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Don't Pick Out That Corvette Yet: Prosecutor Loses Libel Lawsuit Against Newspaper
What does it mean, in context, to say that a prosecutor "assisted with the prosecution" of someone who has been exonerated?
From Polk County Pub. Co. v. Coleman, decided Friday by the Texas Supreme Court, in an opinion by Justice Jimmy Blacklock:
In June 2020, a small newspaper in Polk County ran a story criticizing a local assistant district attorney named Tommy Coleman. Most of the article criticized the Williamson County District Attorney's office, where Coleman previously worked, for its involvement in the infamous wrongful conviction of Michael Morton.
Among the article's claims about Coleman was the statement that he "assisted with the prosecution of Michael Morton" while a prosecutor in Williamson County. The 1987 conviction of Michael Morton, which involved prosecutorial misconduct in the handling of evidence, happened long before Coleman started practicing law. Morton was exonerated in 2011 after spending nearly 25 years in prison.
Coleman sued for defamation, claiming that the article's statement that he "assisted with the prosecution of Michael Morton" was false and defamatory. At this stage of the proceedings, he does not challenge the accuracy of anything else in the article. The article described an episode in which Coleman, while a prosecutor for Williamson County, was heard in the courtroom during a post-conviction hearing mocking requests by Morton's attorneys for DNA testing of the piece of evidence that eventually exonerated Morton: "'Ewww! Bloody bandana! Bloody bandana,' Coleman is reported as saying in a demeaning tone during a hearing in September 2011." This regrettable episode, the veracity of which Coleman does not contest at this stage of the case, was the only factual detail the article offered to describe the way in which Coleman "assisted with the prosecution of Michael Morton."
The defendants now contend, among other arguments, that the challenged statement is not actionably false. As explained in more detail below, we do not determine the truth or falsity of the article's statement that Coleman "assisted with the prosecution of Michael Morton" by asking whether the statement is a legally precise characterization of the role Coleman played as an attorney in the sad saga of Michael Morton's prosecution and exoneration.
Instead, this Court's precedent requires that we judge the truth or falsity of an allegedly defamatory statement by identifying the "gist" of what the statement conveys about the plaintiff to a reasonable reader of the entire article. If the gist of the challenged statement, within the context of the article as a whole, is true, then the statement is considered substantially true and therefore not actionable—even if the statement errs in the details.
As explained below, we conclude that, in its context, the article's claim that Coleman "assisted with the prosecution of Michael Morton" was substantially true given Coleman's public involvement in his office's efforts to keep Morton behind bars by resisting DNA testing of the "bloody bandana." The statement is therefore not actionably defamatory, and Coleman's claims should be dismissed.
An excerpt from the court's legal analysis:
Coleman's principal complaint concerns the earlier phase of the Morton case. In his view, the article falsely communicates that he participated in the notoriously flawed initial prosecution and conviction of Morton in the 1980s.
We begin, therefore, by asking what a reasonable reader would understand the article, as a whole, to convey about Coleman's involvement in Morton's initial prosecution and conviction in the 1980s. The answer is nothing. For the following reasons, the gist of the article does not communicate to the reasonable reader that Coleman participated in the initial prosecution of Michael Morton in the 1980s.
The entirety of the article recounts the 25-year history of the Michael Morton "case." Absent from the article is any sense of the procedural distinction between the "prosecution" phase and the "post-conviction" phase of Michael Morton's decades-long "case." The article is written from a non-lawyer perspective that does not approach the story in terms of the distinction between these two procedural postures and, instead, simply sees one long, sad Michael Morton "case." This is an eminently reasonable perspective, although a legally imprecise one.2 Indeed, even lawyers keenly aware of the procedural distinctions might colloquially call the entire episode—from arrest, to conviction, to exoneration, to remuneration—"the Michael Morton case." In these colloquial terms—terms surely more familiar to the ordinary reader than criminal-procedure terminology—one side in the decades-long "case" is Morton, and the other side of the "case" is the Williamson County prosecutors, i.e., the "prosecution."
{Unlike the article, the correction published by the Enterprise acknowledges the procedural distinction between prosecution and post-conviction proceedings and therefore the technical inaccuracy of the article's use of the word "prosecution": "The proceedings that took place between 2005 and 2011 should not have been referred to as 'prosecution.' We regret the error." While the Enterprise's decision to publish the correction may amount to the paper's admission that its story "erred in the details," such a correction is not an admission that the article lacked substantial truth. }
When referencing the entire history of the Morton "case," many reasonable non-lawyers—and even some lawyers—might very well refer to the Williamson County DA's decades-long effort to put Morton in prison and keep him there as the "prosecution" of Michael Morton. Again, the author appears to have employed the legal terms "prosecution" and "case" in this imprecise but not unreasonable way.
