High Stakes, Low Profile
On July 16, 1995, The New York Times Sunday Magazine ran a photo of District Attorney Lynne Abraham on the cover with the headline "The Deadliest D.A." Inside was a long, personal profile of Abraham, in which she was cast as a pro-death-penalty icon. The story also examined execution politics in Philadelphia. Written the same year as a Times profile of Ed Rendell as "America's Mayor," Abraham would later joke that it was the probably first time two Philadephia city officials made the cover who weren't under indictment.The story, written by Pulitzer Prize-winning author Tina Rosenberg, names former Philadelphia murder prosecutor Barbara Christie as an attorney courts found to have withheld evidence from the defense and struck blacks from juries. Christie is now suing for libel in a fight that pits the Times, with its record of never settling a case, against Christie and her attorney, Richard Sprague, one of America's best-known libel attorneys. It matches allegations of dirty play in the Philadelphia D.A.'s office against charges of careless reporting by the nation's newspaper of record.It's a case with ramifications far beyond Christie's reputation. Politically, it could become the biggest embarassment of the campaign season. The trial, originally scheduled to begin last week, has been postponed until November 17. In the meantime, both District Attorney Lynne Abraham and Jack McMahon, her Republican opponent, may be forced to testify about what, if anything, they knew about shady prosecution practices. With elections approaching this fall, their depositions could provide both with plenty of ammo for a campaign that has already traded shots on questions of racism and ethics.A Curious SilenceHow it all began and where it's all heading is an intriguing tale -- but one, curiously, that has never been explored by either the Inquirer or the Daily News, and may never be -- particularly if the case is quietly settled out of court, which is still a possibility.While most libel suits are killed in the pre-trial stage for lack of merit, Christie's has so far survived two Times motions to dismiss, 20 settlement attempts and a battle by Abraham to shelter certain D.A. files, a fight that ended with a contempt of court threat. Odd revelations have surfaced: The first judge mentioned he'd recently had an article rejected by the Times, and one of reporter Rosenberg's sources on Christie turned out to be none other than Christie's own attorney, Richard Sprague.With so much going on and so much at stake, why hasn't the Inquirer written a word about the case, other than a short notice when the suit was filed in 1995? One factor may be the fact that Christie's attorney is Richard Sprague. Last year, Sprague won his own 23-year libel suit against the Inquirer with a record $24-million libel judgment. Nowadays, says an Inquirer staffer who asked not to be identified, "you proceed with extreme caution where Sprague is involved, and that's putting it extremely mildly." Even in its one brief story on the Christie case, the paper managed to quote from Sprague's brief without ever mentioning his name.Inquirer editor Bob Rosenthal denies any intimidation, claiming that coverage is dictated by content, not by name. As for the Christie case, he wasn't familiar with it, but said the Inquirer generally doesn't cover the media, and usually reports on libel suits only when there's a verdict.But given the developments in the case, the number of marquee names involved and the potential impact, that's kind of a hard sell. "Ten years ago, we would have been on that story in a shot, even if just for the fun of it," says the anonymous Inquirer staffer, referring to the lure of local personalities and the opportunity to scrutinize the high and mighty Times. "It's the kind of story [Steve] Lopez would have been all over. I don't know why we haven't touched it."The Pitch LetterIt all began when Rosenberg, an investigative reporter with a specialty in human rights issues, began hearing stories about the District Attorney's office in Philadelphia.Philadelphia convicts were being packed off to death row in record numbers, and defense attorneys and death penalty opponents told her the reason was because the district attorney was an execution zealot whose assistants played fast and loose with the laws. In her proposal to the Times Sunday Magazine, Rosenberg sketched out the unverified information she'd gotten from local sources:"While she is beloved by the public, Abraham is a controversial figure in the legal community. 'The main reason for the frequency of capital punishment is the ethic of the prosecutor's office,' said a Philadelphia public defender [the name omitted in case briefs]. 