We think of judges, wearing robes and physically elevated above us in the courtroom, as being above the combat between litigants.
So it’s highly unusual when a judge — Jeffrey Minehart — files suit against a couple of authors who criticized his alleged conduct in a trial that electrified the city and the nation.
The case was the nine-week trial of West Philadelphia abortionist Kermit Gosnell, who was adjudicated to be a grotesque serial killer, his victims fetuses and, in some cases, babies. He was found guilty of three counts of first-degree murder.
The 38-page civil suit was filed Thursday in Common Pleas Court by attorney George Bochetto on behalf of Minehart. It alleges defamation in the book Gosnell: The Untold Story of America’s Most Prolific Serial Killer. The book is co-authored by Ann McElhinney and Phelim McAleer, who are also working on a movie about the trial. Also named in the suit is the Salem Radio Group, which owns the book’s publishing house and also conservative radio stations that gave the book a lot of free media, such as interviews with the authors. Salem wouldn’t comment before deadline.
The suit cites four claims in the book that are said to be false, “acting in reckless disregard and purposeful disregard of the truth, and thus with actual malice.”
The suit says the book describes Minehart as soft on crime, and states that he is a “drinking buddy” of Gosnell defense attorney Jack McMahon; that Minehart’s selection as judge was random and worrisome to unnamed prosecutors; and that Minehart banned cameras from the court.
The complaint produced newspaper stories showing Minehart as being fair in his legal career. It alleges McMahon is known to have not had a drink in 20 years. It reports that when Common Pleas Judge Benjamin Lerner asked prosecution and defense lawyers to agree on the selection of Minehart as the trial judge, it was not random and there was no objection. Finally, it says a Pennsylvania Supreme Court ruling bans cameras from courtrooms, not individual judges.
The suit maintains Minehart’s “impeccable reputation has been irreparably damaged,” causing the judge to suffer emotional and psychological harm.
All that may be true, and a judge and jury will decide that. But how unusual is it that a judge seeks a judicial remedy?
“Extremely unusual,” I’m told by M. Kelly Tillery, a partner with Pepper Hamilton, the prestigious Center City law firm. “You Google or do a Lexis-Nexis search and you will show a handful of cases where judges sue.”
There are two reasons, says Tillery, who has been involved in trade libel and intellectual property litigation for 38 years.
The first is that judges are supposed to have thick skin and be above the fray. The second? “As public figures, the standard is very much higher.”.
The landmark U.S. Supreme Court ruling in New York Times v. Sullivan ruled that the plaintiff would have to show actual malice, “meaning knowing the information was false,” says Tillery, “or you have reckless disregard of the truth, and either of those is incredibly hard to reach.”
That high standard explains “the dearth of cases out there,” he says.
While rare, such suits are not unknown. In 1983, for example, state Supreme Court Justice James McDermott successfully sued the Inquirer for defamation.
In addition to cash, Bochetto is seeking an injunction to block the sale of the book and halt the release of the prospective movie unless the alleged false claims are omitted.
The authors clearly are anti-abortion, and make claims that the city and state could and should have known what was going on in Gosnell’s Women’s Medical Society, what the media called the House of Horrors. You might make a case for that, but how does that make Minehart, who is now 70, a “hack” part of Philadelphia’s “liberal corrupt government”?
If he was sympathetic to Gosnell, Minehart had a strange way of showing it, handing Gosnell a life sentence without parole. Author McAleer declined to comment on the suit because he had not yet read it.
Minehart was “level-headed, fair and unbiased,” says reporter Mensah M. Dean, who covered the trial for the Daily News. “No one complained, to my knowledge.”
Reviewers and readers will have to determine if the authors’ opinions hold up.
The court will determine if they acted recklessly and with malice.