Nothing in the article suggests to the reasonable reader that, in the article's re-telling of the case's entire history, a procedural distinction is contemplated between the 1980s "prosecution" and the 2010–11 post-conviction proceedings. Because the article gives no indication that it is speaking with this procedural distinction in mind, its statement that Coleman "assisted with the prosecution of Michael Morton" does not convey to the reasonable reader that Coleman assisted in any particular aspect of the 25-year effort by Williamson County prosecutors to obtain and maintain Morton's imprisonment.
The article thus treats the entire regrettable Morton episode as one "case," in which anyone who participated on the Williamson County side "assisted with the prosecution" of Michael Morton. The reasonable reader who is unfamiliar with the procedural distinctions would have no reason to assume from what the article says about Coleman that he was involved in the initial prosecutorial misconduct in the 1980s. The only detail of Coleman's "assistance" recounted in the article is his snide courtroom comment in 2011, a detail which gives the reader no reason to assume that Coleman also participated 25 years earlier in the long-past history of the case.
Of course, many reasonable readers are familiar with the relevant procedural distinctions. Such readers would pick up on, as do we, the non-lawyer author's conflation of the various procedural phases of the Morton saga. The only detail provided about Coleman's "assistance" is his mocking statement during the post-conviction proceedings 25 years later, and nothing in the article suggests he had any earlier involvement in the case—other than, perhaps, the disputed word "prosecution."
But even the reasonable reader who understands the procedural significance of that word would not necessarily assume that the author of this news article is using the word in a legally precise sense. In fact, anyone who appreciates lawyerly precision has probably read plenty of news stories about legal affairs that gloss over lawyerly distinctions or contain inadvertent mischaracterizations of legal or procedural concepts. These journalistic imprecisions are not to be applauded, and they certainly can mislead the average reader in some cases. But errors of law by those reporting on the law are not automatically actionable as defamation. If it were otherwise, the "freedom … of the press" would be hard-pressed indeed.
As always, the question is whether the gist of the article, as a whole, communicates defamatory falsehoods about the plaintiff to the reasonable reader. Here, a reader who is sensitive to the procedural distinctions with which Coleman is concerned would be the first to understand that the article itself is not concerned with those distinctions. In fact, the more procedurally sensitive reader would be the most likely to understand the lengthy procedural timeline—under which Coleman's courtroom comments came 25 years after Morton's conviction—and would therefore be very unlikely to assume from Coleman's involvement in 2011 that he was also involved in the 1980s….
Coleman nevertheless contends that, even if we restrict the timeframe to the 2010–11 post-conviction proceedings, the article's claim that he "assisted" with those proceedings is actionably false. He maintains that he never appeared as counsel, signed court filings, discussed case strategy, argued in court, or gave any public statements or interviews in Morton's post-conviction proceedings. He does not deny, at least at this stage, that he made light of the "bloody bandana" audibly in the courtroom in a mocking and demeaning way during those very post-conviction proceedings.
As with his argument about the word "prosecution," Coleman's argument about the 2010–11 post-conviction proceedings hinges on a rather technical understanding of what it means for a lawyer to "assist" in his office's courtroom efforts. Even if Coleman did not provide formal support as a lawyer for his office's efforts to keep Morton behind bars, he does not contest that he provided moral support in a public way in the courtroom. The unflattering and uncontested account of his courtroom statements provides the factual support for the gist of what the article claims about Coleman—that he "assisted," in a regrettable way, in the 2010–11 phase of the Michael Morton case as a Williamson County prosecutor….
Finally, even if we agreed with Coleman that the article conveys falsehoods about his involvement in Morton's post-conviction proceedings, we would still need to ask "whether the alleged defamatory statement was more damaging to [Coleman's] reputation, in the mind of the average [reader], than a truthful statement would have been." Assuming the challenged statement falsely characterizes Coleman's involvement in the post-conviction proceedings, a precisely true version … would be something like: "Coleman publicly supported his office's decades-long efforts to keep an innocent man behind bars by audibly mocking—in the courtroom—Michael Morton's requests for DNA testing of the very piece of evidence that would ultimately exonerate Morton after 25 years of wrongful imprisonment."
Nothing in the Enterprise article would be more damaging to Coleman's reputation, in the eyes of the average reader, than this undisputedly true account of Coleman's participation in Morton's post-conviction proceedings….
As to the Corvette,
Needless to say, the article did not please Coleman. He posted the article to his Facebook page with the statement, "I think someone just bought me a new Corvette today. I will be sure to put their names on the personalized plates."
The Texas Citizens Participation Act, which is Texas's anti-SLAPP statute, generally provides that prevailing defendants in these sorts of libel cases can recover attorney fees (though this decision didn't deal with that question). It may be that this Corvette will be driving in reverse.
Britton B. Harris, Brett J. Sileo, K. Susie Adams, Peter Steffensen, Thomas S. Leatherbury, and Ryan Withington Gertz, Beaumont represent the newspaper and the reporter.