'Lynne Abraham is the worst possible person for the job. Her office is constantly withholding evidence in the discovery process. Prosecutorial misconduct is routine. Some would call it malice.'"Times legal editor Doreen Weisenhaus, herself a former prosecutor, liked the story idea. Abraham was a weird anomaly -- a Democrat, a woman, a joke-cracking cat-lover who'd emerged as maybe the No. 1 death-penalty practitioner in the country. With New York on the verge of reinstating capital punishment, Weisenhaus reasoned, Philadelphia seemed an excellent laboratory to examine the peculiarities of how ultimate power is handled.When the story appeared three months later, it sparked two principal reactions from the District Attorney's office: a congratulatory letter from Abraham, and a million-dollar libel suit from one of her top deputies, former homicide chief Barbara Christie.The Big StoryAccording to Carl Solano, one of Rosenberg's attorneys, it's the first time the reporter has been sued in a career that includes a National Book Award, a Pulitzer and a MacArthur "genius" grant.She's the author of the critically acclaimed study Children of Cain: Violence and the Violent in Latin America, based on her half-decade spent interviewing guerillas in Peru and death-squad supporters in El Salvador. After the fall of Communism, she traveled Eastern Europe to chronicle the aftermath of decades of oppression for The Haunted Land: Facing Europe's Ghosts After Communism.After moving back to the States, Rosenberg served as a senior fellow at the World Policy Institute and an adjunct professor of journalism at Columbia University before taking her current position on the Times editorial board.Once she got the green light to write the profile of Abraham, Rosenberg came to Philadelphia and began digging into the local legal world. Public defenders told her about poor funding for death-row defenses and what they considered the D.A.'s unnecessary toughness, like insisting on the death penalty in every case she could. By going after the death penalty so often, they felt, Abraham was taking advantage of a system that was only meant for the worst offenders.As for getting the other side of the story, Rosenberg later explained in her deposition that she had to follow ground rules set by the D.A.'s office: she could only interview prosecutors on a list prepared by first assistant Arnie Gordon, and could only ask them about the single death-penalty case she was chronicling. Christie was not on the list of prosecutors.Abraham, however, made herself unusually available. Rosenberg describes riding around Philadelphia with her, hanging out in the office, having coffee in Reading Terminal. One surprise was how well the reporter, who'd made her reputation exposing brutality, got along with Abraham, the woman she'd heard was "the worst possible person for the job.""They really took to each other, like friends," D.A. spokesman Bill Davol mentioned in conversation a few months ago. Rosenberg gained almost unprecedented access to the very private District Attorney, learning, during a series of long, informal talks, about Abraham's marriage, her childhood, her ambitions, and her views on crime and ethics.The daughter of a small-time bookie and a bar owner, the 56-year-old Abraham became top prosecutor in 1991 after serving as a city administrator under Frank Rizzo and as a Common Pleas Court judge specializing in homicide cases. Her fellow judges appointed her to complete D.A. Ron Castille's term after he quit to run for Mayor, and in 1993 she was re-elected in a landslide.In Rosenberg's profile, Abraham emerged as something of a likeable Master Sergeant -- smart but old-fashioned, cheery but defensive. She gave speeches in "jeans, T-shirt, and a windbreaker with hair that badly needs a comb," and favored salty humor. Though she reminisced about summers when you could sleep in safety on your West Philadelphia porch and about carrying cans of Little Friskies in her car for stray cats, she had this reaction the day after Keith Zettlemoyer became the first person in 33 years to die in Pennsylvania's death chamber: "It was a non-event for me ... I don't feel anything."She shrugged off the case of a death-row convict who was later found to be the victim of a police frame-up as proof that capital punishment was in sound shape: "He wasn't executed," she said. "The system worked."As for justice under Philadelphia D.A.s, Rosenberg described their reputation for mercilessness. She quoted an attorney who could only recall a single case when a Philadelphia prosecutor asked for anything less than the maximum penalty, and that for a defendant who was mentally unbalanced. The more aggressive you are, Rosenberg said, the better your chances of cashing in later when you run for office. Look at the rise of Arlen Specter and Ed Rendell, she pointed out.But it's not all good, clean competition, Rosenberg