Absence of Malice

Mary Fallon

On April 4, 1994 media attorney Paul Hannah was at home watching the evening news on WCCO-TV (Channel 4), the station he'd represented between 1980 and 1992. Suddenly, as Hannah recalls it, his "jaw hit the floor": In a segment of "Dimension"--a part of the broadcast reserved for "long form" stories--investigative journalist Tom Gasparoli was in the midst of reporting that Anoka County resident Terri Stokes was the sole suspect in the grisly murder of her husband. There was no physical evidence tying her to the point-blank, lethal shotgun blast that had killed Dennis Stokes on October 30, 1993, as he slept in the couple's suburban bedroom, and no witnesses. She even had an alibi. But Dennis Stokes's co-workers at 3M believed the police were moving too slowly in solving the case, so they called Gasparoli and he made inquiries. He learned she'd been having an affair. At the time of the shooting, the couple was financially strapped, and Terri Stokes blamed her husband for the debt. Even her own brother believed she may have been involved. What ultimately fueled Gasparoli's report, though--what made it so damning--were the musings of Anoka County investigator Tom Johnson, who, despite a lack of concrete proof, believed he had a killer--and said so.

Johnson: "I think this was a well-planned-out, methodical execution of Dennis Stokes."

Gasparoli: "By his wife?"

Johnson: "I believe so."

Gasparoli: "A person is innocent until proven guilty."

Johnson: "That's true."

Gasparoli: "Do you have any doubts about the direction you are going?"

Johnson: "No, she's the only suspect."

"I was really surprised that Tom Johnson was allowed to say all he was allowed to say," Hannah recalls now, noting that Terri Stokes was never charged in the case. "Stories like these are risky because once you've published the speculation from a public official without backing, then you have to go around and balance your story. That's very difficult to do."

Last Tuesday, August 17, Hannah's jaw dropped again. After sitting through a five-week defamation trial and nearly three grueling weeks of deliberation, a federal civil jury in Minneapolis found that the defendants--WCCO, its owner CBS Inc., Tom Johnson, and Anoka County--did indeed defame plaintiff Terri Stokes in Gasparoli's 1994 "Dimension" report. But they also concluded that neither the detective nor the TV station intended to air a falsehood, nor had they exhibited a reckless disregard for the truth. In lay terms, the jury didn't think Stokes killed her husband, but they also found no malice on the part of the defendants. Stokes would return to her new home in Idaho without a dime in damages.

"What worried me was that the jury would be sitting in the jury box, seeing this story from five or six years ago about a homicide, and, lo and behold, the woman Tom Johnson thought did it would be sitting there in a business suit, walking in and out of the courtroom--no shackles, no handcuffs," says Hannah, who attended the trial as a spectator. "And they'd be thinking, 'It's been six years, and [investigators] still couldn't prove anything. How could a detective say something like that? Maybe he is obsessed. What was WCCO doing giving this guy airtime?' But this jury got it: They didn't punish the messenger."

From day one the civil proceeding garnered a fair amount of attention, combining, as it did, the minutiae of media law with the drama of a high-profile murder trial. In November 1998, months before a jury was to be picked, U.S. District Court Judge David Doty had rejected the defendants' motion for summary judgment by issuing a scathing 41-page opinion that quickened the heart rates of media attorneys nationwide. More often than not, defamation claims are settled in the summary judgment stage; either the judge throws out the case altogether or narrows its focus, encouraging both parties to reach a settlement in lieu of an expensive trial. But Doty did neither. And Stokes's attorney Joe Friedberg no doubt began to salivate.

Not only had the judge refused to grant a summary judgment--Doty concluded that there were questions of fact only a jury could rightfully answer--but he strongly opined there was ample evidence that WCCO (a deep-pocketed news organization) exhibited a negligence in its story that bordered on malice. Yes, at the end of Gasparoli's story the reporter had noted that no murder weapon or physical evidence tying Terri Stokes to the scene had been recovered, and no witness had come forward. But that caveat, Doty believed, didn't do enough to balance out the incriminating words of a self-assured detective. "In fact, as the court has already discussed, the broadcast's one-sidedness goes beyond merely favoring one party's version of events over another," Doty wrote. "Through the use of ambush tactics and distorting visual and editorial techniques, [the media] actively contributed to the impression that Stokes committed the crime."  

The degree of vitriol in Doty's ruling wasn't lost on Hannah: "I'm not sure what got him all honked off. That's not Judge Doty. I've never seen him get that blistering."

Mark Anfinson, a local media attorney whose client list includes City Pages, agrees that Doty's words sizzled. Still, to his mind, the judge's interpretation of current law was a stretch: Doty had reasoned that the reporter's failure to check, check, and check again the factual basis of Johnson's statements regarding Terri Stokes amounted to "actual malice," which, in a defamation case such as this, occurs when someone knowingly lies about another person or purposely avoids the truth.

"Given what actual malice means, you just can't find it where a reporter is interviewing an experienced cop who has no prior history of deception," Anfinson argues. "Malice is the most critical bulwark news organizations have against defamation suits. When you have it distorted and badly diluted, as Judge Doty did, it's no longer the same bulwark."

