The firearms analyst is accused of being overly sensitive. The reporter is accused of being deceitful. What started as an investigative article four years ago has morphed into an expansive libel lawsuit that reached the North Carolina Court of Appeals. Yesterday, three judges heard oral arguments in Desmond v. The News and Observer Publishing Company, et al.
In 2012 Beth Desmond, a firearms analyst for the State Bureau of Investigation, sued the N&O, its editor and several employees; and the publication's parent company, McClatchy Newspapers.
Desmond, a ballistics expert, took issue with a front-page article questioning her competency and honesty. Titled "SBI relies on bullet analysis that critics deride as unreliable," the article, written by reporters Mandy Locke and Joseph Neff, was part of a four-part investigative series titled "Agents' Secrets," which revealed SBI shortcomings. The series won the $25,000 Michael Kelly Award, a national honor that recognizes journalism exemplifying "the fearless pursuit and expression of truth."
Standing by the story's accuracy, the N&O fought to have the suit dismissed on First Amendment grounds. However, this past March a Wake County judge allowed the suit to proceed, though he limited it to three defendants: The N&O, McClatchy and Locke, who did the bulk of reporting and writing. The N&O appealed the judge's ruling.
Desmond says the N&O acted with malice and reckless disregard for the truth, which she needs to prove in order to win a libel lawsuit. Her lawyer, James Johnson, argued yesterday that Locke's article was filled with misquotes, false statements attributed to sources, misrepresentations and distortions. Crucially, he said, Locke reported expert testimony she knew to be false as true.
"My client is an avid fan of the First Amendment," said Johnson. "But a line has been drawn and they've crossed it."
Desmond, who attended yesterday's hearing, seeks a retraction, apology, attorney's fees and monetary or other relief the court deems appropriate.
Locke was also in the courthouse yesterday, sitting next to John Drescher, the executive editor for the N&O. Locke's lawyer Hugh Stevens focused his argument on the high bar needed to prove actual malice, requiring Desmond not only to show that Locke published inaccuracies, but that she did so willfully.
"When we are talking about what the government does with our money and in our name," he said, "speech protected by the First Amendment is essential to our whole democratic system."
The case exposes the fallout that can emanate from a libel lawsuit—even one that is ultimately settled. Desmond won a motion to compel the N&O to hand over a bevy of email messages that Locke exchanged with colleagues and sources. Some of the email messages contain casual language clearly not intended for outside consumption. (A colleague, for example, said in an email to Locke, "I want you to compel our readers to gather pitchforks and torches.") The suit has also exposed the identity of one of Locke's confidential sources, an ex-FBI firearms analyst from Virginia.
Locke's article centered on a 2006 criminal case in Pitt County. The previous year, a 10-year-old boy from the small town of Ayden was fatally struck by a bullet during a street fight. A man named Jemaul Green, who was charged with murder, claimed that he shot a bullet into the air in response to a nearby gunman who shot first. Two usable bullet fragments were recovered from the scene. Desmond analyzed the bullets' impressions, which are made as the projectiles travel through the barrel. During the trial, she testified that the bullets came from the same make and model of gun.
"I am with absolute certainty saying it's a 9 millimeter High Point firearm," Desmond testified outside the presence of the jury. When the jury returned, she confirmed that the two markings were consistent with the same type of gun. Green was convicted for second-degree murder and sentenced to 23 years in prison.
After the trial, a lawyer involved in the case, who later became Locke's source, asked a former FBI analyst to take a close-up photograph of the two bullets in question, end-to-end. In that photo, it appeared the impressions were inconsistent with each other.
Locke began to investigate; she contends she spent hundreds of hours studying scientific reports and articles on firearm and toolmark analysis, reviewed court records of cases involving firearm and toolmark evidence and testimony, and interviewed critical scientists and lawyers, as well as SBI personnel, including Desmond. She also attended a lecture by a former FBI metallurgist and read a report by the National Academies concluding that the basic premises of firearm toolmark identification weren't scientifically established.
When Locke approached Desmond about the photo of the bullets, Desmond, who took no photographs of her own, defended her conclusions. (An independent investigation has since validated Desmond's report, according to the SBI, though Locke's lawyers partially dispute this.)
After the N&O published Locke's article, Desmond cited 22 instances in Locke's article that she deemed libelous. Among them:
• "Independent firearms experts who have studied the photographs questioned whether Desmond knows anything about the discipline."
• "Worse, some suspect she falsified evidence to offer prosecutors the answers they wanted."
• " 'It raises the question of whether she did an analysis at all.' "
• " 'This is as bad as it can be.' "
• " 'This is a big red flag for the whole unit.' "
(The last three items refer to direct quotes from a source in the story.)
In a chart attached to its brief, the N&O labeled each of Desmond's 22 complaints as either not defamatory, factually accurate, not concerning Desmond, opinion, fair reporting or a combination thereof.
After the article's publication, Desmond's lawyer communicated with three of the four ballistics analysts whom Locke used as expert sources, two of whom spoke on the record. Those two sources now say that Locke either misquoted them or took their statements out of context, according to an affidavit and deposition transcripts. As of now, none of the three sources question Desmond's competency, or claim that she falsified evidence; each also told Locke that they would need to study the bullets themselves—beyond their depiction in the photo—to reach a firm conclusion, according to the affidavit and transcripts.
Desmond's brief contains more than 1,200 pages of appendices including depositions and lengthy email chains, In it, her lawyers spend considerable space dissecting Locke's emails to sources, suggesting that she stretched the truth in order to receive desirable answers. They also claim that Locke knew one of her sources wasn't a toolmark expert, but presented him as such.
Distraught over the article, Desmond has since transferred from the SBI's firearms section to its criminal information and identification section, she explained in a 24-page affidavit. She filed the complaint in part because the article seemed to imply that her purportedly dubious report was the reason Green was convicted, she wrote.
Locke, however, says she fact-checked the article line-by-line before it was published, a process that took a day. The North Carolina Press Association and North Carolina Association of Broadcasters have submitted a friend-of-the-court brief in support of Locke and the N&O. During yesterday's hearing Stevens, her lawyer, noted that the "waffling" of sources after an article is published "is a very common occurrence."
Locke and Desmond both declined to speak the INDY. Drescher, the N&O's editor, is proud of Locke's work. "Mandy is a very good reporter," he said after yesterday's hearing. "She was extremely diligent on this series." He added: "I think North Carolina is better because we published this series."
The actual malice standard traces back to freedom-of-the-press case law established 50 years ago, designed to encourage free and vigorous debate—particularly about the government. It's difficult to tell how the Court of Appeals will rule on the N&O case, though media law experts note that the standard is very difficult to meet.
"Taking a quote out of context—that alone doesn't get a plaintiff very far," said George Freeman, executive director of the Media Law Resource Center, a New York nonprofit organization. Desmond, he suggested, has a tough battle. "Our policy is to welcome debate on what public officials do and give breathing space to errors," he said. However, he added, "that doesn't mean giving breathing space to lies." Some appellate judges, he said, allow libel cases to go forward.
Since publishing her SBI article, Locke has continued reporting for the N&O, writing investigative articles and winning more awards. But in order to win her case, Stevens argued yesterday, she doesn't even have to prove she is a good reporter.
"If Ms. Locke is the sloppiest and most negligent reporter nationally, that's not enough," he said. The case boils down to one question, he said: "What was in Mandy Locke's mind when she wrote the story? Under any evidentiary standard that's an extraordinary thing to judge."
This article appeared in print with the headline, "Lawyers argue SBI analyst libel suit against N&O ."