was told. Philly prosecutors have a history of pushing the limits, she wrote, and sometimes, of pushing too far. As a figurehead for that misconduct, she selected Barbara Christie. In the entire 8,000-word article, it was the only time Christie's name was mentioned, but it was a powerful passage, one that cited court decisions as having found her guilty of misconduct:"Toughness often crosses the line into misconduct. Barbara Christie, who was chief of homicide before Dave Webb, frequently had her convictions reversed by higher courts for hiding evidence that indicated a defendant's innocence, and for knocking blacks off juries. Abraham demoted Christie, who had become a magnet for criticism. In 1992, Vincent Cirillo, a Superior Court judge, wrote in reversing a Philadelphia homicide conviction: 'We are especially concerned that prosecutorial misconduct seems to arise in Philadelphia County more so than in any other county in this Commonwealth.' He admonished prosecutors to 'understand that the Commonwealth's client is justice.'"Those five sentences are the heart of Christie's libel case. Did Abraham demote her? Was she unfairly smeared by that quote from Cirillo, which actually referred to two other prosecutors? And most importantly, were her cases tainted by dirty tricks and frequently reversed?The Times will have to prove either that the paragraph is true, or that Christie's career is so littered with improprieties that a conscientious reporter could reasonably mistake it as true. To do so, they've dug back into Christie's entire career and laid out every major misconduct charge she's faced.The Lawyer at the Heart of the MatterBarbara Christie is now 49 years old, a political-science major from Chatham College in Pittsburgh who graduated from Villanova Law School. She was dubbed "Chuckles" for her no-nonsense demeanor when she became a rookie Philadelphia prosecutor in 1972. She advanced to the elite homicide unit by 1975, and by 1987 she was its chief.Back in the days when few women were heading trial teams, she became something of a media darling. (In a 1988 profile, Philadelphia magazine called her "a barbed-wire beauty.) And she was a big hit with members of her homicide unit. According to Rosenberg's notes, some of Christie's former subordinates called her "a great chief," "a great, great prosecutor" and "pound for pound the best lawyer in the D.A.'s office." In 16 years Christie handled over 200 murder cases and was estimated to have won an impressive 90 precent of the verdicts. All the big cases came her way -- mobsters, cop killers, torturers -- and Christie kept putting them away.But defense attorneys, and even some judges, began complaining that Christie was going way out of bounds in the courtroom. According to newspaper articles and court records quoted in the Times defense, judges admonished Christie as "disdainful," "insolent" and "hostile." One judge complained that she ignored his rulings and "stripped the court of its dignity and control."Fellow prosecutors, on the other hand, defended her as a true believer who played the game to the limit, but not beyond."Any good trial lawyer who walks into a courtroom is going to try and take charge," says a former Christie colleague who remains convinced of her honesty and fairness. "Anyone who tries as many hard cases as Barbara did is going to have people accuse her of misconduct. It's a common claim, commonly rejected by the appellate courts."Supreme Court Justice Ronald Castille, the former D.A. who made Christie homicide chief, told the Inquirer in 1992, "She will fight tooth and nail, night and day for what she thinks is right. She was probably one of the most thorough lawyers we had in the office." But, he warned, "sometimes that aggressiveness causes her to be reversed.""Prosecutorial misconduct" is a broad category that encompasses, essentially, any foul play by prosecutors. It can be a mild violation, like mouthing off to a judge, or moderate, like slipping something into your closing statement you suspect is not true. It can also be something as severe as tampering with evidence and hiding exculpatory proof. The reason why there's a separate category for prosecutors, as opposed to having "defender's misconduct" as well, is because prosecutors are the ones who put people behind bars. Penalties range from receiving a reprimand to seeing your conviction overturned and the accused go free.The issue of race in jury selection has come up for Christie at least twice in high-profile cases. In 1991, Charles Diggs' conviction for stabbing a Mt. Airy woman to death was thrown out after a federal court found Christie had improperly blocked blacks from serving on juries in all three of Diggs' trials. Four years later a federal court ruled that Christie had unfairly rejected black jurors