, which is clearly impermissible under Bose,

results in an incomplete and distorted picture of the evi-

dence.’ A more accurate and complete depiction of the

trial proceedings is summarized in the California Supreme

Court’s opinion. (App. 1-2, 10-25). A brief review of

the evidence of malice in the trial record, presented below,

establishes that the California Supreme Court was correct

in concluding, upon an independent review of the constitu-

tional facts in that record, that petitioners below totally

failed to establish clear and convincing evidence of actual

*Respondents argued on appeal that the jury instruction

defining reckless disregard for the truth erroneously focused on

objective conduct rather than subjective belief. This was one

of the issues left unresolved by the California Supreme Court.

"The California intermediate Court of Appeal, while pur-

porting to follow Bose, committed the same error in focusing

only on selected portions of the record to sustain the judgment

below. App. B.

10 -

malice. That decision can be reached and was reached

by the California Supreme Court without reassessing legiti-

mate findings regarding the credibility of witnesses.

A. Evidence of Knowing Falsity

Petitioners’ case for malice depended on the testimony

of Thomas Porter, who testified at the libel trial by depo-

sition. Petitioners focused on a portion of that deposition

testimony, claiming throughout the trial and appellate pro-

ceedings that it furnished proof that Bergman and Porter

had made a bargain whereby Porter would give false affi-

davit in exchange for assistance from Bergman with Por-

ter’s legal situation. (Pet. 11-12). However, as the Cali-

fornia Supreme Court concluded, petitioners cannot rely

‘fon this isolated piece of ambiguous evidence as suffi-

ciently clear and convincing proof that Bergman knowingly

solicited the intricate lie that Porter proceeded to tell and

tell again.’’ (App. 29; emphasis in original). Even look-

ing at the isolated passages stressed by petitioners, with-

out considering the many contradictory portions of Porter’s

own deposition testimony and Bergman’s live testimony,

the testimony simply does not establish that any agreement

made by Bergman to assist Porter was an arrangement

that Porter give false testimony. As the Supreme Court

concluded, the testimony at best suggests that Porter heard

‘leading questions”’ or ‘‘certain suggestions’’ from Berg-

8Had respondent reporters been able to make a complete

trial record documenting their good faith belief in the truth of

their articles, the conclusion that respondents failed to act with

actual malice would have been even more apparent. The trial

court excluded 30 items of evidence relating to the reporters’

investigation and conclusions they drew about the Lee prosecu-

tion.

11

man, which led Porter, skilled at manipulation, to believe

that Bergman wanted a different story. (R.T. 975, 1215-17,

1377-80). But even the passages of Porter’s testimony

most helpful to petitioners provide, as the California Su-

preme Court concluded, ‘‘no evidence that Bergman’s re-

quest that Porter give another story was a request that

Porter give false testimony, although Porter apparently

construed it as such a ‘suggestion,’ or came as a response

to Porter’s telling him that he had told the truth at trial.’’

(App. 30).

Moreover, under any interpretation of Bose and New

York Times, petitioners are unjustified in seeking to sus-

tain the jury verdict by mere fragments of Porter’s testi-

mony. Porter’s deposition testimony, considered in its en-

tirety, is equivocal, internally inconsistent, confused and

confusing. Petitioners describe Porter’s deposition testi-

mony as though Porter gave a straightforward version of

events in direct conflict with Bergman’s and that the jury

was entitled to choose which witness to believe. But in fact

Porter contradicted himself so frequently that no reason-

able jury could have found clear and convincing proof of

malice from Porter’s deposition testimony. Substantial

portions of Porter’s deposition testimony contradict any

implication that he told Bergman that his Lee trial

testimony was true. It is undisputed that, during Por-

ter’s first contact with Bergman, Porter advised Bergman

with no prompting from the reporter—that he had lied at

the Lee trial and suffered great remorse. (App. 13). In

addition, Porter testified that during Bergman’s visit to

Porter in the Indiana penitentiary, Porter again told

Bergman that he had lied at the Lee trial and wished to

make amends:

orpope

12

And did he [Bergman] come to see you?

