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Court of Appeal, First District, Division 5, California.

Frank McCOY, et al., Plaintiffs and Respondents, v. The HEARST CORPORATION, et al., Defendants and Appellants.


Decided: October 23, 1985

E. John Kleines, Kleines, Ballati & Getchell, San Francisco, Arthur B. Hanson, Hanson, O'Brien, Birney & Butler, Washington, D.C., for defendants and appellants The Hearst Corp., et al. Margaret C. Crosby, Arthur Brunwasser, San Francisco, for appellants Ramirez & Bergman. Charles O. Morgan, Jr., San Francisco, for plaintiffs and respondents McCoy, et al.

Defendants/appellants Hearst Corporation, publisher of the San Francisco Examiner (together, Examiner), and its reporters Raul Ramirez and Lowell Bergman (collectively appellants) appeal from a libel judgment against them in favor of San Francisco Police Officers Frank McCoy and Edward Erdelatz and former Deputy District Attorney Pierre Merle (collectively respondents).   Each respondent was awarded $500,000 compensatory damages and $500,000 punitive damages against the Examiner, and $250,000 compensatory and $10,000 punitive damages against Ramirez and Bergman each.

The judgment was based on a series of articles published in the Examiner under the by-line of Ramirez, assisted by Bergman.1  In substance, the articles charged respondents with intimidating and threatening witnesses and surbornation of perjury in the criminal trial of People v. Richard Lee.   Lee was convicted in San Francisco in 1972 of the first degree murder of Poole Leong, a Chinese youth, allegedly because of on-going disputes between rival youth gangs in San Francisco's Chinatown district.

The key prosecution witness in Lee's trial was Thomas Henry Porter, a convicted felon and Lee's former cell mate.   Porter testified that Lee admitted Leong's murder to him when the two of them were in jail together awaiting their separate, unrelated trials.   The published articles charged that Porter's testimony during Lee's trial was false, that respondents knew it to be false and that respondents engaged in threats, physical coercion and bribery to force Porter into testifying falsely in order to obtain Lee's conviction.

Approximately two years after the trial Lee's brother approached Bergman, a free-lance reporter, about investigating the events surrounding the case.   Bergman became interested and during the course of his investigation located Porter in a federal prison in Indiana.   He wrote Porter and advised him he was a “journalist and researcher investigating the murder trial of Richard Lee.”   He also stated:  “In addition, I am interested in your own history and present status.”   He asked Porter to call him collect.

Porter responded by telephoning Bergman and the two arranged for Bergman to visit Porter in prison.   Bergman thereafter met with Porter in January 1975.   The substance of their conversation and the manner in which a statement was obtained from Porter forms the basis for the judgment below.   Respondents claimed that Bergman persuaded Porter to sign a false affidavit wherein Porter stated that his testimony during the Lee trial was false, was induced by beatings and threats to his life by McCoy and Erdelatz, by promises from respondents of leniency for his girl friend who was also facing charges at that time, and a concurrent sentence on his own charges.   Porter also swore in the affidavit that Merle prepared a written script of his false testimony which he was required to memorize and relate to the jury.   Respondents further claimed that Porter's affidavit was obtained through promises by Bergman to have a California detainer on Porter removed.2

In April 1975, Bergman persuaded the Examiner to publish a story about the Lee case and the roles of Porter, Merle, McCoy and Erdelatz therein.   Ramirez, an Examiner staff reporter, was assigned to write the story and Bergman was to have exclusive responsibility for obtaining Porter's version of the facts.   Bergman obtained an attorney in Indiana, John Manning, to visit Porter and secure a signed affidavit in which Porter related the defamatory allegations.

The articles were published in the Examiner on May 19, 20 and 21, 1976.   In addition to the charges that respondents conspired to suborn perjury, the articles also stated erroneously that Merle had been disciplined by the State Bar in connection with a separate matter.   Respondents demanded a retraction pursuant to Civil Code section 48a,3 but received no response.

After Lee's petition for habeas corpus was filed seeking relief on the basis of Porter's affidavit, the People obtained a second affidavit from Porter in which he recanted his initial affidavit for Bergman and reaffirmed his testimony given during the Lee trial.   He admitted he signed the initial false affidavit at Bergman's request in exchange for Bergman's help in removing the hold imposed by his California detainer.

The relationship between Bergman and Porter and appellants' numerous contentions of error are discussed hereafter as they relate to the issue under discussion.


In the leading case of New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the United States Supreme Court held that First Amendment principles require that public officials suing for libel must, as a prerequisite to recovery, establish by clear and convincing evidence that the defamatory publication is false and that it was published with “actual malice,” which the high court defined as knowledge that the statement was false, or reckless disregard of whether it was false or not.  (Id., at pp. 279–280, 84 S.Ct. 710, 11 L.Ed.2d 686.)   Respondents concede their status as public officials within the New York Times rule.  (See, e.g., Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 352, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789;  Gomes v. Fried (1982) 136 Cal.App.3d 924, 933, 186 Cal.Rptr. 605.)