in a trial for accused murderer Edward Sistrunk. Neither man, however, has gone free; Diggs was re-tried and convicted, and Sistrunk's case has been challenged by the district attorney.She's also been accused of burying evidence at least twice. In 1992 the trial court found she'd withheld evidence that might have cleared Wilfredo Santiago in the 1985 murder of Police Officer Thomas Trench. The Superior Court later ruled that the information wouldn't have affected the verdict. That same year reputed mobsters Albert Daidone and Raymond Martorano accused Christie of hiding fingerprint evidence in their trial for the murder of union leader John McCullough. The Superior Court ruled the print was inconclusive, but reversed the convictions anyway, on grounds that Christie had persisted in trying to imply it fingered the defendants. The Court later blistered her for trying "to win a conviction through any means possible -- if she had no evidence she would use innuendo and when that failed she would use outright lies."The Story's BackdropAs the decisions turned against her, so did the press.One Daily News cover on the Martorano case featured a photo of Christie with the banner headline, "You Blew It." [cq] Each time one of her convictions came up on appeal, stories in the newspaper appeared with quotes from defense attorneys questioning her conduct and scruples.Even Sprague, Christie's mentor during her years as a young prosecutor, had an opinion about the press she was receiving. Ironically, this opinion was found in Rosenberg's notes. According to the reporter's deposition, Sprague told her he was "not sure how much [was] a bad rap. Once the picture is created feeds on itself -- [and it] harmed homicide unit to some extent."Once Abraham took over the D.A.'s office in '91, she transferred Christie from head of Homicide to head of Special Investigations. Abraham called the move "an office re-organization" that would take advantage of Christie's "extraordinary talents in investigations." Insiders saw it as a muzzle and a demotion. Murder trials keep you in the public eye, explaining your headline cases to the TV lights, while Special Investigations, which deals with police corruption, is by definition secret and invisible. It's the homicide gang, like Sprague and Rendell, who go on to greater fame, not special investigators.Later Christie was shifted again, this time to chief of the Charging Unit, "the Gulag," as one former prosecutor told Rosenberg. Charging is pretty much Law 101, the process of deciding what crimes an arrestee will be charged with. Traditionally the charging itself is handled by entry-level prosecutors. If you're an experienced prosecutor and you land in Charging, even as its head, it's safe to assume you're no longer riding the success express. Last year, after 24 years as an assistant D.A., Christie quit to become chief counsel for the state police department. Calls to her Harrisburg office were not returned.Christie vs. The New York TimesChristie knew that suing The New York Times meant opening herself up to the legal process of discovery. Her career would be studied, and every case she handled would be searched for proof that Rosenberg's statement was true. Every charge of misconduct would be held up for inspection, everything in her personnel file would be potential fodder for the defense.Proving libel is extremely tough for public officials. Because the press needs to go out on a limb once in a while to critique the behavior of people in power, it gets more protection from libel law -- "breathing space," as one federal court expressed it. To win a libel case, a public official has to prove two things: 1) the statement was false, and 2) the reporter knew (or at least strongly suspected) it was false, but went ahead and printed it anyway. If it was an innocent mistake, there's no case. The key is in demonstrating that there was plenty of information available to avoid the mistake, but the reporter, perhaps deliberately, failed to use it.It's a matter of proving what was in the writer's mind, and that's what make libel law such tricky terrain. Because there's rarely any complete record of events, like a video recording, no one ever really knows exactly what happened. The attorneys, therefore, have to piece together a plausible scenario from odds and ends of evidence, creating a drama of what could have happened, based on events.The attorneys also have a certain poetic license when it comes to describing the people and situations involved. Reporters with otherwise blameless reputations are called liars and sneaks and incompetents, and the subjects of their stories often listen to even worse things said about them than ever appeared in print. Statements that would be libelous in any newspaper are simply adversarial in the courtroom."The