By Vanessa E. Curry

In writing Lies and Consequences: Covering the Trials of Kerry Max Cook, I mentally prepared myself for those who would disagree with what I wrote. I predicted the nitpicking by predisposed readers with inflexible viewpoints. What seems to be simple — a fact is a fact, and an opinion is an opinion — however is not as clear as it often should be.

I’ve chosen to share the following dispute to prove my point, and to help dispel any doubts about my desire to be fair.

In Chapter 63, titled “Cheap Shots” I wrote about the 2000 article “Justice Under Fire: ‘Win at all Costs’ Is Smith County’s Rule, Critics Claim” written by Evan Moore and published in the Houston Chronicle. https://www.chron.com/news/article/win-at-all-costs-is-smith-county-s-rule-1632942.php

Moore’s article, in my opinion, was unfair because the writer selectively used information to create a flimsy, one-sided view, and drawing shaky conclusions.” My written opinion is based upon my years of covering the Smith County legal system and proper journalism training.

To support that opinion, I included details of a libel lawsuit attorneys Jack Skeen, David Dobbs and Alicia Cashell filed against Moore, the Houston Chronicle and its parent company, Hearst Corporation.

The defendants in this case (Moore, Houston Chronicle and Hearst) asked the 43^rd District Court (Parker County, Texas) to dismiss the lawsuit (called a summary judgment) because, they contended, it failed to meet the required elements to prove defamation.

 

Defamation is defined as the action of damaging the good reputation of someone. Written defamation is called libel. Spoken defamation is called slander. In order for someone to claim defamation, in general, must show: 1. Publication 2. of a false statement 3. of fact 4. that injures the reputation of another person 5. is not privileged.

 

The 43^rd District Court denied the motion for summary judgment. Moore, the Houston Chronicle, and Hearst) appealed that decision to the Court of Appeals, Second District of Texas (making them now the plaintiffs). The Second District Court also denied the motion for a summary judgment, and the plaintiffs appealed that decision to the Texas Supreme Court.

The Texas Supreme Court overturned the lower courts’ rulings, granting Moore, the Houston Chronicle, and Hearst a summary judgement (effectively dismissing the case) because the judges ruled Skeen, Dobbs and Cashell did not show any evidence of malice on the parts of the reporter and newspaper. In fact, in an affidavit, Moore said he believed the article to be true and accurate based on his research. Actual malice is a key element of proving defamation involving public figures — Skeen was the elected district attorney for Smith County; Dobbs and Cashell were prosecutors working for Smith County.

The Supreme Court ruled “no fact issue was raised to whether the article was published with actual malice.”

To support my own opinion, I quoted from the decision ruled by the Second District Court of Appeal which denied a summary judgment. In consideration of the summary judgment motion, the court ruled:

 

      ”Therefore, the article as a whole raises genuine issues of material fact about whether the article is substantially true because it alleges a current rule, pattern, and policy of misconduct, and it casts more suspicion on Appellees’ actions than an accurate account would have warranted. “

“On this basis, we conclude issues of material fact exist about whether the article includes defamatory assertions of fact that are not constitutionally protected speech;  thus, the trial court did not err by denying summary judgment on this issue.”

 

The court also noted:

 

 “An expert testifying about the standard for adequately reporting information testified that this article fell far below that standard. The expert testified that the article was biased and failed to impartially give an accurate and balanced account of the information presented in the article.”

 

Although the defamation lawsuit was ultimately dismissed, that doesn’t negate some of these findings by the Second District.

 

I believe my stated opinion about Moore’s article is adequately supported. However, I did make one mistake in my book. I inaccurately attributed the above direct quotes to the Texas Supreme Court.

 

Once the mistake was pointed out to me, I corrected it in a subsequent printing of my book. I’m fortunate to have my book as “publish on demand.” This means I can print additional copies whether one or five thousand. Despite numerous levels of editing, I still discovered a few other minor mistakes — all of which have been rectified in the “updated” in subsequent printings of the book.

 

The quotes are accurate pertaining to the Second District Court of Appeals’ decision to uphold the lower court’s decision to deny a summary judgment. You can read it for yourself at https://caselaw.findlaw.com/court/tx-court-of-appeals/1334338.html

 

Moore, however, continues to claim I have made “egregious errors and outright misrepresentations of truth, notably misquoting and mischaracterizing court rulings.”

He contends the Second District Court did not “rule” on the merits of the lawsuit because there never was a trial. He characterizes that court’s findings as merely “accusations.”

 

I vehemently disagree. The Second District Court clearly determined there was merit in the defamation claim, and agreed a summary judgment was NOT appropriate. I didn’t say the court agreed or determined the material was libelous, only that the claim had merit.

 

I have provided this explanation and appropriate links for those readers who want to understand the dispute presented and judge for themselves.