New York Times also required appellate courts in such cases to “ ‘make an independent examination of the whole record’ ” to assure “that the judgment does not constitute a forbidden intrusion on the field of free expression.”   (New York Times Co. v. Sullivan, supra, 376 U.S. at p. 285, 84 S.Ct. at p. 729;  Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502;  St. Amant v. Thompson (1968) 390 U.S. 727, 732–733, 88 S.Ct. 1323;  Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 389, 102 Cal.Rptr. 122.)  “[T]he rule is that we ‘examine for ourselves the statements in issue and the circumstances under which they were made to see ․ whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.’ ”  (New York Times Co. v. Sullivan, supra, 376 U.S. at p. 285, 84 S.Ct. at p. 728.)

“The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law.”  (Bose Corp. v. Consumers Union of U.S., Inc., supra, 466 U.S. at p. ––––, 104 S.Ct. at p. 1965.)   After reviewing the many cases in which it had been applied, the Bose court provided the clearest statement of the rule:  “In such cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.”  (Id., 466 U.S. at p. ––––, 104 S.Ct. at p. 1962;  see also Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 11, 90 S.Ct. 1537, 1540, 26 L.Ed.2d 6.)   This does not mean, contrary to appellants' view, that we are to disregard the jury's findings concerning credibility of witnesses or permissive inferences which it might draw.   Appellate courts are ill equipped to do so.   The inflection or tone of voice, the emphasis of expression, the hesitant answer and the general attitude and demeanor of the witness are unavailable to us from the printed record.   Our function on review is to “examine the evidence to see whether, if all permissible inferences were drawn in the plaintiff's favor and all questions of credibility were resolved in his behalf, the evidence then would demonstrate by clear and convincing proof that the libelous material was published with actual malice.   Once this question has been resolved in the plaintiff's favor, the jury's findings as to those inferences and as to witness credibility are determinative.”  (Alioto v. Cowles Communications, Inc. (9th Cir.1975) 519 F.2d 777, 780;  Bose Corp. v. Consumers Union of U.S., Inc., supra, 466 U.S. at p. ––––, 104 S.Ct. at pp. 1955, 1959;  Time v. Hill (1967) 385 U.S. 374, 394, 87 S.Ct. 534, 545, 17 L.Ed.2d 456;  Bindrim v. Mitchell (1979) 92 Cal.App.3d 61, 72, 155 Cal.Rptr. 29;  Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 433, 142 Cal.Rptr. 304.)  “[I]t is for the jury, not for this Court, to determine whether there was knowing or reckless falsehood.”  (Time v. Hill, supra, 385 U.S. at p. 394, fn. 11, 87 S.Ct. at p. 545, fn. 11.)


Under these guidelines we dispose initially with some preliminary issues.   First, we emphasize that we are not dealing with the right of the press to report, criticize or otherwise comment upon the conduct or behavior of public officials.   That right is properly and firmly protected by the First Amendment.   In New York Times Co. v. Sullivan, supra, 376 U.S. at p. 270, 84 S.Ct. at p. 720, the high court declared a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  (See also Garrison v. Louisiana (1964) 379 U.S. 64, 74–75, 85 S.Ct. 209, 215–16, 13 L.Ed.2d 125, criticized on other grounds, 388 U.S. 130, 134, 87 S.Ct. 1975, 1980, 18 L.Ed.2d 1094;  Okun v. Superior Court (1981) 29 Cal.3d 442, 451, 175 Cal.Rptr. 157, 629 P.2d 1369;  Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 604, 131 Cal.Rptr. 641, 552 P.2d 425.)   We are dealing instead with the false publication, as a fact, that two police officers and a deputy district attorney conspired to and did suborn perjury in a criminal prosecution in order to convict an innocent person.   In fact, we are confronted with clear and convincing evidence to support a finding that the false charges were fabricated by one of the appellants herein.

 Second, libelous speech is not protected by the First Amendment.   (Bose Corp. v. Consumers Union of U.S., Inc., supra, 466 U.S. at p. ––––, 104 S.Ct. at p. 1961;  Herbert v. Lando (1979) 441 U.S. 153, 172, 99 S.Ct. 1635, 1646, 60 L.Ed.2d 115;  Gertz v. Robert Welch, Inc., supra, 418 U.S. at p. 340, 94 S.Ct. at p. 3007;  Time v. Hill, supra, 385 U.S. at pp. 389–390, 87 S.Ct. at p. 542–543;  Garrison v. Louisiana, supra, 379 U.S. at p. 75, 85 S.Ct. at p. 216.)  “Libel is a false and unprivileged publication ․ which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  (Civ.Code, § 45.)   The publications at issue accused respondents of subornation of perjury, a serious crime involving moral turpitude.  (Pen.Code, § 127.)  “The charge of commission of some kind of crime is obviously libel per se.”  (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 281, p. 2550;  Gregory v. McDonnell Douglas Corp., supra, 17 Cal.3d at p. 604, 131 Cal.Rptr. 641, 552 P.2d 425;  Cianci v. New Times Pub. Co. (2nd Cir.1980) 639 F.2d 54, 63–64.)  “[T]here is no constitutional value in false statements of fact.”  (Gertz v. Robert Welch, Inc., supra, 418 U.S. at p. 340, 94 S.Ct. at p. 3007.)  “Accusations of criminal activity, even in the form of opinion, are not constitutionally protected․  While inquiry into motivation is within the scope of absolute privilege, outright charges of illegal conduct, if false, are protected solely by the actual malice test.   As noted by the Supreme Court of California, there is a critical distinction between opinions which attribute improper motives to a public officer and accusations, in whatever form, that an individual has committed a crime or is personally dishonest.   No First Amendment protection enfolds false charges of criminal behavior.  Gregory v. McDonnell Douglas Corp. [17 Cal.3d 596, 604, 131 Cal.Rptr. 641, 552 P.2d 425․].”  (Cianci v. New Times Pub. Co., supra, at p. 63, citing Rinaldi v. Holt, Rinehart & Winston, Inc. (1977) 42 N.Y.2d 369, 382, 397 N.Y.S.2d 943, 366 N.E.2d 1299, emphasis in original.)   Respondents were accused of suborning perjury of a critical witness through threats, beatings and bribery to obtain the murder conviction of an innocent person.   It is difficult to imagine an accusation more damaging to the integrity and careers of attorneys and police officers.4  (See Moranville v. Aletto (1957) 153 Cal.App.2d 667, 672, 315 P.2d 91.)


