Reply Brief — Kerr v. El Paso Times, Inc.

re _ Supreme Court, U.S.

: io 2 2 ee:

No. 86-1192 MAR 3 1987

JOSEPH F. SPANIOL, JR.

TLERK

no

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1986

JAMES W. KERR, JR., PETITIONER

-

EL PASO TIMES, INC., RESPONDENT

ON PETITION FOR A WRIT CERTIORARI TO THE

COURT OF APPEALS FOR THE EIGHTH DISTRICT

OF TEXAS

PETITIONER'S REPLY MEMORANDUM

Jerry A. Gibson#

600 Interfirst Fin. Ctr. N.W.

P.O. Box BHOO2

San Antonio, Texas 78201

(512) 734-7092

Carrie K. Catalani

600 Interfirst Fin. Ctr. N.W.

P.O. Box BHOO2

San Antonio, Texas 78201

(512) 734-7092

ATTORNEYS FOR PETITIONERS

*Counsel of Record

— a OT a Fina 7 aes

TABLE OF CONTENTS

Sep se O... Riese «6 © «4 « + » «© BS

Argument

I.

te

oe eee a eo ee ee ee ee

The Clear and Convincing

Evidence at Trial Establshed

that The "Cheating" Accusation

Was Made with Actual Malice .. 2

The Supreme Court Does Not

Have Jurisdiction To Rule On

Texas Law In This Petition

For Writ of Certiorari .... 10

ONG LIOR a. kk Oo ES ES Ce Se EG

TABLE OF AUTHORITIES

Carson v. Allied News Co.,

529 F. 2d 206,

(7th cir. 1976) .

Chandler v. Florida, 449 U.S.

560, 101 S.Ct. 802, 66

ce. Be OO (99061) -..« ...

Cochran v. Indianapolis Newspaper,

iInc., 372 N.E. ed 1211

Ee oy: 3 ee a ae

Curtis Publishing Co., v. Butts,

=e 0.8; -130, 87 8.ct.

18, L.Ed. 2d 1094,

rehearing denied, 389 U.S.

889 1975 (1967) ..

El Paso Times, Inc., v. Kerr,

706 S.W. 2d 797

(Tex.App. - El Paso 1986,

writ ref'd n.r.e.)

Goldwater v. Ginzburg, 414 F. 2d

324 (2d cir. 1979),

cert. denied, 396 U.S. 1049,

ii

4,8

+s 3,6

90 S.Ct. 701, 24 L.Ed. 2d

695, rehearing denied, 397

Usd. OTS COTO) sce cs win ue be 6G,9

International Longshoremen's Assoc.,

DoF alten ng GsdeOs Ve Davis,

U.S. » 106 S.Ct. 1904,

90 L.Ed. 24 389 (1966) . . «-« «sil

Morrison v. Nissan Motor Co.,

601 F. 2d 139

(4th cir. 1979) e e ° * . e * a . © 6

New York Times Co., v. Sullivan,

376 U.S. 254, 84 S.Ct. 710, 11

LeEd. 24 686 (19604) 2. 2s we ee a #

Sprouse v. Clay Communications, Inc.,

211 S.E. 2d 674

(W.Va. 1975), cert. denied, 423

U.S. 882, 965 S.Ct. 185, %6

L.Ed. 2d 107, rehearing denied,

N23: U.6. FOL (ITS) 6 ee ew 8 6 YG

St. Amant v. Thompson,

$96..0.5.. 727, 08 6 .c¢.

L3234 20 Like. 26 262 (2966). °8.° 7

>

Vandenburg v. Newsweek, Inc.,

507 F. 2d 1024

CSU Che so 20S as ia el ee a ee ee

28 U.S.C.A. §1257 (3) (West 1984) ... il

iv

No. 86-1192

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1986

JAMES W. KERR, JR., PETITIONER

Ve

EL PASO TIMES, INC., RESPONDENT

ON PETITION FOR A WRIT CERTIROARI TO THE

COURT OF APPEALS FOR THE EIGHTH DISTRICT

OF TEXAS

PETITIONER'S REPLY MEMORANDUM

Respondent, in its opposing brief in

No. 86-1192, raises two new questions

which were not addressed in Petitioner's

Petition for a Writ of Certiorari.

Respondent has urged this court to

consider whether or not the newspaper

article was published with actual malice

and whether Texas law required

judgment for Respondent. (Brief In

Opposition, p.12-20).

Petitioner presents this Reply

Memorandum to respond to the two new

arguments. Neither argument is properly

brought before this court. The Court of

Appeals for the Eighth District of Texas

did not consider the sufficiency of the

evidence on the issue of actual malice.