Yes. /

How long did he visit with you?

About two, thre hours.

Didn’t during that visit you also tell him that you

lied during the Richard Lee trial?

Yes.

You did tell him that, didn’t you?

Yes.

Okay. Why did you tell him that you lied at the

Richard Lee trial?

The reason I told him that there is because he in-

dicated that I was—that the whole thing that he

had on the Richard Lee trial was false, and then

he had mentioned that the San Francisco Police

Department do set people up and put them in a

position to set another person up and he had heard

of it before happening and that he was aware of

my five to life.

During this meeting, isn’t it true that you were

angry at the police department and the D.A.’s

office?

Yes.

Isn’t it also true that you saw this as an opportu-

nity to get back at them?

Yes. Mainly to get out of that five to life.

13

Q. Okay. During that meeting, didn’t you say that

you had never done anything like this before and

it weighs on you?

A. Yes, I think I said that.

@. And you were referring to your testimony at Rich-

ard Lee’s trial, right?

A. I think so.

Q. Okay. So the fact that you testified falsely at

Richard Lee’s trial weighed heavily on you, right?

A. I didn’t testify falsely there.

Q. But you told Lowell Bergman that you testified

falsely, didn’t you?

_A. Right.

(R.T. 1029-30).

Thus, Porter contradicted himself on the question of

what he had told Bergman during the reporter’s first in-

terview. On other points, Porter’s deposition testimony

is inherently incredible and contradicted by other witnesses,

including petitioners themselves.’

°For example, Porter testified that he initiated the contact

with petitioners by sending out a letter from his jail cell to the

police stating that he had information bearing on Lee’s guilt

(R.T. 1122-27, 1182-83); petitioners testified that they learned

that Porter was friendly with Lee from an informant, Lydell

Moore, and brought Porter out to question him (R.T. 610-12,

707-12, 805-07, 3163). Porter also testified that Lee told him in

jail that he was questioned by the authorities “all that night

when he first came in’ (R.T. 1058), although petitioners testi-

fied that they conducted no interrogation of Lee, who declined

to be questioned in the absence of counsel (R.T. 590, 3155).

14

Nor is Porter’s testimony bolstered by Bergman’s let-

ters. In context, the letters cited by petitioners support

Bergman’s testimony, showing that his motivation ‘‘is to

set the record straight’’ in the Richard Lee case. (Pl. Ex.

27,28; App. 17). There is absolutely nothing in the letters

suggesting that Bergman wanted a false affidavit from

Porter. The most that could be inferred from the letters

is that Bergman agreed to assist Porter after Porter had

executed an affidavit to right the wrong he had inflicted

on Richard Lee by giving perjured testimony for the prose-

cution in Lee’s case. (App. 17-18).

The California Supreme Court was in as good a posi-

tion as the trial judge and jury to evaluate Bergman’s let-

ters and Porter’s deposition testimony. Thus, since no

judge or jury had an opportunity to view petitioners’ star

witness, the test of appellate review they apparently seek

in this case has never been applied in any reported deci-

sion. Under any interpretation of the scope of appellate

review established by Bose, the California Supreme Court

was clearly correct in ruling that Porter’s deposition tes-

timony failed to establish clear and convincing proof of

malice.

Against Porter’s equivocal, inconsistent, and incredible

deposition testimony was Bergman’s clear and unwaver-

ing testimony that Porter telephoned and told him, with no

prompting, that he had testified falsely at the Lee trial

(R.T. 2729-30) and repeated that story when Bergman visit-

ed him in Indiana (R.T. 1662, 2746). Petitioners attempt

to undermine Bergman’s credibility by questioning his

opinion of the damage the articles would inflict on peti-

tioners and pointing to an omission in interrogatory an-

swers regarding Porter’s telephone calls. These two re-

15

sponses, culled from hours of cross-examination, hardly

constitute substantial impeachment. Petitioners in fact

had suffered no tangible injury resulting from the articles

by the time of trial,'° and Bergman’s recollection that

Porter expressed fear of reprisal for his Lee trial testi-

mony was substantially consistent in his interrogatory

answers and trial testimony."