Appellants contend the publications are privileged under Civil Code section 47, subdivision 4, which establishes a privilege for all “fair and true” reports of judicial proceedings or “anything said in the course thereof.”   They claim the publications were related to Richard Lee's pending petition for writ of habeas corpus, and that the trial court erred by failing to instruct the jury regarding the possible application of the privilege.

 The existence of a privileged occasion is a question of law for determination by the court, while fairness is a factual question for the jury.  (Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 90 Cal.Rptr. 188;  Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 418–419, 46 Cal.Rptr. 135.)   Generally, a report is fair and true if “ ‘․ the substance, the gist, the sting of the libelous charge be justified, and if the gist of the charge be established by the evidence the defendant has made his case [for fairness and truth].’ ”  (Hayward v. Watsonville Register-Pajaronian and Sun (1968) 265 Cal.App.2d 255, 262, 71 Cal.Rptr. 295, citing Kurata v. Los Angeles News Pub. Co. (1935) 4 Cal.App.2d 224, 227–228, 40 P.2d 520.)

 California takes “a comparatively broad view” of the term “judicial proceeding” in Civil Code section 47 (Glenn v. Gibson (1946) 75 Cal.App.2d 649, 660, 171 P.2d 118;  Albertson v. Raboff (1956) 46 Cal.2d 375, 380–381, 295 P.2d 405;  Hayward v. Watsonville Register-Pajaronian and Sun, supra, 265 Cal.App.2d at p. 260, 71 Cal.Rptr. 295;  see also Kurata v. Los Angeles News Pub. Co., supra, 4 Cal.App.2d 224, 40 P.2d 520), and has extended it not only to statements made during trial, but to proceedings taken preliminary thereto.  (Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 577, 131 Cal.Rptr. 592;  Larmour v. Campanale (1979) 96 Cal.App.3d 566, 568–569, 158 Cal.Rptr. 143;  Izzi v. Rellas (1980) 104 Cal.App.3d 254, 261, 264, 163 Cal.Rptr. 689.)   Thus, the privilege of Civil Code section 47, subdivision 4, extends at least to fair and true reports of proceedings preliminary to litigation which are themselves privileged as to the parties to the proceedings.  (Handelsman v. San Francisco Chronicle, supra, 11 Cal.App.3d 381, 90 Cal.Rptr. 188.)

 However, the privilege is not without its limitations.   In order to invoke its protection, the alleged defamatory matter must, in the case of litigants, be made within a judicial proceeding, have some connection or logical relation to the proceeding and be made “in furtherance of the litigation and to promote the interests of justice.”  (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825, 826, 106 Cal.Rptr. 718, emphasis in original.)  “ ‘[I]t is equally clear, however, that a publisher who in fact espouses or concurs in the charges made by others or who deliberately distorts these statements to launch a personal attack of his own on a public figure, cannot rely on a privilege of neutral reportage’ but rather ‘assumes responsibility for the underlying accusations.’ ”  (Cianci v. New Times Pub. Co., supra, 639 F.2d at p. 68, quoting Edwards v. National Audubon Society (2nd Cir.1977) 556 F.2d 113, 120.)

The Examiner took the position that the articles were developed as a project of “investigative reporting ․ aided by a grant from the Fund for Investigation Journalism of Washington, D.C.”   The decision to investigate and publish occurred long in advance of the initiation or conception of Lee's habeas corpus proceeding.   The Examiner announced in its first article that its stories were “based on an independent investigation and on interviews with witnesses and others close to the case.”   It was the Examiner, through Bergman, who persuaded Porter to provide the affidavit, under questioned circumstances which we describe, infra.   The Examiner admitted this when its editor was questioned:  “[Q] Well, Mr. Murphy, it was your paper that got all of these—or got this affidavit;  wasn't it?  [A] Yes, sir.  [Q] And it was your paper that started all these proceedings, wasn't it?  [A] Yes.”   In addition, the Examiner paid the expenses of John Manning, the Indiana attorney who obtained Porter's signature to the affidavit;  it arranged for an attorney to represent May Tom, a witness at the Lee trial whom appellants wanted to testify in connection with the habeas corpus proceeding, and it obtained the attorney representing Lee in the habeas corpus proceeding.   It also published an editorial which its editor, Mr. Murphy, claimed was designed to influence the courts to review the Lee case through the habeas corpus proceeding.5

