THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

Judges call him to defend their honor

Boston lawyer relishes potential libel cases

Howard M. Cooper is a partner in the downtown firm of Todd & Weld. Howard M. Cooper is a partner in the downtown firm of Todd & Weld. (Jonathan Wiggs/ Globe Staff)
By Jonathan Saltzman
Globe Staff / June 1, 2010

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Get me Howard Cooper.

From the Virgin Islands to New Hampshire, that has become the rallying cry for an increasing number of judges who feel they have been libeled by media outlets and want a ferocious litigator to file a lawsuit, or threaten one.

Since the Boston lawyer won a $2 million lawsuit on behalf of Superior Court Judge Ernest B. Murphy against the Boston Herald in 2005, Howard M. Cooper has become the go-to attorney for judges inside and outside Massachusetts who feel defamed by news reports about how they handled cases.

In addition to bringing libel suits on behalf of two judges, Cooper has represented at least five other aggrieved jurists who extracted corrections or apologies from media outlets that include the Concord Monitor in New Hampshire, the Fitchburg Sentinel & Enterprise, and the “Dennis & Callahan’’ radio show.

Several of his clients said they had felt powerless because rules for judicial conduct prohibited them from speaking out on cases that had, or might, come before them. But they had to do something, they said, because their reputations had been savaged.

“If I don’t care about damage to my reputation, I might as well die,’’ said recently retired Virgin Islands Superior Court Judge Leon A. Kendall, whom Cooper represented in a lawsuit against the Virgin Islands Daily News over stories on his bail rulings. “You can’t be printing lies about public officials under the guise of the First Amendment.’’

A jury sided with Kendall in March and awarded him $240,000. But the trial judge threw the verdict out Thursday, ruling that the evidence presented by Cooper lacked the “convincing clarity which the constitutional standard demands.’’

Cooper said he will appeal.

Kendall said he called Cooper, some 2,500 miles from St. Thomas, because he knew of no attorney in the Virgin Islands who had represented a judge in a libel suit. “It was one of the best decisions I made in my life,’’ he said.

Cooper, an aggressive cross-examiner who is a partner in the downtown firm of Todd & Weld, said that all of his clients on the bench were reluctant to hire a lawyer. Unfortunately, he said, negative reports had whipped up media firestorms that made it difficult for the judges to do their jobs.

“Judges are people, too, and they have the right for the media not to intentionally or recklessly disseminate false information about what they’re doing on the bench,’’ said the 50-year-old attorney.

Not everyone is thrilled that judges are increasingly turning to a high-powered litigator over news coverage.

It would be one thing, said Tom Fiedler, dean of Boston University’s College of Communication, if Cooper’s clients were judges who had to run for reelection following defamatory media coverage. But his clients were all appointed and could serve until age 70, although they could be subject to disciplinary proceedings. They did not have to worry about defamatory reports derailing their careers and should have refrained from such a drastic step, Fiedler said.

“To take this kind of action clearly has a chilling effect, and that is contrary to what we want in our civil society,’’ said Fielder, a former executive editor of the Miami Herald. “We’ve tolerated a very boisterous press because, in general, it’s important to have that watchdog to run around free and even make mistakes.’’

Bruce W. Sanford, a Washington lawyer who unsuccessfully appealed the libel verdict against the Herald to the Massachusetts Supreme Judicial Court, said, “There’s something unattractive about judges suing to recover money damages when they, above all other officials, should be used to criticism and commentary on their judicial decisions.’’

However, Cooper countered that the defamatory reports went way beyond legitimate criticism. Libel law, he added, sets a very high standard for judges to win such suits, if they actually file them.

As public officials, judges must prove not only that offending news stories are false and defamatory; they must show by “clear and convincing’’ evidence that the news outlet acted with actual malice, meaning it knew what it was publishing was false. Despite that heavy burden, Cooper was able to persuade juries that both judges he represented had been libeled, although the Virgin Islands verdict was later set aside.

It was Cooper’s work for Murphy in the widely covered suit against the Herald that transformed the lawyer into a combination of patron saint and junkyard dog for aggrieved judges.

Murphy, a former trial lawyer, sought Cooper out in part because they had known each other personally since the mid-1990s, when they represented codefendants in a civil case, Cooper said.

In one of the largest libel judgments in Massachusetts history, a Suffolk Superior Court jury in 2005 ordered the Herald to pay $2.09 million in damages for articles that portrayed Murphy as soft on crime.

The 2002 stories, which began with a front-page article headlined “Murphy’s Law,’’ generated widespread outrage by quoting anonymous sources as saying that the judge, who was sitting in New Bedford at the time, had declared of a 14-year-old rape victim, “tell her to get over it.’’ Hate mail deluged Murphy’s office.

Murphy testified that he had said the victim would need help to get over the attack.

Since that career-defining verdict, Cooper has gotten calls from 10 to 20 other judges in Massachusetts and elsewhere, he said.

Among those who hired him are Kendall, who sued the Virgin Islands paper over 16 news stories and an editorial published between 2005 and 2009 that focused on his bail rulings; Massachusetts Appeals Court Justice Mitchell J. Sikora Jr., who got the Herald to print what the paper called a “clarification’’ for incorrectly reporting he was insensitive to a crime victim at a 2002 sentencing as a trial judge; New Hampshire Superior Court Judge Gillian L. Abramson, who got the Concord Monitor to apologize last year for an incorrect report on how she handled a convicted sex offender’s case; and Massachusetts District Court Judge Edward J. Reynolds, who received an apology in 2005 from the Sentinel & Enterprise for incorrect reports on how he handled criminal cases.

Cooper has also represented plaintiffs in libel suits who don’t wear robes, including Tom Scholz of the band Boston. Scholz accused the Herald this year of defaming him by writing in 2007 that bandmate Brad Delp’s former wife, Micki, blamed Scholz for Delp’s suicide.

None of the media outlets whom the New England judges complained about would comment on Cooper recently. Kevin A. Rames, the lawyer for the Virgin Islands Daily News in the Kendall suit, said Cooper is a “capable litigator’’ who “made an entertaining presentation to the jury’’ but had the weaker case. Rames said he was surprised when the jury sided with Kendall and was not surprised when the trial judge tossed the verdict.

Like several of Cooper’s other judicial clients, Edward Reynolds, now 72 and retired from the bench, said he wasn’t keen on paying a private attorney out of his own pocket to defend his reputation. But he has lived in Leominster all his life and has nine children and 23 grandchildren, he said, and the last thing his family needed was to be asked around town why Reynolds let dangerous criminals walk the street.

“I would say I should be strung up, if that’s what I did,’’ Reynolds said, his voice rising. “But guess what? That’s not what I did.’’

Jonathan Saltzman can be reached at jsaltzman@globe.com

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