McCoy v. Hearst Corp.

Decision Date23 October 1985
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 184 Cal.App.3d 277 184 Cal.App.3d 277, 12 Media L. Rep. 1313 Frank McCOY, et al., Plaintiffs and Respondents, v. The HEARST CORPORATION, et al., Defendants and Appellants. A011833.

E. John Kleines, Kleines, Ballati & Getchell, San Francisco, Arthur B. Hanson, Hanson, O'Brien, Birney & Butler, Washington, D.C., for defendants and appellants The Hearst Corp., et al.

Margaret C. Crosby, Arthur Brunwasser, San Francisco, for appellants Ramirez & Bergman.

Charles O. Morgan, Jr., San Francisco, for plaintiffs and respondents McCoy, et al.

HANING, Associate Justice.

Defendants/appellants Hearst Corporation, publisher of the San Francisco Examiner (together, Examiner), and its reporters Raul Ramirez and Lowell Bergman (collectively appellants) appeal from a libel judgment against them in favor of San Francisco Police Officers Frank McCoy and Edward Erdelatz and former Deputy District Attorney Pierre Merle (collectively respondents). Each respondent was awarded $500,000 compensatory damages and $500,000 punitive damages against the Examiner, and $250,000 compensatory and $10,000 punitive damages against Ramirez and Bergman each.

The judgment was based on a series of articles published in the Examiner under the by-line of Ramirez, assisted by Bergman. 1 In substance, the articles charged respondents with intimidating and threatening witnesses and surbornation of perjury The key prosecution witness in Lee's trial was Thomas Henry Porter, a convicted felon and Lee's former cell mate. Porter testified that Lee admitted Leong's murder to him when the two of them were in jail together awaiting their separate, unrelated trials. The published articles charged that Porter's testimony during Lee's trial was false, that respondents knew it to be false and that respondents engaged in threats, physical coercion and bribery to force Porter into testifying falsely in order to obtain Lee's conviction.

                in the criminal trial of People v. Richard Lee.   Lee was convicted in San Francisco in 1972 of the first degree murder of Poole Leong, a Chinese youth, allegedly because of on-going disputes between rival youth gangs in San Francisco's Chinatown district

Approximately two years after the trial Lee's brother approached Bergman, a free-lance reporter, about investigating the events surrounding the case. Bergman became interested and during the course of his investigation located Porter in a federal prison in Indiana. He wrote Porter and advised him he was a "journalist and researcher investigating the murder trial of Richard Lee." He also stated: "In addition, I am interested in your own history and present status." He asked Porter to call him collect.

Porter responded by telephoning Bergman and the two arranged for Bergman to visit Porter in prison. Bergman thereafter met with Porter in January 1975. The substance of their conversation and the manner in which a statement was obtained from Porter forms the basis for the judgment below. Respondents claimed that Bergman persuaded Porter to sign a false affidavit wherein Porter stated that his testimony during the Lee trial was false, was induced by beatings and threats to his life by McCoy and Erdelatz, by promises from respondents of leniency for his girl friend who was also facing charges at that time, and a concurrent sentence on his own charges. Porter also swore in the affidavit that Merle prepared a written script of his false testimony which he was required to memorize and relate to the jury. Respondents further claimed that Porter's affidavit was obtained through promises by Bergman to have a California detainer on Porter removed. 2

In April 1975, Bergman persuaded the Examiner to publish a story about the Lee case and the roles of Porter, Merle, McCoy and Erdelatz therein. Ramirez, an Examiner staff reporter, was assigned to write the story and Bergman was to have exclusive responsibility for obtaining Porter's version of the facts. Bergman obtained an attorney in Indiana, John Manning, to visit Porter and secure a signed affidavit in which Porter related the defamatory allegations.

The articles were published in the Examiner on May 19, 20 and 21, 1976. In addition to the charges that respondents conspired to suborn perjury, the articles also stated erroneously that Merle had been disciplined by the State Bar in connection with a separate matter. Respondents demanded a retraction pursuant to Civil Code section 48a, 3 but received no response.