The questioned articles were written not as a report of any judicial proceeding, but rather as an expose of police and district attorney corruption which the Examiner claimed to have uncovered through its own independent investigation, as it repeatedly reminded the reader.   The writers and publisher were espousing and concurring in the charges made by Porter with the preconceived view that they were true, which is graphically illustrated not only by the articles themselves, but in the testimony of appellant Ramirez, under whose by-line the stories appeared:  “[Q] Was it your intention when you wrote these articles, May 19, 20, 21, to convey to the reading public that Richard Lee had been framed up by the police department?  [A] If you want a yes or no answer, I will say yes.”   Bergman testified that before he collaborated on the articles, he felt that respondents were “involved in a perversion and a corruption of the criminal justice system.”

Bergman also wrote to Porter and told him he would not assist him in removing the California detainer until he had Porter's signed affidavit.   The relevant portions of that letter state:  “I can't make promises or go to bat for you in a full scale way until Manning [the Indiana attorney retained to obtain Porter's affidavit] finishes otherwise it will all get very complicated.   I thought we had a clear understanding there.”   Bergman admitted he told Porter that Porter would have to “go further” than merely talk to Bergman if he wanted Bergman to become his “friend,” and that any help to be forthcoming “would depend upon what's happening when we talked.”   Bergman's own notes say that Porter understands that “actions are what count” and until then Bergman would not help in removing the California detainer.

 Thus, it is clear that the initial Porter affidavit came into being only as a result of the actions and conduct of the Examiner and its agents.   The privilege was not designed to shield from liability those who create and file false or libelous charges with the courts in order to legitimize their subsequent publication.  (See, e.g., Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d at pp. 825–827, 106 Cal.Rptr. 718.) 6

 Given their verdict, the jury necessarily found the publications to be false.   It also found that appellants either knew them to be false or published with reckless disregard of their falsity.   Consequently, the issue of “fairness” becomes irrelevant, since Civil Code section 47, subdivision 4, requires that the report be both “fair and true” to be privileged.   Moreover, if fairness is considered, the finding that respondents published with knowing or reckless disregard of falsehood negates the element of fairness.   Appellants' contention that the publications are privileged because they truthfully reported what was contained in the Porter affidavit cannot be sustained, since they created that affidavit.   To allow them such protection would permit the sort of “bootleg” approach condemned by the Bradley court.


 We also conclude that sufficient clear and convincing evidence exists to support a finding of actual malice which, as we previously noted, is defined as knowledge that the published statement was false, or publication with reckless disregard of whether it was false or not.   The existence of actual malice involves the determination of the publisher's state of mind and is a factual question for the jury.  (Time v. Hill, supra, 385 U.S. at p. 394, 87 S.Ct. at p. 545;  Alioto v. Cowles Communications, Inc., supra, 519 F.2d at p. 780;  Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 258, 208 Cal.Rptr. 137, 690 P.2d 610;  Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d at p. 433, 142 Cal.Rptr. 304.)   Actual malice may be established by either direct or circumstantial evidence.  (St. Amant v. Thompson, supra, 390 U.S. 727, 88 S.Ct. 1323;  Herbert v. Lando, supra, 441 U.S. at p. 164, fn. 12, 99 S.Ct. at p. 1642, fn. 12;  Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at pp. 257–258, 208 Cal.Rptr. 137, 690 P.2d 610.)   Our conclusion that a finding of actual malice is supported by clear and convincing evidence in the instant case includes both the elements of knowledge and of reckless disregard.

Actual knowledge needs no definition and, in the context of this record, finds its support in the trial testimony of Porter.   Porter testified he told Bergman that his testimony in the Lee case was true, but that Bergman was not satisfied with that statement and told him he could not affect the removal of the California detainer unless Porter changed his story.   He said Bergman told him the San Francisco police were known for threatening witnesses into giving perjured testimony.   Porter further stated that Bergman suggested to him what he should say in recanting his Lee trial testimony.   This constitutes direct evidence of actual knowledge, at least as to Bergman.

Reckless disregard “cannot be fully encompassed in one infallible definition.   Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law․  [R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.   There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.   Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice․  [¶]  The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true.   The finder of fact must determine whether the publication was indeed made in good faith.   Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant [or] is the product of his imagination․  Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation.   Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”  (St. Amant v. Thompson, supra, 390 U.S. at pp. 730–732, 88 S.Ct. at p. 1323.)

A review of some of the factors which could reasonably be expected to affect the veracity of the informant, the accuracy of his report and appellants' state of mind supports respondents' position that the finding of actual malice is based upon clear and convincing evidence:

1) Porter was desperate to have the California detainer removed;  he did not want to return to California to serve additional time when his federal sentence was up.   He was concerned about the treatment he might receive in a California prison as an informant.

2) Bergman repeatedly told Porter he would help him with the California detainer only in exchange for Porter's cooperation.   In his letters to Porter he advised him that Porter's attorneys were not doing anything for him, but that Bergman had a friend “[r]ight smack in the middle of the Governor's office” who would assist in removing the California detainer.   As mentioned above, Bergman told Porter he would not help him until Porter produced the affidavit repudiating his Lee trial testimony.