idea is to give people the freedom to speak their minds without fear of retribution," says Sam Klein, who is the libel attorney for Philadelphia Weekly. "It's a protected privilege in the courtroom to get everything out in the open." Already in the Christie case, the litigants have said far nastier things about each other than anything published in the Times story. Christie's lawyers have depicted Rosenberg as "malicious" and her work as shoddy. They've alleged that she and the Times will "make any accusation, twist and distort any judicial opinion in order to further besmirch [the] plaintiff."The defense, in turn, says that if Rosenberg is guilty of any mistake, it's of going too easy on Christie. She's guilty of far more misconduct than Rosenberg cited, one defense motion declares. Attorneys for the Times assembled a Greatest Hits of Christie Reprimands, compiling 18 decisions from 12 cases that sharply criticize Christie and the D.A.'s office. There are whole pages of sound bites from judges accusing Christie of being mouthy and insubordinate. Few of those judgments, however, actually touch on the specific charge that she was frequently overturned for striking blacks from juries and hiding evidence."These cases tend to be harder fought than most civil suits, with fewer settlements," says Sandra Baron, head of the Libel Defense Resource Center. The majority of the cases are losers, and success usually comes only at the end of a long, arduous court battle -- and no one knows that better than Sprague, Christie's lawyer, who spent 23 years pursuing a defamation claim of his own against the Inquirer.Enter Dick SpragueOn April 1, 1973, the Inquirer published a front-page story questioning whether Sprague, as a prosecutor, had buried the investigation of a friend's son who was on the scene when a gay man was killed. The paper soon found itself locked into what would become one of the longest and costliest libel suits of all time.Rocco Urella Jr., son of the then-State Police Commissioner, was out with his LaSalle College classmate on March 3, 1963, when they ended up back at the apartment of two older men. One of the men made a homosexual advance, Urella's roommate later said, so he belted him and the two students took off. The 48-year-old man fell to the floor and died. Urella was not arrested, and charges were later dropped against his roommate.Ten years later, Sprague learned that Inquirer reporters Kent Pollock and Greg Walter were investigating rumors that Sprague, when he was chief of homicide in the '60s, had killed the charges against Urella as a favor to his friend. Sprague refused to be interviewed for the article by either Pollock or Walter because, as he warned in several letters to then-Inquirer editor Gene Roberts (now the managing editor of The New York Times), he believed Walter was out to smear him for personal reasons. Just the year before, Sprague had successfully prosecuted Walter for illegally taping conversations on his own phone without letting the caller know. Word on the street, Sprague told Roberts, was that the reporter had vowed to "get him."By the time the case had worked its way up and down the court system, the file was a half-foot taller than Sprague. Finally, in 1992, he won a $34 million judgment, one of the largest libel judgments to stand on appeal. (It was later reduced to $24 million.) Last year, the paper agreed to pay Sprague an undisclosed amount to put the case to rest. Since then, says an Inquirer staffer, "he makes the media around here shudder.""Sprague certainly became a household name in libel law with that case," says the Libel Center's Baron, not simply for the whopping verdict, but also for his tenacity at pushing it through over two decades of litigation. Nowadays, Sprague even cites his own libel case as a precedent, which is not only effective as case law, but certainly adds a personal punch. Baron agrees: "It sure can't hurt to remind the court just who he is."The Long LegacyAnd it's not as if those courts are all to friendly to libel defendants to begin with. Two places to avoid if you're thinking of getty frisky with your gun or your pen, most lawyers will tell you, are Texas and Pennsylvania.Libel lawyer Sam Klein agrees. One reason, he says, might be the fact that the Inquirer has effectively stacked the deck against itself by being "very strong in covering judges and judicial misconduct." Baron concurs. At least part of the reason for Pennsylvania's bad reputation comes from the fact that so many judges have sued the state's papers themselves.While in the midst of the Sprague suit, the Inquirer unloaded its 1983 "Above the Law" series, which questioned the ethical conduct of members of the state Supreme Court and led to a lawsuit by Justice James McDermott. Three years later, the Inquirer won a