Because the record was "insufficiently fermented" when a trial judge found a prosecutor was not a public official, a federal appeals court has thrown out a $950,000 libel verdict against the Boston Phoenix weekly newspaper.

In awarding the damages to Marc E. Mandel, a former Maryland assistant state's attorney, a jury found the Phoenix was negligent in describing him as a child molester in an article about child custody disputes.

Senior U.S. District Judge Edward F. Harrington had ruled on summary judgment that Mandel was a private figure and therefore did not have to meet the higher actual malice standard that applies to public official plaintiffs in defamation cases.

Ordering a new trial, the 1st U.S. Circuit Court of Appeal said the principle of not drinking wine before its time applies to summary judgment:

[I]t is a deliciously helpful device if properly timed, but one that can leave a sour taste if brought to bear on an insufficiently fermented record.

The factual record at the summary judgment stage of Mandel's case "was too uncertain to warrant a legal conclusion either way about Mandel's status" under libel law, the opinion concluded.

The good news for Mandel is the court found he sufficiently established at trial that the Phoenix's statements about him were false and the paper failed to exercise due care in publishing them.

By Matthew Heller
8/4/06