3) John Manning, the attorney who interviewed Porter and obtained his affidavit had serious reservations about Porter's testimony, which he conveyed to Bergman.   Witness the following testimony from Manning during the trial below:  “[Q] When you left Porter after your second meeting, had you formed any opinion as to his veracity at that time?  [A] Oh, sure.  [Q] What was your opinion then?  [A] My opinion and my opinion now is that Porter would say or do anything to improve his position behind bars.  [Q] Would it also be correct that you had some doubt in your own mind as to the truth of the matters in there?  [A] Yes.  [Q] All right.  [A] I will tell you the reason:  Because I was not able to pin him down on some details that in my own mind I felt I should have been able to pin him down on if he was telling me the truth.  [Q] Did you ever convey that doubt to Mr. Bergman?  [A] Yes.”

4) Appellant Ramirez had been advised by one of his colleagues on the Examiner, by the attorney for Richard Lee and by his city editor that Erdelatz and McCoy were considered to be good police officers.   Both Ramirez and the city editor, William Burkhardt, knew that the publication of the articles would seriously damage respondents' reputations.   Burkhardt recognized the libelous nature of the articles and sent them on to the managing editor and the Examiner's attorneys for review and comment prior to publication.

5) Appellants had Porter's statement for nearly one and one-half years and his affidavit for nearly a year before the articles in question were published.   During that period they conducted an investigation, including a fruitless search for three specific witnesses whom Porter said he told about respondents' alleged misconduct.7  Porter also stated that the injuries he received as a result of the beatings from the officers required treatment while he was in jail in San Francisco.   No medical records could be located to verify this statement.   In total, appellants were unable to corroborate any of Porter's libelous charges through any other source, although they admitted they knew it was important to do so.8  In fact, they said Examiner policy required corroboration.

6) In an internal memorandum from Ramirez to his editor and other Examiner employees, Ramirez admitted that Porter's statement should be viewed with skepticism.   Ramirez himself testified that he did not believe everything Porter said in his affidavit, but characterized it as “exaggeration.”   Bergman also admitted at one point that he did not accept all of Porter's statement as being true.9

7) When Bergman interviewed Porter in prison, Porter did not tell him of the alleged beatings by Erdelatz and McCoy which necessitated medical treatment.   Appellants first learned this information when they received Porter's affidavit from Manning.   Yet, no one spoke to Porter again to inquire about this new and significant information, and why Porter had not told Bergman during the interview.   In fact, no one from the Examiner staff ever met with Porter.   Ramirez even testified that he did not recall ever having a discussion with Bergman about his notes of the Porter interview.   However, he said Bergman told him Porter was “confused and disorganized about things.”

 8) Appellants failed to follow through with an investigation into firsthand knowledge of Richard Lee's involvement in the murder.   Shortly after Leong was killed and prior to Lee's arrest, Lee conferred with a prominent and highly respected criminal lawyer to discuss his case.   This attorney did not represent Lee at trial, but appellants discovered the conference had occurred and contacted the attorney for information.   The attorney advised them he could not discuss it with them because of the attorney-client privilege, but would do so if they obtained a release from Lee.   However, he also advised them that what he knew would not be helpful to Lee.   Appellants then asked Lee if he would waive the privilege to permit them to speak with the attorney.   Lee agreed to do so, but advised appellants that he never discussed Leong's murder with the attorney.   Appellants accepted Lee's story and never contacted the attorney again to determine what information he had.10  Although failure to investigate will not, by itself, necessarily support reckless misconduct, it is a factor which may be considered, at least where, as here, there was time to investigate.  (Herbert v. Lando, supra, 441 U.S. at p. 164, fn. 12, 99 S.Ct. at p. 1642, fn. 12.)

9) Most importantly, following his trial and conviction, Lee admitted to the police that Porter's trial testimony was essentially accurate.

Porter testified, in substance, that he was prompted into producing the false affidavit by Bergman's offers of help in removing the California detainer, and that Bergman knew his affidavit was false because Porter told Bergman that his testimony during Lee's trial was truthful.   He said Bergman told him he needed a different sort of statement from him, and that if he changed his story Bergman would help him with the detainer.   He said that when Bergman first asked him if the police had threatened him he told him they had not.   Bergman then told him that the San Francisco police had been known to pressure people, to get false statements from them and threaten their lives.   Bergman suggested that he would have to change his story if he expected help getting his detainer removed.   He said Bergman asked him leading questions and suggested what he should say.

In addition, prior to the time Bergman first contacted him, Porter had written to Erdelatz and McCoy thanking them for their kindness and assistance during the Lee trial, and wishing them and their families a Merry Christmas:  unusual conduct by one who had been beaten and had his life threatened by those same officers.

With regard to the publication that Merle had been disciplined by the State Bar, the original source of that information was Patrick Hallinan, a local attorney, who advised Ramirez that he had officially complained about Merle to the State Bar.   However, before the articles were written, Hallinan advised Ramirez that the State Bar proceedings against Merle had been dropped.   Bergman admitted that he knew the charges had to be reviewed by a higher committee of the Bar, and that he was “not clear” whether Merle “had avoided sanctions at a higher level.”