Pulitzer for its "Disorder in the Court" series, blasting Philadelphia judges for "favoritism, political jockeying, behind-the-scenes deal-making, disdain for the public, inefficiency and cronyism."Little wonder, then, that media defendants find rough sailing in the Pennsylvania courts. The first move by the Times lawyers was to get the Christie case transferred out of state court and into the federal system. Next, they tried to get the whole thing thrown out, arguing that not only did Rosenberg do her best to ascertain the facts, but plenty of judges have said worse things about Christie.Sprague and his associate, Geoff Johnson, have kept it alive by successfully arguing before two consecutive judges that they can prove Rosenberg deliberately wrote things she should have known were false.Christie wasn't demoted, they say, and her convictions weren't frequently reversed for either hiding evidence or knocking blacks off juries. And the biting quote from Judge Cirillo, that "prosecutorial misconduct seems to arise in Philadelphia County more so than in any other county in this Commonwealth," wasn't even about Christie, they say -- he was referring to two other prosecutors!In other words, they complain, Rosenberg is calling Christie a "crazed prosecutor who runs rampant over defendants' rights and who is a racist and who puts innocent people in jail." Why Rosenberg would go after a woman she didn't know, especially when she had a higher profile target in Abraham, Johnson won't say. He has a theory based on information in confidential Times documents, but he's unable to reveal it at this stage in the litigation.While the defense seems on solid ground when it says a move from Homicide to Charging is obviously a demotion, it gets stuck on one critical element -- a review of court records doesn't seem to show that any of Christie's convictions were ultimately reversed for hiding evidence or "racial tactics." Some were challenged on those grounds, but other misconduct was usually cited in the reversals. The Times' lawyers have tried to finesse the point, arguing that misconduct is misconduct -- but hiding evidence is a far cry from being pushy.The Day in CourtAs of now, both sides are marching toward trial, and that's where things become potentially embarrassing for candidates Abraham and McMahon. Both are on a list of people the defense plans to hear testify. If Rosenberg's paragraph-in-question is false, the defense has to show why a well-trained and well-respected journalist could believe it was true.For McMahon, it means testifying under oath for the first time about what was going on in the D.A.'s office back when he made his now-notorious training video discussing race as a factor in jury-selection. Would his statements lead an outsider to believe that Philadelphia prosecutors have a policy of illegally arranging juries by racial makeup?For Abraham, it looks like a dilemma: Can she truthfully say that Christie wasn't demoted? If she was, were ethical problems a cause? Did Christie, in fact, have a history of undisclosed accusations about unethical practices? For months Abraham's office resisted the defense's demands that it turn over certain files pertaining to Christie, but recently, and reluctantly, it agreed under threat of contempt-of-court charges.Abraham will also be asked to explain another document. Several days after the profile hit the stands, Rosenberg received a warm, complimentary letter from Abraham that read, in part:"I really enjoyed our times together and I thought the article was absolutely fascinating. I hope your trip to Chile not only is rewarding but produces another great book. Maybe, when you are in Philadelphia the next time, you can autograph my copy of The Haunted Land: Facing Europe's Ghosts After Communism. To make certain that you don't forget me, I am including one of my t-shirts for your collection plus a small article about the seven killings in Philadelphia over the 4th of July weekend."It's signed "Kindest personal regards, Lynne Abraham."If Rosenberg had falsely accused one of Abraham's deputies of breaking the law, then why didn't the D.A. take her to task for it? What did Abraham, who was not in the D.A.'s office in the 1980s, know about the allegations of misconduct against Christie? These are likely to be issues the defense will want to know something about.The final chapter has several possibilities. The Times, breaking with tradition, could settle out of court with an admission of error and a cash payment. (Keep in mind, as the Times surely is, that Sprague won $24 million after he was accused of a prosecutorial misdeed). Christie could take it to trial and win, or she could lose and have her reputation tarnished for life.Whatever happens, we'll soon discover whether the Inquirer finds any of it is worth covering.