Kansas newspaper, staffers convicted of criminal libel

By The Associated Press

07.18.02

Printer-friendly page

KANSAS CITY, Kan. — A free-distribution newspaper, its editor and publisher have been convicted of criminal defamation for reporting that Mayor Carol Marinovich and her husband, a county judge, lived in another county.

"I feel vindicated because I just felt all along that they deliberately lied about my address," said Marinovich, mayor of the unified government serving Kansas City, Kan., and Wyandotte County. "They knew full well that I lived in Kansas City, Kansas, and they maliciously lied to destroy people's confidence in me."

By law, Marinovich and her husband, Wyandotte County District Judge Ernest Johnson, must live in the county where they hold office. Reports in The New Observer claimed they actually lived in the nearby and more affluent Johnson County.

The six-member jury which heard two days of testimony in the unusual case returned verdicts yesterday after four hours of deliberation.

Jurors found Observer Publications Inc., Publisher David Carson and Editor Edward H. Powers Jr. guilty on seven counts each of misdemeanor libel, all involving claims about the residence of the mayor and her husband.

The jurors failed to reach a verdict on one of four counts referring to the mayor's husband, and they acquitted the defendants on a claim that Steve Nicely, a former reporter for The Kansas City Star, had been hired to "lie for Marinovich."

Mark Birmingham, one of the attorneys for the defense, said he would ask the judge to set aside the verdict, and if that didn't happen he would appeal. A hearing on motions is set for Aug. 26.

Powers, 61, and Carson, 85, are both disbarred lawyers who use their periodically distributed paper to disseminate their political views. They have long been critical of Marinovich and Nick Tomasic, the Wyandotte County district attorney who filed the defamation case against them the day after a primary last year in which Marinovich led a field of five candidates in her re-election bid.

Powers said after the verdicts that the charges were politically motivated, saying Marinovich didn't want the public to hear the Observer's message.

"They wanted to control the news," he said.

A judge from Jackson County, Kan., Tracy Klinginsmith, heard the case and appointed David Farris, a private attorney from Atchison County, as special prosecutor. The judge ruled that Tomasic and members of his office could not prosecute because of a "history of contentiousness" between the district attorney and the defendants.

Farris said he had not decided whether to seek jail time for the defendants, who could face up to a year behind bars.

"You can't print a lie," Farris told jurors in his closing argument. "That's a crime in the state of Kansas and it's a misdemeanor — some of us wish it was a felony."

Farris said another judge told the newspaper that Marinovich and her husband were Wyandotte County residents. Still, he said, under a story headlined as an "apology," the paper wrote, "There are too many Marinovich sightings by too many reliable people" to believe that she lives in Wyandotte County.

Birmingham told jurors the charges were a "politically motivated prosecution intended to censor a newspaper that did not support Carol Marinovich in her re-election campaign."

The defense said Carson and Powers believed the claim that Marinovich lived outside the county was true.

First Amendment proponents decried the verdict.

"That's a scary thought in a democracy with a free press," said Dick Kurtenbach, executive director of the American Civil Liberties Union of Kansas and Western Missouri. "The idea of jailing someone for what they print in a newspaper is not what a democracy is all about."

Birmingham said the paper was still being published.

"They're not going to censor this paper out of existence," he said. "David Carson is a grizzled 85-year-old man. He's not going to back down."

Most defamation cases are civil matters in which defendants can be ordered to pay monetary damages.

"We typically associate criminal defamation with authoritarian governments. There are a lot of Latin American dictatorships with criminal defamation statutes," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Washington, D.C.

To be constitutional, criminal defamation laws require "actual malice" for a conviction. That means a story would not just have to be wrong, but the paper publishing it would have to know it is wrong, or show reckless disregard for its truth or falsity. Kansas is one of just two or three states that have criminal defamation statutes meeting that standard, Dalglish said.

Previous

Kansas tabloid in rare libel battle over local election coverage
Editor, co-publisher of feisty political paper face criminal-defamation charges brought by allies of Kansas City’s newly re-elected mayor.  05.09.01

Related

Kansas journalists face rare criminal-defamation charges
‘Throwing someone in jail for speaking is misplaced punishment,’ says press advocate.  04.03.01

Kansas Senate won't budge on criminal-defamation law
Bill sponsor says he won't pursue issue further this year after Senate refuses to eliminate or weaken statute.  02.19.03

Free-press group joins lawyer in challenging Alabama's criminal-libel law
'The notion that persons can be imprisoned for speech is completely antithetic to current law and the public conscience,' organization says in legal brief.  02.08.01

Puerto Rico won't appeal ruling that struck down criminal-libel law
Federal appeals court finds statute is unconstitutional 'as applied to statements regarding public officials or figures,' conflicts with First Amendment.  01.28.03