After Lee's petition for habeas corpus was filed seeking relief on the basis of Porter's affidavit, the People obtained a second affidavit from Porter in which he recanted his initial affidavit for Bergman and reaffirmed his testimony given during the Lee trial. He admitted he signed the initial false affidavit at Bergman's request in exchange for Bergman's help in removing the hold imposed by his California detainer.

The relationship between Bergman and Porter and appellants' numerous contentions of error are discussed hereafter as they relate to the issue under discussion.


In the leading case of New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the United States Supreme Court held that First Amendment principles require that public officials suing for libel must, as a prerequisite to recovery, establish by clear and convincing evidence that the defamatory publication is false and that it was published with "actual malice," which the high court defined as knowledge that the statement was false, or reckless disregard of whether it was false or not. (Id., at pp. 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686.) Respondents concede their status as public officials within the New York Times rule. (See, e.g., Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 352, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789; Gomes v. Fried (1982) 136 Cal.App.3d 924, 933, 186 Cal.Rptr. 605.)

New York Times also required appellate courts in such cases to " 'make an independent examination of the whole record' " to assure "that the judgment does not constitute a forbidden intrusion on the field of free expression." (New York Times Co. v. Sullivan, supra, 376 U.S. at p. 285, 84 S.Ct. at p. 729; Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502; St. Amant v. Thompson (1968) 390 U.S. 727, 732-733, 88 S.Ct. 1323; Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 389, 102 Cal.Rptr. 122.) "[T]he rule is that we 'examine for ourselves the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.' " (New York Times Co. v. Sullivan, supra, 376 U.S. at p. 285, 84 S.Ct. at p. 728.)

"The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law." (Bose Corp. v. Consumers Union of U.S., Inc., supra, 466 U.S. at p. ----, 104 S.Ct. at p. 1965.) After reviewing the many cases in which it had been applied, the Bose court provided the clearest statement of the rule: "In such cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited." (Id., 466 U.S. at p. ----, 104 S.Ct. at p. 1962; see also Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 11, 90 S.Ct. 1537, 1540, 26 L.Ed.2d 6.) This does not mean, contrary to appellants' view, that we are to disregard the jury's findings concerning credibility of witnesses or permissive inferences which it might draw. Appellate courts are ill equipped to do so. The inflection or tone of voice, the emphasis of expression, the hesitant answer and the general attitude and demeanor of the witness are unavailable to us from the printed record. Our function on review is to "examine the evidence to see whether, if all permissible inferences were drawn in the plaintiff's favor and all questions

of credibility were resolved in his behalf, the evidence then would demonstrate by clear and convincing proof that the libelous material was published with actual malice. Once this question has been resolved in the plaintiff's favor, the jury's findings as to those inferences and as to witness credibility are determinative." (Alioto v. Cowles Communications, Inc. (9th Cir.1975) 519 F.2d 777, 780; Bose Corp. v. Consumers Union of U.S., Inc., supra, 466 U.S. at p. ----, 104 S.Ct. at pp. 1955, 1959; Time v. Hill (1967) 385 U.S. 374, 394, 87 S.Ct. 534, 545, 17 L.Ed.2d 456; Bindrim v. Mitchell (1979) 92 Cal.App.3d 61, 72, 155 Cal.Rptr. 29; Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 433, 142 Cal.Rptr. 304.) "[I]t is for the jury, not for this Court, to determine whether there was knowing or reckless falsehood." (Time v. Hill, supra, 385 U.S. at p. 394, fn. 11, 87 S.Ct. at p. 545, fn. 11.)


Under these guidelines we dispose initially with some preliminary issues. First, we emphasize that we are not dealing with the right of the press to report, criticize or otherwise comment upon the conduct or behavior of public officials. That right is properly and firmly protected by the First Amendment. In New York Times Co. v. Sullivan, supra, 376 U.S. at p. 270, 84 S.Ct. at p. 720, the high court declared a "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." (See also ...

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