Even so, the trial court record is filled

with clear and convincing evidence of

Respondent's actual malice in support of

the jury's finding of such. Furthermore,

this court does not have jurisdiction to

consider whether Texas law was properly

applied by a Texas court.

I.

The Clear And Convincing Evidence

At Trial Established That The "Cheating"

=n Don

a eT wm

Accusation Was Made With Actual Malice.

Preliminary, the question regarding

sufficient evidence of actual malice is

not properly before this court because it

was not the basis of the holding in the

Court of Appeals for the Eighth District

of Texas. See El Paso Times, Inc., v.

Kerr, 706 S.W. 2d 797, 798(Tex.App. - El

Paso 1986, writ ref'd n.r.e.) (appellant's

points of error regarding whether the

article was a constitutionally protected

expression of opinion were "determinative

of this appeal"). The Court of Appeals

based its decision only on the

constitutional distinction between a

Statement of fact and a statement of

opinion. Thus, Respondent's newly raised

question as to actual malice is improper

for consideration by this court.

Petitioner recognizes that in order

for the article to be actionable, the

Respondent must have acted with actual

malice in making the cheating accusation,

such that the accusation was made with

knowledge of its falsity or was made in

reckless disregard of its truth or

falsity. New York Times Co., v. Sullivan,

376 U.S. 254, G4 &.Ct. 710, 11 L.A. 20

686 (1964). Many pieces of evidence of

actual malice, however, were presented

to the jury at the trial court level which

cumulatively joined together to meet the

clear and convincing burden of proof.

Other courts have recognized that

cumulative evidence can be clear and

convincing proof of actual malice. See

Curtis Publishing Co. v. Butts, 388 U.S.

130, 157-59, 87 S.Ct. 1975, 1992-93, 18

L.Ed. 2d 1094, rehearing denied, 389 U.S.

889 (1967) (finding of actual malice

affirmed where evidence showed story was

not "hot news", story should have been

investigated but was not, and independent

Support for story was not gained);

Goldwater v. Ginzburg, 414 F. 2d 324,

339-40, cert. denied, 396 U.S. 1049, 90

S.Ct. 701, 24 L.Ed. 2d 695, rehearing

denied, 397 U.S. 978 (197G) (2d cir. 1979)

(jury finding of actual malice affirmed

where evidence showed story was not "hot

news", defendants were aware of possible

harm, and only sketchy investigation was

done). A brief summary of some of the

evidence presented to the jury in the

current case shows that the jury's finding

of actual malice was supported by clear

and convincing evidence.

For example, Ron Dusek the newspaper

reporter for the article in question,

testifed that he intended the readers to

believe that Petitioner (Kerr had

conducted himself unethically during the

trial, but that he had no evidence that

Kerr had cheated with regard to the

handling of the code name list in the de

la Torre trial. (S.F. 68, 118-120). The

Appellate Court which heard this case also

recognized that "[Lals far as the record

before us in concerned, there is no

evidence that Kerr either lied or

cheated." El Paso Times, ine., V. Kerr,

706 S.W. 2d at 799. Petitioner urges this

court to consider that the jury heard

Dusek's testimony and had the opportunity

to watch his mannerisms. Proof that Dusek

accused Kerr of cheating when Dusek knew

it was false depended to some extent "on

the credibility of the witness[{], which

can best be determined by the trier of

facts after observation of the demeanor of

the witness{] during direct and cross

examination." Morrison v. Nissan Motor

Co., 601 F. 2d 139, 141 (4th cir. 1979).

Respondent told this court that Dusek

believed everything he printed was true.

(Brief in Opposition, p.12-16). However,

this Honorable Court has recognized that:

"(t]he defendant in a defamation

i

action ... cannot... automatically

insure a favorable verdict by

testifing that he published with the

belief that the statements were

true. The finder of fact must

determine whether the publication was

indeed may in good faith." St. Amant

v. Thompson, 390 U.S. 727, 732, 88

S.Ct. 1323, 20 L.Ed. 2d 262 (1968).

The evidence also established that

El Paso Times, iInc., published the

article with reckless disregard for its

truth. It was established for the jury

that there were no time constraints to

publish this article, since it was not a

"hot news" item. The jury could fairly

consider the absence of time pressure when

deciding on the presence of actual

malice. See Carson v. Allied News Co.,

[ae fs we 200, 211 (Tth cir. 1976);

Vandenburg v. Newsweek, Inc., 507 F. ed

1024, 1026 (5th cir. 1975) ("when the

story is not hot news ee the

investigation must be more thorough").

Ed Foster, a former editor for the

El Paso Times , denied having edited the

article even though Dusek testified that

the article was placed on Foster's desk

for his review. (S-F. 336). Foster

testified that he was unaware of anyone

inquiring into the accuracy of the

article, although the charges in the

article were so startling and obviously

damaging that he would have initiated a

serious inquiry before publication.

