AUSTIN, Texas (CN) — A newspaper publisher and its former editor asked the Texas Supreme Court on Thursday to reject a prosecutor’s claims they had defamed him with their report he participated in the murder prosecution of a man exonerated after 24 years behind bars.
In February 1987, a Williamson County jury convicted Michael Morton of beating his wife to death and he was sentenced to life in prison.
Tommy Coleman was 17 at the time. He did not get his law license until 2002. Four years later, he got a job with the Williamson County District Attorney’s Office.
Yet the Polk County Enterprise published an article in June 2020 by its then-editor Valerie Reddell, which stated, “Prior to his arrival in Livingston, Tommy Lamar Coleman assisted with the prosecution of Michael Morton during his time in the Williamson County District Attorney’s Office.”
The Enterprise and Reddell ran the front-page story about Coleman’s work history because he had just been hired as an assistant district attorney by the Polk County DA’s office in Livingston, Texas, a town of 5,800 residents 90 miles northeast of Houston.
Reddell, citing a blog post, reported in the article that Coleman, during a hearing on Morton’s post-conviction habeas claims in the 2000s, had been overheard mocking Morton’s defense attorney’s request for DNA testing on a bloody bandana found at the murder scene, analysis of which proved Morton’s innocence and led to the arrest of the killer.
Coleman maintains he was merely watching the proceedings in the gallery when he said in derision of Morton’s counsel, “Ewwww! Bloody bandana! Bloody bandana!” He attested in an affidavit he did not officially appear as counsel or sign any pleadings in Morton’s case.
Coleman, through his attorney, sent the Enterprise a letter complaining the article contained false statements and demanded a retraction.
Shortly thereafter, the biweekly paper ran a correction stating it had “mischaracterized” Coleman’s involvement in the Morton case, that he was not involved in the initial trial and prosecution in 1987 and the habeas proceedings that took place from 2005 to 2011 “should not have been referred to as ‘prosecution.’”
Unsatisfied, Coleman sued Reddell and the paper’s owner Polk County Publishing Company in August 2020.
After the trial judge and a panel of the Texas Ninth Court of Appeals in Beaumont refused to dismiss the case, the Texas Supreme Court granted the defendants’ petition for review and heard arguments Thursday.
Thomas Leatherbury, representing Reddell and the publisher, told the all-Republican high court that the Texas Citizens’ Participation Act — an anti-SLAPP statute meant to protect those who exercise free speech rights from lawsuits to silence them — applies to the case and said Coleman had not met his burden of giving clear and specific evidence of falsity.
Leatherbury, a sole practitioner in Dallas, said readers can make up their own minds as to whether it’s accurate to say Coleman assisted with the Morton prosecution.
“Can we look to the newspaper’s correction to help decide what is the ordinary reader’s perception of the term?” Justice Jeff Boyd asked.
Insisting the correction should not be evidence of falsity, Leatherbury said he also believes it’s bad public policy for courts to put so much weight in a correction because it will discourage media outlets from issuing them.
He also pointed to an amicus brief filed by the Texas Press Association and Texas Association of Broadcasters in which the nonprofits said the state’s Defamation Mitigation Act, passed in 2013, bars the use of corrections as evidence in support of plaintiffs’ defamation claims.
Coleman’s counsel, Tanner Franklin, managing owner of Franklin Law Firm in Eloite, Texas, acknowledged that Coleman had not been fired by the Polk County DA’s office over the article. He said Coleman now works for the Jefferson County DA’s Office in Beaumont.
But he argued the fact that Coleman’s boss at the time, then-Polk County DA Lee Hon, wrote an op-ed defending Coleman against the Enterprise’s piece shows it damaged his reputation.
“To say that a prosecutor assisted in the Michael Morton case, in the prosecution of that case is a scarlet letter. This court well knows that case and what it did to Texas law,” Franklin stated, referencing a bill named for Morton and signed in 2013 that requires prosecutors to share evidence with defendants and keep a record of what they have disclosed.
Justice Jane Bland asked Franklin if he thinks “prosecution” in the way that Reddell used it could mean participation in post-conviction proceedings.
Franklin said, “I think an ordinary member of the public, when you say prosecute a case, when you’re talking about a lawyer prosecuting a case, they’re thinking the jury’s in the box, there’s a lawyer prosecuting the defendant. That’s what the lay public would think.”
Justice Boyd told Franklin the case is odd to him because Polk County Publishing Company ran a correction. “It just seems like I’m not sure what the relief is here,” he said.
“Your honor, I think the relief is allowing a jury in Polk County to decide this case,” Franklin replied.
“And do what?” Boyd said. “So they agree with him, so they’re going to award him $1?”
Franklin noted that Reddell did not write the correction. He implied any defamation mitigation defense that accrued to the newspaper publisher for acknowledging its error would be absent for Reddell.
The parties also debated whether Coleman was a limited-purpose public figure in the context of the article.
If a plaintiff suing a media company is found to fit that description, they must prove the outlet published the challenged statement with actual malice — knowledge that it was false or with reckless disregard of whether it was false or not.
Addressing the Texas Supreme Court justices’ skepticism of Coleman’s claims, Franklin said the case is about defending his client’s honor and reputation in the community.
At least one jurist was unconvinced. “Doesn’t the fact that he got a new job kind of prove that it didn’t affect his reputation?” Justice Debra Lehrmann said.
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