The foregoing constitutes not only substantial evidence that the publications were false, but also clear and convincing evidence to support a finding of actual malice under New York Times.


 Appellants assign as error numerous evidentiary rulings by the trial court.   At oral argument they advanced the theory that the definition of relevant evidence in Evidence Code section 210 and the court's discretion to exclude evidence under Evidence Code section 352 have no application to defendants in libel suits, although they contend the same statutes operate to limit plaintiffs' evidence.   Specifically, they contend there are neither qualitative nor quantitative limits on the evidence which they can introduce to demonstrate their state of mind at the time of publication.   Appellants offer no authority for this unique proposition, and we are aware of none.   We agree that defendants in libel actions, particularly those brought by public officers or figures, must be accorded wide latitude in presenting evidence bearing on their state of mind.  (St. Amant v. Thompson, supra, 390 U.S. 727, 88 S.Ct. 1323;  Herbert v. Lando, supra, 441 U.S. 153, 99 S.Ct. 1635;  Hearne v. De Young (1898) 119 Cal. 670, 52 P. 150, 499.)   However, in the absence of contrary authoritative requirements, we will be guided by the Evidence Code and prior decisional law.

Evidence must be relevant to be admissible.  (Evid.Code, § 350.)   Relevant evidence is defined as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid.Code, § 210;  see also, 1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 19.2, pp. 452–453;  Witkin, Cal. Evidence (2d ed. 1966) § 302 et seq.)

 Article 6, section 13 of the California Constitution provides that “[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of ․ the improper admission or rejection of evidence ․ unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.  (Clifton v. Ulis (1976) 17 Cal.3d 99, 105–106, 130 Cal.Rptr. 155, 549 P.2d 1251;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853, 139 Cal.Rptr. 888.)

The Evidence Code provides additional guidance as to when an evidentiary ruling may be held erroneous and/or when a judgment may be reversed because of an erroneous admission or exclusion of evidence.

As to the erroneous admission of evidence, Evidence Code section 353 states that “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:  (a) There appears of record an objection to or motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion;  and (b) the court ․ is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”

With regard to the erroneous exclusion of evidence, Evidence Code section 354 provides that “[a] verdict or findings shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court ․ is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:  (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;  (b) The rulings of the court made compliance with subdivision (a) futile;  or (c) The evidence was sought by questions asked during cross-examination or recross-examination.”

Evidence Code section 352 states, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury.”  (Emphasis added.)

 The trial court's exclusive discretion to analyze and determine the evidentiary value of an offer of proof under section 352 attack is well established.  (Rosener v. Sears Roebuck & Co. (1980) 110 Cal.App.3d 740, 756, 168 Cal.Rptr. 237;  Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 295, 136 Cal.Rptr. 603;  Cain v. State Farm Mut. Auto. Ins. Co. (1975) 47 Cal.App.3d 783, 798, 121 Cal.Rptr. 200.)   In reviewing the trial court's exercise of discretion under section 352, “an appellate court is neither authorized nor warranted to substitute its judgment for that of the trial judge.”   Only where the alleged abuse of discretion clearly constitutes a miscarriage of justice, may the appellate court reverse the judgment.   (Cain v. State Farm Mut. Auto. Ins. Co., supra, at p. 798, 121 Cal.Rptr. 200.)

 The trial court's discretion, under section 352, is not unlimited, however.   It must balance the probative value of the proffered evidence against its prejudicial effect in the context of the case at hand.  (Burke v. Almaden Vineyards, Inc. (1978) 86 Cal.App.3d 768, 774, 150 Cal.Rptr. 419.)   The more substantial the probative value, the greater must be the prejudice in order to justify the exclusion.  “If such probative value is absent [however], this court will not interfere with the trial court's determination [under section 352].”  (Brainard v. Cotner (1976) 59 Cal.App.3d 790, 795, 130 Cal.Rptr. 915, emphasis added.)

 A trial court's analysis, under section 352 objection, should exclude the following:  the materiality of the evidence;  the strength of its relationship to the issue upon which it is offered;  whether it goes to a primary issue in the case;  and whether it is necessary to prove the proponent's case or whether the evidence is merely cumulative to other available and sufficient proof.   Cumulative evidence may be regarded as having less probative value.  (Burke v. Almaden Vineyards, Inc., supra, 86 Cal.App.3d at p. 774, 150 Cal.Rptr. 419;  Thor v. Boska (1974) 38 Cal.App.3d 558, 568, fn. 8, 113 Cal.Rptr. 296.)   Further, where the proffered evidence “obscur[es] the more immediate question” at hand, it is within the trial court's discretion to exclude it.  (Wagner v. Benson (1980) 101 Cal.App.3d 27, 36, 161 Cal.Rptr. 516.)

 Where the minimal probative value of the proffered evidence is outweighed by the disadvantage of protracting an already lengthy trial, it is not error for the trial court to exclude it.  (City of Los Angeles v. Retlaw Enterprises, Inc. (1976) 16 Cal.3d 473, 491, 128 Cal.Rptr. 436, 546 P.2d 1380;  Rosener v. Sears Roebuck & Co., supra, 110 Cal.App.3d at p. 756, 168 Cal.Rptr. 237.)