More fundamentally, petitioners cannot create a case

for malice by discrediting Bergman. ‘‘ When the testi-

mony of a witness is not believed, the trier of fact may

simply disregard it. Normally the discredited testimony is

not considered a sufficient basis for drawing a contrary

conclusion.’’ Bose Corp. v. Consumers Union of U.S., 466

U.S. at 512; cf. Anderson v. Liberty Lobby, 91 L.Ed.2d at

217 (plaintiff must affirmatively present evidence of malice

to defeat summary judgment in defamation action). Peti-

tioners do not have clear and convincing evidence of know-

ing falsity in the isolated passages of Porter’s deposition

testimony. Thus, they would fail even if they could dis-

credit Bergman’s clear and unwavering trial testimony.

B. Evidence of Awareness of Probable Falsity

Petitioners’ case for reckless disregard of the truth

rests primarily on the alleged failure of respondents to

10They had suffered no loss of status, seniority or salary;

there had not been even an internal review of the allegations

in the articles by their employers. (R.T. 688-90, 837-38, 3199-

200, 3491, 3354).

The interrogatory answers briefly identified the major sub-

stance of telephone conversations, charting events in Porter's

life at the time. Bergman’s testimony, that a constant theme of

Porter’s was fear of retribution if he had to testify while in

custody in California, was not inconsistent with the information

conveyed in the interrogatory answers. (R.T. 2856, 2871-80).

16

corroborate Porter’s affidavit. (Pet. 12). The duty to

corroborate, they contend, stemmed from Porter’s un-

reliability as an inmate and confessed perjurer. The

dilemma they face is the inherent contradiction between

their case for knowing falsity and their case for reckless

disregard: if Porter was so unreliable as to make it nearly

conclusive that respondents should not have believed him,

then this unreliability infects petitioners’ case for malice.

Petitioners cannot have it both ways: they cannot argue

in the same petition that the California Supreme Court

was required to find clear and convincing evidence of mal-

ice because Bergman and Ramirez used Porter without

sufficient corroboration, and simultaneously argue that

the California Supreme Court was required to find clear

and convincing evidence of malice from Porter’s uncor-

roborated, unconvincing and contradicted tale of a deal he

struck with Bergman. The California Supreme Court cor-

rectly exposed this fundamental flaw in petitioners’ case:

Finally, it is noteworthy. that respondents [petition-

ers before this Court] now seek a ruling from this

Court that since Porter was a prisoner with something

to gain, there were obvious reasons to doubt his cred-

ibility and thus any reliance on Porter was reckless.

Yet, thrice in the history of these proceedings, re-

spondents [petitioners “fore this Court] have relied

upon statements and stories from Porter: once, to

convict Richard Lee; a second time to defeat Lee’s

habeas corpus claims; and a third time to obtain a

multi-million dollar libel judgment. These litigious

ironies do not excuse appellants [respondents before

this Court] from accountability for recklessness if they

possess a ‘‘high degree of awareness .. . [of] probable

falsity.’’ [Citations]. However, they do undermine

the strength of respondents’ [petitioners before this

Court] suggestion that ‘‘only a reckless man’’ could

have believed the things Porter had to say. [Citation].

(App. 34).

mae Ty

17

Both reporters testified that they believed that Porter

was telling the truth (R.T. 1722, 2369, 2751), because of

risks he was taking by stepping forward and putting his

charges in an affidavit (R.T. 2058). Moreover, respon-

dent reporters did find substantial evidence during their

18-month probe, which, in their minds, tended to confirm

Porter’s allegations. This included accusations by attor-

neys and journalists that petitioners had engaged in un-

ethical conduct toward witnesses and accused persons in

several other criminal cases, evidence of unethical be-

havior toward Porter, Lee and May Tom in prosecuting

the Lee case, and documents establishing the existence of

a bargain negotiated between Porter and the authorities

in exchange for his testimony." The reporters also learned

Petitioners’ summary of the testimony of Bergman and

Ramirez is misleading in suggesting that they doubted Porter's

veracity. Bergman’s testimony that it was important to find

someone who could corroborate Porter was not a statement, or

even suggestion, that he doubted Porter; indeed, he denied

doubting the truth of the Porter allegations in response to the

very next question. (R.T. 2616). In the cited passage, Bergman

stated only that if Porter's crime partner could corroborate

Porter, she would be an important witness. (/d.)