(S.FP. 316, 325).

In addition, the article as a whole

evidences that it was a hatchet job on the

law enforcement agencies discussed, which

is a factor to be considered when

determining if the publication was a

knowing and reckless falsehood. See C.K.

Curtis Publishing Co. v. Butts, 388 U.S.

at 169 (defendant had adopted a program of

nt

"sophisicated muckraking designed to

provoke people, and make them mad");

Goldwater v. Ginzberg, 414 F. 2d at 342

(evidence of ... motive and intent may

help establish actual malice); Cochran v.

Indianapolis Newspapers, Inc., 372 N.E. ed

1211, 1220 (Ind. 1978) (desire to get

plaintiff is relevant and is admissible as

evidence in determining whether defendant

possessed a state of mind highly condusive

to reckless disregard of falsity). The

Supreme Court of West Virginia agreed with

such analysis when it stated:

"(p]Jersonal motives on the part of a

newspaper, or participation of a

newspaper in a plan or scheme _ to

injure is evidence of recklessness

and willful disregard for truth which

may be considered along with other

evidence on the question of actual

malice." Sprouse Vv. Clay

Communications, Ine., 211 S.E. edd

674, 688 (W. Va. 1975), cert. denied,

423 U.S. 882, 96 S3.0e. 3605, a6 1. eo,

2d 107, rehearing denied, 423 U.S.

991 (1975).

This is only a partial list of the

evidence which was presented to the jury

at the trial court level on the issue of

actual malice. When each of these pieces

are added together, Petitioner clearly met

his burden of showing by clear’ and

convincing evidence that Respondent

published the cheating accusation knowing

that it was false or in reckless disregard

of its truth or faleicy, Thus, no

constitutional protections are available.

II.

The Supreme Court Does Not Have

Jurisdiction To Rule On Texas Law In This

Petition For Writ of Certiorari.

The jurisdiction of the Supreme Court

to review a judgment by the highest court

of a state by writ of certiorari is

defined in 28 U.S.C.A. §1257 (3) (West

1984). The statute clearly states that

the Supreme Court's jurisdiction is

limited to questions regarding the "the

validity of a treaty or statute of the

United States ... or where the validity of

a state statute is drawn in question on

the ground of its being repugnant to the

Constitution". a8. 8.3.6.4. $1257 (3)

(West 1984).

Respondent's request for the court to

consider Texas law on the Petition for

Writ of Certiorari is inappropriate. This

court has recognized that it does not have

the jurisdiction to evaluate a state

court's interpretation of state law. See

International Longshoremen's Assoc.,

Auk ole = Sak sVe Ve Davis, pets 0.5. a 106

S.Ct. 1904, 1910, 90 L.Ed. 2d 389 (1986)

(Supreme Court has "no authority to review

state determinations of purely state

law"); Chandler v. Florida, 449 U.S. 560,

=jl-

569, 101 S.Ct. 802, 807, 66 L.Ed. 2d 740

(1981) ("in reviewing a_ state-court

judgment, [the Supreme Court is] confined

to evaluating it in relation to the

Federal Constitution").

Regardless of the foregoing,»

Petitioner asserts that Texas law does not

require judgment for Respondent.

Petitioner would refer this court to the

Brief for Appellee which Petitioner filed

in the Court of Appeals for the Eighth

District of Texas. The argument and

authorities under Appellee's Reply

Point No. 3 clearly state that there was

factually sufficient evidence of

compensable mental anguish and injury to

Kerr's reputation. (Brief for Appellee,

p.35-48).

The only proper federal question

before this court is whether a newspaper

article statement which falsely and

maliciously accused Petitioner, James

-12-

W. Kerr, JP es of cheating in the

prosection of a drug smuggling case was an

actionable statement of fact or was a

protected expression of opinion. Neither

of the new matters which Respondent raised

in his Reply Brief were the basis of the

decision made by the Court of Appeals for

the Eighth District of Texas. They are

inappropriate for consideration by this

court. The trial court record establishes

actual malice by clear and convincing

evidence anyway. Furthermore,

Respondent's argument regarding Texas law

is clearly beyond the jurisdiction’ of the

Supreme Court.

CONCLUSION

For the reasons set forth above, as

well as those which have been urged in the

Petition, Petitioner respectfully prays

that this Petition for Writ of Certiorari

should be granted to review the Judgment

and Opinion of the Court of Appeals for

-13-

Jerr son

600 /lr rPPMirst Fin. Ctr. N.W.

./ BOR” BHO02

Samy Antonio, Texas 7820

Counsel of Record

Carrie K. Catalani

ava T os D4 . AI old

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