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Libel charges brought by Philadelphia Common Pleas Judge Kathryn S. Lewis against Philadelphia Newspapers, The Philadelphia Daily News and one of its columnists, Dan Geringer, were tossed aside in a summary judgment granted by Bucks County, Pa., Senior Judge Issac Garb, who presided over the case because of Lewis’ involvement. In an opinion dated Sept. 13, Garb said that Lewis was not entitled to recover damages because the three columns that Geringer wrote for the Daily News concerning the judge’s handling of a robbery defendant’s release from prison were not false (in which case malice is irrelevant). He also said that the plaintiff failed to prove actual malice and that the articles in question were columns or statements of Geringer’s opinion under circumstances whereby it does not constitute a libelous statement. Richard Sprague and Geoffrey Johnson of Philadelphia-based Sprague & Sprague represented Lewis, while partner Amy Ginensky and associate Michael Baughman of Dechert in Philadelphia represented the defendants. The defense sought and were granted summary judgment. Geringer’s three columns emanated from a 1998 case in which defendant Carlton Bryant was charged with numerous robberies — three of which were consolidated for trial. In December 1997, Bryant pleaded guilty to those consolidated cases only to withdraw his pleas six months later. The case was transferred to Lewis on July 2, 1998, and she presided over a pretrial hearing two weeks later at which she set a date to hear motions on Oct. 23 and set the trial date for Oct. 26. The defense, however, requested a continuance for additional discovery on Oct. 23, Garb wrote. On Dec. 2, 1998, Bryant filed a petition for discharge or release from custody pursuant to the then Rule of Criminal Procedure 1100 (d)(1) on the consolidated cases. He also filed petitions for discharge and release from prison on another case. Bryant’s argument for release was that the 120-day prompt trial rule had expired between June 18 (when a hearing was held at which Bryant’s attorney told the court he had numerous motions) and Oct. 23. Prosecutors argued that that time was excludable because of the withdrawal of the guilty plea, Garb stated. After the hearing, Lewis ordered Bryant to be released but with an electronic monitor fastened to his ankle. Upon his release, though, Bryant removed the bracelet, disappeared and did not appear for trial two months later. He was later apprehended but not before he allegedly committed another armed robbery at one of the places where he was previously charged with the same crime. Geringer’s trio of articles took the judge to task for releasing Bryant. While Garb was clearly not a fan of the articles, he said that they merely were an expression of the author’s opinion and did not rise to the standard of libel. “We neither condone, applaud or admire the manner in which the defendants expressed their displeasure with the plaintiff’s handling of these case,” Garb wrote. “The articles are tasteless, nasty and mean-spirited. “However, judges are often and must get used to being criticized for the manner in which they adjudicate some cases. Obviously, in practically every case someone loses and invariably some of those losers feel that they have been abused. Public criticism of public officials is an inherent part of our democratic system of justice. Courtrooms are public places and the proceedings conducted therein are matters of public interest. Newspapers have a license to inform the public respecting public matters, but one would hope that it be done in a civilized and tasteful manner. In this case it was not. Notwithstanding, we have concluded and hold that these publications are not libelous.” Sprague and Johnson brought up five passages from Geringer’s work that they believe rose to support their contention of the falsity of the publication, Garb stated. In one article, according to Garb’s opinion, Geringer said that Bryant “wasn’t tried because he failed to show up in court. He failed to show up in court because Common Pleas Judge Kathryn Streader Lewis released him from jail a few weeks before his trial. Not by mistake. On purpose.” Garb said that statement was true. In another passage, Garb stated, Geringer asks “Why was a defendant who pleaded guilty to seven gun point robberies, changed his mind six months later, withdrew his guilty plea and was in jail awaiting trial, released and given the golden opportunity to disappear? Because hug-a-thug judge(s) like Lewis have made Common Pleas Court (a place) where good police work goes to die. In fact, he was released in spite of having entered the guilty plea to seven gun point robberies and then changed his mind six months later and withdrew his guilty plea and was in jail awaiting trial.” Again, while Garb said he thought the epithet to that passage was distasteful and crude, the facts still show that Bryant was released at the order of Lewis. Geringer also wrote that “what’s unclear is why Lewis ignored the rule and freed a man charged with seven gun point robberies. The Commonwealth now has 365 days to try Bryant, beginning on the day they catch him. That is if they catch him. And if the next judge he gets is more interested in bringing him to ‘prompt trial’ than in relying on [an] electronic bracelet to do her job.” Garb said that quote merely restates various facts in the case that are all true. Another example cited by Lewis’ lawyers, according to Garb, comes from a caption of a picture box, wherein pictures of Bryant and Lewis are juxtaposed side-by-side with the text asking why Lewis ignored the trial rule in freeing Bryant. Once again, Garb said that he thinks the side-by-side pictures were “distasteful and unnecessary.” “However, the assertion that the plaintiff ignored the trial rule is not demonstrably false in view of the ambiguity regarding the proper construction of the rule itself and the matter of which days are to be excluded under Rule 1100(c),” Garb wrote. In another quote, Geringer said that after months of legal wrangling, “the Bryant case was about to go to trial when Judge Lewis granted a defense motion to release Bryant from jail because the 120 day ‘prompt trial’ rule had been exceeded — by eight days.” That statement, Garb said, was also true. “The actual malice standard is not objective, that is whether a reasonably prudent person would have published the challenged article, but rather is subjective,” Garb wrote. “Actual malice requires at a minimum, that the statements were false and made with a reckless disregard for the truth: that [the] defendant must have made the false publication with a high degree of awareness and probable falsity or must have entertained serious doubts as to the truth of the publication. Failure without more to investigate will not support a finding of actual malice, nor will ill will or a desire to increase profits.” Johnson, though, said Garb ignored the main thrust of the plaintiff’s argument to Garb, which was that Geringer stated in his first article that “prosecutors pointed out that Lewis’ calculations included these two weeks that Judge [Patricia] McInerney [the previous judge before it was transferred to Lewis] granted the defense to prepare a case after Bryant withdrew his guilty plea.” Johnson said what was significant about that quote is that he believes it is the central false statement in Geringer’s first article and the factual premise for everything the columnist wrote about the case after that point. Johnson said that the prosecution never agreed that the two weeks should be excluded and it was the prosecution that asked McInerney for the continuance so it’s not excludable anyway. “By saying that the judge ignored what prosecutors said, [Geringer] basically said that she ignored her obligations as a judge, she put a dangerous man out on the street, she’s stupid and she’s incompetent,” Johnson said. “The truth is that she had to release him by law [because the 120 days had expired]. And everything else he writes after that hangs on that falsehood.” The plaintiff is mulling over options concerning an appeal, Johnson said. Ginensky said she argued that Geringer’s columns were not defamatory or false, that there was no proof of actual malice and his opinions are protected under the First Amendment of the U.S. Constitution.

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