Similarly misleading is the citation to Ramirez’s testimony

that he did not believe portions of Porter's testimony. Ramirez

testified that he found some of the details of the Porter affida-

vit to reflect the exaggerated recollection of an inmate who was

somewhat disorganized in his thinking. (R.T. 1674, 1694-1710,

2570-73, 2611-14, 2745). He did not disbelieve Porter, but

thought that he met with the prosecutor numerous times and

that making money io pay Sybil’s bond meant reducing the

amount of bond, which the prosecutor would be able to do.

(R.T. 1714-17).

3The details on these charges are set out in the California

Supreme Court’s opinion at Anp. 18-21. An example is the

(Continued on following page)

race 18

of a strained relationship between the San Francisco

Police Department and the Chinatown community, leading

to an inability to investigate Chinatown homicides, which

in their minds furnished a backdrop against which the

Porter story was plausible.“

(Continued from previous page)

testimony of May Tom, who told numerous attorneys and

writers, and repeated to Ramirez, and placed in a signed affi-

davit, that she was mistreated by petitioners in the Richard

Lee investigation and prosecution. She alleged that in their

zeal to convict Richard Lee, they bullied and lied to her; in

response to her expressed uncertainty about her identification

of Lee, they told her falsely that there were other witnesses

against Lee. (C.T. 82-83; R.T. 2104, 2151, 2159, 2254, 2722, 2725,

3984, 4050).

In addition to the evidence in the record, respondent re-

porters learned of misconduct petitioners towards another

inmate in custody, which respondents were barred from telling

the jury. According to respondents’ offer of proof, the reporters

were told by attorneys that petitioners McCoy and Erdelatz had

obtained a confession from an accused person in custody in

Louisiana without the presence of his lawyer in violation of an

outstanding order and had misrepresented facts in connection

with the confession under oath. The confession was ultimately

ee by a Superior Court judge. The reporters were also

told that petitioners McCoy and Erdelatz had been aware that

' Louisiana authorities were physically abusing the inmate—be-

cause they were outside the door it occurred—did noth-

ing to intercede, but questioned the inmate, who showed phy-

sical marks from the abuse, the following day. (R.T. 492-93,

671-82). The exclusion of this state of mind evidence was one

of the issues raised on appeal, but not decided by the California

Supreme Court.

4Some police officers were considered hostile to the Asian

community for racial reasons and for a perceived failure to

cooperate with police investigations, which could have led to

a mounting frustration and eagerness to obtain a conviction

at any price in a Chinatown homicide case. The trial court

barred the reporters from introducing evidence on this aspect

of their investigation. (R.T. 2132, 2138, 2152-53, 2202-06, 2414-

17, 2793, 2797). This was one of the issues briefed, but not de-

cided by the California Supreme Court.

TN

19

Petitioners’ claim that the reporters were unable

directly to corroborate Porter’s allegations—and that they

therefore should not have published the fact that he had

put them into a sworn affidavit—is a contention that the

California Supreme Court correctly rejected. Government

misconduct of the kind charged by Porter is inherently in-

capabie of objective proof. The reporters learned from

high-ranking officials in San Francisco’s justice system,

including the District Attorney and Undersheriff, that

the lack of a paper trail should not be construed as evi-

dence that the Porter allegations were untrue (R.T. 1723,

2147, 4393)."° Moreover, Porter’s accusations involved

conduct which could hardly be expected to have witnesses."