Attorney Friedberg, not surprisingly, disagrees: "It was a realistic statement of what the law is, and a better statement than you will ever find from the Minnesota Court of Appeals or the Minnesota Supreme Court. Their decisions on this matter have been confused, at best."

Doty's opinion on the matter was so forceful that a defendant previously named in the case ended up agreeing to an out-of-court settlement with Stokes. In December 1994, well after Gasparoli's local report, the nationally syndicated TV show American Journal broadcast its own story on the murder. Similar in scope to the WCCO segment, it also tapped detective Johnson as a primary source. So when Stokes first filed her claim, King World Productions, which produces the tabloid show, was also listed as a litigant. Before trial the company paid Stokes an undisclosed sum--sources close to WCCO's defense team put it at $100,000-plus--to cover her considerable legal expenses.

Jan McDaniel, vice president and general manager at WCCO, says neither she nor the station's parent company ever considered following suit. "King World didn't have journalistic integrity at stake. And to me, that's priceless," she insists. "It was a matter of principle. We're a hometown icon. [A settlement] would not only have reflected poorly on the entire broadcast community, but the community itself."

Anfinson agrees that WCCO, which was purchased by CBS in early 1992, was in a tough position. For a network affiliate to settle in the wake of such a harsh rejection of summary judgment would have been very expensive (Friedberg was now casting about in the seven-figure range), and would have also added credence to Doty's position. On the other hand, Anfinson says, to go to trial and endure a flat-out defeat--by way of a quick, unanimous jury decision, say--would send an enduring "chill" through news organizations big and small. Time to call in the best defense attorneys available, and go for broke (which, by McDaniel's estimation, ended up costing CBS between $500,000 and $1 million).

For journalists around the nation, Anfinson continues, the stakes in going to trial were enormous as well: "Public officials are quoted all the time without impunity or without a problem. And when it comes to reporting on unsolved crimes, the community should be privy to that information. Should that be license to gratuitously defame people? Absolutely not. If an officer is engaging in wild speculation, that's subject to a defamation suit. But here you have a reputable detective who had spent months investigating a case. There are all kinds of privileges and protections you have for relying on public officials, and there should be."


By the time Friedberg stood to present his opening argument for the 12-member jury, he'd boiled his case down to one memorable phrase: "Terri Stokes fights back."

Its simplicity--given the defense's warranted fear that a jury might just make WCCO pay for the media's feeding frenzy over O.J., that poor au pair, and Monicagate--made for an entertaining counterpunch to the defense team's reliance on the letter of the law. It also defined a difference in style that would endure throughout the proceedings. The slick, stout Friedberg is a criminal defense attorney by trade--a perfect fit, considering that to make a case for defamation he would first have to establish that Stokes didn't kill her husband. Often appearing for court nattily dressed in wide pinstripes and a power tie, he worked the room like a made-for-TV antagonist. He'd thunder at witnesses, roll his eyes, then frequently object in a huff of exasperation. Did Terri Stokes enjoy the occasional sexual dalliance? Yes, but infidelity does not a murderer make. Could Tom Gasparoli be the best reporter in the nation? Maybe, but he screwed up this time. And what about Tom Johnson? Was he really trying to solve a crime or was he obsessed to the point of losing sound judgment? (Friedberg even tried to prove that the detective was fixated on sex and may have stolen a homemade porn video from the Stokes bedroom.)  

It was a provocative bit of theater designed to provoke an emotionally driven verdict. Friedberg pressed on. In a two-hour closing argument, he contended that if the First Amendment didn't protect the FBI and the press from accusing Olympic bombing suspect Richard Jewell, it shouldn't protect WCCO from dragging Terri Stokes through the mud. The media is arrogant, he concluded with a spit: They have no right to accuse falsely or destroy lives, and for new organizations to lean on the conclusions of a bad cop--a cop who would dare go on TV to convict private citizens in the public eye--was criminal. "You don't have to like Terri Stokes," Friedberg repeated. "I'd be shocked if you liked her. But this is a country where we give justice to people we don't like, as well as those we do."

CBS attorney Michael Sullivan's tastefully tailored suits and understated ties accented a calmer, more studious demeanor. Brought in to back up WCCO attorney John Borger of Faegre & Benson, he played in perfect pitch with Anoka County Attorney Anthony Palumbo, who was defending detective Johnson. Their team strategy was to stay on point and low-key. Sullivan set about to slow-roast Terri Stokes with polite gentility, exposing her dubious credibility on the stand. Then Palumbo deemed the soft-spoken, clean-cut Johnson all but ready for knighting. Why would a smart veteran reporter not take this man's word? Sullivan asked. Johnson is an upstanding guy. Stokes is, at best, a shameless philanderer (whose reputation, he argued, was already soiled to the point of being permanently compromised).