 Detrimental effect to appellant is not necessarily undue prejudice.   When the only prejudice to the party lies in material and relevant inferences to a crucial issue, the trial court is within its discretion to admit such evidence.  (Burke v. Almaden Vineyards, Inc., supra, 86 Cal.App.3d at p. 773, 150 Cal.Rptr. 419;  Thor v. Boska, supra, 38 Cal.App.3d at p. 567, 113 Cal.Rptr. 296.)

Within these guidelines we consider the various claims of error in the exclusion and admission of evidence.11

 (a) Bergman's politics, family life and pending libel suit.

Respondents were able to introduce, over objection, that Bergman had another libel suit pending and that he had children out of wedlock.   Respondents contend the evidence concerning the pending libel suit was relevant in that it should have put the Examiner on notice that Bergman's material was suspect.   They attempt to justify the evidence of Bergman's marital situation on the grounds that it showed he needed money to support his children.   Since he was a free-lance journalist working for the Examiner only for this series of articles, respondents reason that financial pressures forced him to get the story into print regardless of its accuracy or obvious harm to them.   They also contend that this evidence was inevitably coming before the jury because it was contained in correspondence from Bergman to Porter, and since the correspondence was independently admissible, the objectionable material would also be in evidence.   We agree with appellants that introduction of this matter was error.

 Libel suits are an inherent risk in the publishing business, and the mere fact that a suit has been filed on an unrelated matter does not establish that the reporter who wrote it was reckless or had knowledge that the article contained false facts, or that the pending action has any merit.   In the instant case, it had no tendency in reason to put the Examiner on notice that Bergman's reports on the subject matter in the instant case were false or inaccurate.

 Bergman's marital status is also irrelevant.   The references in the correspondence to the pending libel action could easily have been deleted;  the reference to Bergman's children does not even mention his marital status.

Appellants also contend that respondents were improperly permitted to explore Bergman's political beliefs, and to inquire about the newspapers for which he previously wrote, and the articles which he published.   Respondents contend that articles published by Bergman which were critical of President Reagan, former Attorney General Evelle Younger and the F.B.I. showed that Bergman was “anti-administration,” and that the publications which carried them were “radical” or “underground.”   They argue that Bergman's previous writings demonstrated his bias and put the Examiner on notice that such bias existed.

 Inquiries into Bergman's general political affiliations and beliefs, unless clearly relevant, may violate his First Amendment right of privacy.   (N.A.A.C.P. v. Alabama (1958) 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488;  Britt v. Superior Court (1978) 20 Cal.3d 844, 143 Cal.Rptr. 695, 574 P.2d 766.)   In the context of the case before us we see no relevancy between Bergman's general political views (i.e., Democrat, Republican or other;  “left,” “right” or “middle”) and his basic honesty or integrity for news gathering or reporting.   However, if his previous writings or the particular publications for which he wrote display a bias against the police, the prosecution or law enforcement in general, the evidence of those writings and those publications becomes relevant.  (Evid.Code, § 780, subd. (f);  2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 28.6, p. 900;  Witkin, California Evidence (2d ed. 1966) § 1229 et seq.;  Herbert v. Lando, supra, 441 U.S. at p. 164, fn. 12, 99 S.Ct. at p. 1642, fn. 12.)

Our examination of the record reveals that the references to this material were few, and lacked emphasis.   The witnesses acquitted themselves well on cross-examination, and we conclude that if any error existed in admission of this material, it was harmless.

 (b) Evidentiary rulings in the Richard Lee trial.

 Appellants claim error in the exclusion of evidence concerning the evidentiary rulings made by the trial court during the Richard Lee trial.   They contend that the evidentiary rulings by the Richard Lee trial court were relevant to demonstrate that Lee did not receive a fair trial.   At the time of trial in the instant case, Lee's conviction had been affirmed on appeal and was final.   His habeas corpus petition had also been denied and was final.   Thus, the issue of whether Richard Lee had received a fair trial had already been determined as a matter of law.   Further, the “fairness” of his trial, in the abstract, was not in issue.   Appellants were perfectly free to comment about the fairness or inequities of the justice system, but they were not being sued for that reason.   The issue in the instant case was whether appellants published the libelous articles in question with actual malice.   Admission of evidence concerning rulings in the preceding criminal trial would have protracted the trial of the instant case and would have confused the jury by introducing a remote and collateral subject.   This material was irrelevant and, in any event, subject to exclusion under Evidence Code section 352.

 (c) Chinatown background.

 Appellants contend that evidence of various interviews and conversations with Chinatown youths, community leaders, police officers and social workers were erroneously excluded.   They argue that these interviews were relevant to state of mind, in that they gave them an understanding of the relationship between the authorities and the Chinese youth, insight into other criminal cases arising out of Chinatown and police corruption and “payoffs” in that community.   The trial court's exclusion of this evidence was based either on relevancy or Evidence Code section 352 grounds.   We perceive no error in the trial court's rulings.   Much of this evidence was cumulative and repetitious.   Appellants admitted they had no evidence that any of the respondents were involved in any corruption or “payoffs,” and none of this evidence corroborated or supported Porter's initial story about subornation of perjury in the Lee trial.   Any probative value such evidence would have was far outweighed by the undue consumption of time and confusion which would result from protracted litigation.  (See, e.g., Wagner v. Benson, supra, 101 Cal.App.3d at p. 36, 161 Cal.Rptr. 516.)