Petitioners stress that the jail records did not document

Porter's claim that he was removed from his cell on numerous

occasions to meet with petitioners and to obtain treatment for

a cyst caused by a blow from petitioner Erdelatz. They point to

the testimony of their witness, Frank Heugle, who stated that

these absences should have been recorded. (Pet. 7, n.3). How-

ever, Heugle’s own testimony on cross-examination showed that

the jail record system was confused and subject to error. (R.T.

2936-39). Heugle’s superior, the Undersheriff of San Francisco,

testified on respondents’ behalf that he told Ramirez that the

jail records were totally unreliable. (R.T. 2147-51, 4393). More-

over, Ramirez had posed as a deputy sheriff in researching an

article about the San Francisco jails system, and thus knew from

firsthand observation that the record system was subject to

error. (R.T. 1949).

This aspect of the case—where the weight of the evidence

clearly favored respondents—is a good illustration of the in-

adequacy of petitioners’ case for malice and their presentation

of the issue in this petition. Under any interpretation of Bose,

the California Supreme Court was justified in concluding, after

its independent review of the record, that a jury could not find

that the lack of an official jail record furnished grounds for

finding that the reporters harbored actual doubts about the

truth of their articles.

In support of their claim that the California Supreme Court

was obligated to uphold the jury verdict, petitioners point to a

(Continued on following page)

ee

20

It was well within the California Supreme Court’s pro-

vince to conclude that this absence of direct corroboration

of events which would rarely be subject to direct proof

could not sustain a finding that the reporters actually

doubted the truth of their articles.

The other evidence of ‘‘reckless disregard’’ cited by

petitioners again illustrates the mechanical approach to

this case which the California Supreme Court correctly

rejected. Petitioners present a few incidents which estab-

lish, at most, departures from a journalistic ideal.'? They

(Continued from previous page)

passage of Ramirez’s testimony in which “Ramirez also acknow-

ledged that he was never able to confirm the charges of brutal-

ity and threats (R.T. 1639:19-22).” (Pet. 13). In context, the

transcript shows that Ramirez was asked whether “any indi-

vidual” confirmed the brutality and threat charge; Ramirez re-

sponded that “[a]ccording to his [Porter’s] story, it happened

in an elevator with only the two police officers present” (R.T.

1993) and that therefore there was no witness who could give

direct confirmation of the charges. Of course, the only people

who could directly confirm the incident were petitioners, who

refused to speak with the reporters about the Lee case prior

to publication. ;

Petitioners continue to stress that the reporters were un-

able to locate any of the three people to whom Porter said that

he told his story. The reporters’ vigorous investigation, however,

never disproved the existence of these people, and, as the Cali-

fornia Supreme Court observed, Porter confirmed the existence

of one of them even when he testified by deposition on peti-

tioners’ behalf. (App. 35, n.30).

Petitioners cite an incident where the reporters failed to

reinterview a witness, and a minor, nondefamatory error printed

after publication of the articles which form the basis for the

defamation charge. (Pet. 9, n.4, 5).

(Continued on following page)

21

do not, even standing alone, furnish evidence from which

a jury could reasonably have concluded that the reporters

harbored actual doubts about the truth of their publication.

In addition, the California Supreme Court was entitled,

indeed obligated, to review all of the evidence submitted.

Having done so, the Court was manifestly correct in its

unanimous conclusion that a jury could not reasonably find

actual doubt in light of the reporters’ 18-month investiga-

tion, and the corroboration it produced of the articles’ cen-

tral thesis that the Richard Lee case deserved reexamina-

tion by the courts.

(Continued from previous page)

As the California Supreme Court concluded, the reporters’

failure to interview an attorney contacted by Richard Lee had

no relevance to the defamation charge, as it was undisputed

that the attorney had no knowledge of any of the allegedly

defamatory accusations made by Porter. (App. 37-38). The re-

porters testified that they failed to follow up with the attorney

because they had contacted him for a limited purpose—to con-

firm that Lee had sought counsel—close to publication of the

articles, and that they believed Lee, who allowed them to inter-

view the lawyer by waiving his attorney-client privilege but ad-

vised them that any information the lawyer would have would

be irrelevant to the Poole Leong murder. (R.T. 1733, 2685).

