A Wake County Superior Court judge refused to dismiss a libel suit against The News & Observer on Tuesday, but he did grant the newspaper’s request to throw out all libel claims against the N&O’s Sacramento, Calif.-based owner, McClatchy Newspapers.
Judge A. Graham Shirley II’s ruling came on the ninth day of a libel trial being pursued by State Bureau of Investigation agent Beth Desmond against the N&O and reporter Mandy Locke for a story published in August 2010.
That leaves Desmond’s case alive against the N&O and Locke in what is believed to be the first libel trial in the N&O’s modern history. Most of the allegedly libelous statements were published in the fourth article of a 2010 investigative series about the flaws of forensic analysis in criminal trials and the practices of the SBI crime lab. One statement said independent firearms experts questioned whether Desmond knew anything about ballistics analysis; another said some experts suspected Desmond falsified evidence to help Pitt County prosecutors win a murder conviction in 2006.
“All of us know it’s not an ordinary case – it’s not a civil fender-bender,” the N&O’s lawyer, Mark Prak, told the judge when the jury was out of the courtroom.
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“It really boils down to the ‘he said-she said,’ in this case,” Desmond’s lawyer, James Johnson, told the judge. “It’s a question for the jury: Who are they going to believe – Mandy Locke or these three experts?”
The N&O contends Locke’s 2010 story was accurate and was based on Locke’s interpretation and paraphrasing of interviews and documents. In trial testimony, however, the firearms experts who talked to Locke for the story said they never told her that Desmond doesn’t know anything about ballistics or that she falsified evidence.
“All these experts said they didn’t tell Mandy Locke what she published,” Johnson said in court.
Locke could testify as early as Wednesday about her interviews and her reporting.
To prevail, Desmond must convince the jury not only that the N&O published false statements about her, but that the reporter knew or suspected the statements were false. Desmond must also convince the jury that she was harmed by the alleged libel.
Desmond’s final witness Tuesday was UNC-Greensboro economist Albert Link, who calculated that by the time Desmond retires at age 55, as she is planning to do, she will have lost $61,935 in wages and benefits as a result of job transfers she requested after the N&O’s story ran.
Desmond, 51, says she was forced to seek a transfer in 2013 and another in 2014 because the N&O story triggered post-traumatic stress disorder and made it difficult for her to testify in court about her firearms analysis. She will also seek compensation for her medical bills and other damages.
The N&O began presenting its witnesses, starting with investigative reporter Joseph Neff. He explained how a 2009 report by the National Academy of Sciences, titled “Strengthening Forensic Science in the United States: A Path Forward,” shaped his 2010 SBI coverage with Locke.
Neff said the NAS report taught him that ballistics analysis and other forensic analysis, with the notable exception of DNA analysis, is a subjective appraisal that lacks a scientific basis or a statistical foundation.