In his close Sullivan parsed the complexities of defamation law--no digressions, no dramatics. Even if Gasparoli's 1994 story was found to be false, he informed the jury, even if it seemed probable that Stokes didn't kill her husband, there was no malice contained in either Johnson's remarks or the broadcast of them. Both the detective and the reporter were simply and legally going about their work, he emphasized. WCCO was not only fair and accurate but the station was exercising its First Amendment rights, a constitutional cornerstone.

"This was about us doing our jobs as journalists and bringing information to the public, to let them decide for themselves," WCCO's McDaniel explains. "The motivation behind this story was to report on the status of an investigation in progress and hope that the publicity would lead to some information coming forth from sources not previously known."

Friedberg calls that rationale a thin cover for willful deception: "Look, police officers are just like everyone else: They can be wrong, and the media can't be totally protected by accepting the word of a police officer."

Despite the courtroom fireworks, by the time the jury began its deliberations a month ago, the media, for all they had hanging in the balance, had tired of covering the Stokes case. When the jury came to a decision for the defendants last week, those who'd followed the trial were sorely disappointed by the lack of sophistication and understanding of the core issues demonstrated by both local dailies. (To be sure, watching a pack of journalists scramble to catch up on the basics after the jury was announced seemed both comical and ironic.) After the jury had been out for more than two weeks, the Pioneer Press did print a well-sourced piece concerning the unprecedented length of deliberations. On more than one occasion, the paper reported, jurors had told Judge Doty they couldn't reach a decision. Doty, facing the specter of a hung jury and not wanting to muck through another trial, kept sending them back for more discussion.

The morning the story ran, on Tuesday, August 17, Doty asked attorneys from both sides if they'd accept a majority rather than a unanimous verdict (which is permissible in a civil proceeding). Friedberg agreed. Sullivan and Palumbo, confident they'd swayed a majority of the jurors, also green-lighted the compromise. Four hours later the verdict came back.

According to Milan Mader, a Lakeville man who sat on the jury, what mattered most to media attorneys--and what Judge Doty believed to be the case's core question--had been worked out in the first few days of deliberation. "It was easy for us to conclude that WCCO was not being delinquent," Mader said outside the courthouse after the verdict. "Their report was fair. It gave both sides of the story. What really took a long time was getting inside of Tom Johnson's mind."  

Johnson's certainty that Terri Stokes shot her husband was the issue that had kept them out for weeks on end, nearly caused a mistrial, and turned out to be the only point of division. Two of the 12 jurors believed, with Johnson, that she had; the rest thought her innocent or, at least, that there wasn't enough evidence to reach a reasonable conclusion. "I don't know if they know it," one local attorney joked, "but whether or not the story was true didn't really matter. You have to feel for the poor bastards on that jury. They spent three weeks answering the wrong question." So what was the right question?

In short, malice: Were the incriminating remarks about Terri Stokes offered by Johnson and aired by the station done so with malice?

Ultimately the jurors said no--unanimously.

Still, Stokes's attorney considers his loss a victory of sorts. "This trial has to send a message," a beleaguered Friedberg said as he departed the courtroom. "Judge Doty's opinion on summary judgment has the force of law. And he gave us the opportunity to prove malice." That opportunity alone, backed by Doty's brutal estimation of the media, may well prove to be an open door--an invitation for plaintiffs' attorneys to weigh their odds in future defamation claims with the scales tipped a bit more in their favor.

"What WCCO was handed via this summary judgment motion was a five-week trial, prodigiously expensive, which undoubtedly caused a lot of folks much anxiety," Anfinson says. "Believe me, you don't want to go through that too often." The alternative? Doty's decision to send the case to a jury trial will likely embolden plaintiffs' lawyers to become more demanding when settlements are being discussed--and defendants, facing the prospect of a courtroom ordeal, more likely to agree to the terms.

As for the effect the suit and Doty's invective could have on the relationship between law enforcement and the media, Tom Johnson's nightmare will not soon be forgotten by police, who are routinely asked to comment on cases in progress. "The ultimate question cops always ask me when I make a request for an interview is, 'Why is it better for me to talk to the media?'" Penny Parrish, spokeswoman for the Minneapolis Police Department, says. "It's getting harder and harder for me to answer that question. Because they simply can't get in trouble it they don't talk, and they can get in trouble if they do."

During a post-verdict debriefing in the WCCO newsroom last week, McDaniel said that one local reporter who'd been working on a story for that day's newscast told her he was already getting the cold shoulder from an official in Anoka County. "People saw what Tom Johnson went through and what Anoka County went through," McDaniel added. "We do have a little trust-building to do in our day-to-day business."

As for former station attorney Paul Hannah, he hopes his colleagues and current media clients will keep in mind that when it was all said and done, WCCO just happened to get lucky. Next time, well, flip a coin. Another jury considering a different case with a more sympathetic plaintiff may well come down against the media: "I hope people don't think the Stokes verdict will give us carte blanche. As the trial went forward, as strong as the testimony was from the likes of Tom Gasparoli and Tom Johnson, my fear was that the jury wouldn't distinguish fact from emotion--that they wouldn't get it. But boy, you have to give them credit. That jury was working."

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