The error concerning John Manning’s visit to Porter was

simply that—a mistake, with a reasonable explanation. Bergman

had mailed clippings about Chinatown to John Manning, to in-

form the Indiana attorney about conditions in San Francisco's

Chinatown. Manning showed those clippings to Porter during

his initial interview with the inmate, who was very interested in

them. In a telephone conversation, Manning related this inci-

dent to Ramirez, who misunderstood the timing of the visit. The

trial court barred Ramirez from explaining to the jury how this

error had occurred. (R.T. 1905-07). That ruling is one of the

evidentiary rulings that respondents challenged on appeal. Even

on the incomplete record, no jury could reasonably find malice

from the error, which had no relation to the allegedly defama-

tory material.

22

II. THERE IS NO REAL CONFLICT IN THE RE-

PORTED DECISIONS FOLLOWING BOSE

CORP. V. CONSUMERS UNION OF U.S., INC.

The question petitioners seek to have this Court re-

view was actually settled by the decisions of this Court

reaching their conclusion in New York Times Co. v. Sulli-

van and Bose Corp. v. Consumers Union of U.S., Inc. The

California Supreme Court devoted several pages of its -

opinion in its independent review of the whole record.

The cases decided after Bose applied no different prin-

ciple.

In the cases cited by petitioners, there was a direct

conflict in the testimony of the plaintiffs and the authors

of the publication. There was no such direct conflict be-

tween witnesses in the present case: Porter’s deposi-

tion testimony was not in direct conflict with that of re-

spondents. In reaching its verdict, the jury was required

to draw inferences from Porter’s inconsistencies and to

compare those inferences with the remainder of the evi-

dence relating to actual malice. Porter’s deposition testi-

mony did not allow this to be a ‘‘look them in the eyes’’

case, as in Dombey v. Phoenix Newspapers, Inc., 159 Ariz.

476, 724 P.2d 562, 576 (1986), or one where the parties

directly contradicted each other without any room for dis-

pute as in Tosti v. Ayik, 394 Mass. 482, 476 N.E.2d 928,

936 (1985). In this case, the jury was required to draw in-

ferences from testimony with inherent complexities in ap-

23

plying the constitutional standard. See Time v. Pape, 401

U.S. 279, 284-86 (1971).18

fa’

Vv

CONCLUSION

For the foregoing reasons, the writ of certiorari

should be denie ..

Respectfully submitted,

ArtTHUR BRUNWASSER*

Marcaret C. Crosspy

Auan L. ScHLOSSER

Epwarp M. CHEN

Attorneys for Respondents

Raul Ramirez and Lowell

Bergman

* Counsel of Record

April 13, 1987

San Francisco, California

'8There are other significant distinctions between this case

and any cited cases which account for any apparent conflict

in applying the principles of New York Times and Bose. For

example, the Virginia Supreme Court applied the actual malice

standard only to the issue of punitive damages. Gazette, Inc. v.

Harris, 325 S.E.2d 713, 727 (Va. 1985). The Second Circuit case

of Larmin v. Flynt Dist. Co., Inc., 745 F.2d 123, 140-41 (2d Cir.

1984), is completely consistent with the decision of the California

Supreme Court because the Second Circuit found insufficient

evidence of actual malice to create a jury question.

Petitioners also refer to Starkins v. Bateman, 150 Ariz. 537,

72 P.2d 1206 (1986), and Anderson v. Liberty Lobby, Inc. to sup-

| port their contention of a conflict in the reported decisions.

| Starkins v. Bateman was decided by the Court of Appeals of

| Arizona, an intermediate appellate court. It is not a state court

of last resort under this Court’s Rule 17.1(b). Anderson v.

Liberty Lobby, Inc. determined only under what circumstances

) summary judgment should be denied in defamation cases. It

did not make any effort to describe the procedure to be fol-

lowed by the reviewing court in making its independent review

of the whole record after a jury verdict.

a