 (d) The Rubin Scott incident.

Rubin Scott was a fugitive wanted for the murder of a San Francisco police officer.   While at large he was arrested and held in New Orleans for a crime committed there.   McCoy and Erdelatz learned of his capture and went to New Orleans to interview him in connection with the murder of the police officer in San Francisco.   Unknown to them, a New Orleans judge had ordered that Scott not be interviewed about the New Orleans crime outside the presence of his Louisiana attorney.   Erdelatz and McCoy obtained a confession from Scott concerning the San Francisco murder, but it was later ruled inadmissible by a San Francisco judge, presumably because it violated Scott's right to counsel under the order issued by the New Orleans court.   In addition, it was alleged that Scott was physically abused by members of the New Orleans Police Department while he was in their custody.   Erdelatz and McCoy were never accused of abusing Scott, nor was it alleged that any abuse took place in their presence.   There was never any judicial finding of physical abuse and Scott himself, apparently during an unrelated proceeding in Los Angeles, denied that any such abuse took place.

 The trial court granted respondents' motion to exclude any mention of the Rubin Scott incident under Evidence Code section 352 and on the grounds of relevancy.   Appellants contend such evidence was relevant to their state of mind and its exclusion resulted in reversible error.   We disagree, rejecting again appellants' argument that there are no limitations on the evidence which they are permitted to introduce to show state of mind.   Their offer of proof failed to demonstrate that (1) respondents had any knowledge of the Louisiana court order;  (2) respondents had any reason to believe they were prohibited from interviewing Scott concerning the murder of the San Francisco police officer;  (3) respondents had knowledge that Scott was assaulted by the New Orleans police;  (4) respondents had otherwise conducted themselves improperly or unlawfully in connection with the Scott investigation.   Given Scott's later denial of any brutality by the New Orleans police, it is obvious that any probative value of this evidence is substantially outweighed by the probability that its introduction would have necessitated undue consumption of time and confused the issues.  (Evid.Code, § 352.)

 (e) The discovery sanctions.

 During the course of their investigation appellants were told by attorney Patrick Hallinan that he had filed a charge of misconduct against respondent Merle with the State Bar. Bergman and Ramirez were advised by Larry Hatfield, and Examiner reporter, that Hatfield's confidential source at the State Bar said the Bar was instituting disciplinary proceedings against Merle.   However, by the time the article containing the disciplinary story had been published, the Bar had dismissed the charges against Merle.

During discovery, Hatfield refused to reveal his State Bar source.   A motion to compel revelation of the source ultimately resulted in an order which provided that if Hatfield failed to reveal his source appellants would be precluded from introducing any evidence pertaining to its existence, but Ramirez could testify that the information he received came from Hatfield, a respected reporter upon whom he had relied in the past.

Hatfield never revealed his source, and during trial the court refused to permit Ramirez to testify about how he received the information from Hatfield or about Hatfield's reputation as a journalist with State Bar sources.   Appellants contend the sanctions were improper because Hatfield was not a party and they could not be punished for the refusal of a nonparty to respond to discovery.   This contention is meritless.

Article 1, section 2, subdivision (b) of the California Constitution and Evidence Code section 1070 prohibit contempt proceedings against publishers, editors, reporters and others for failure to reveal their sources of information.  Code of Civil Procedure section 2034 provides, in part, that if any agent or employee of any party to an action fails to provide discovery or respond to appropriate questions during his or her deposition, the court may impose reasonable sanctions or “make any orders in regard to the refusal which are just․”  The court can order, among other things, that the facts about which discovery was refused may be deemed to be established in accordance with the position of the opposing party.  (Code Civ.Proc., § 2034, subd. (b)(2)(A).)   Although Hatfield could not be compelled to reveal his source, the ruling was appropriate under these circumstances;  Hatfield was employed by the Examiner.

In addition, Ramirez testified that before he wrote the articles Hallinan advised him personally that the State Bar proceedings had been dropped.   Bergman testified that he knew Merle's case had to be reviewed by a higher State Bar committee, and that he was not certain whether Merle had “avoided sanctions at a higher level.”   Given this situation, we find no error.   Even if it was error, it is harmless.

 (f) Miscellaneous rulings.

Appellants attack other rulings excluding evidence:  (1) McCoy's view of Porter's credibility, (2) post-conviction questioning of Lee concerning an unrelated homicide, (3) Ramirez' mistake in erroneously publishing that Manning visited Porter on a second occasion, (4) the procedures within the Governor's office for removal of detainers, (5) Bergman's explanation for writing to Porter about removal of his detainer, and (6) alleged curtailment of cross-examination concerning damages.

We have already reviewed the appropriate rules of evidence and the standards of review.   The parties are familiar with the facts and the record and we find it unnecessary to set out all their contentions in detail.   It suffices to say that most of the matters complained of involved irrelevant evidence or were cumulative, subject to section 352 exclusion, or harmless.   We cannot say their admission would have resulted in a verdict for appellants, or any of them.


 Appellants next claim error due to several jury instructions concerning libel, actual malice, privileged publications and damages.   The court's duty to instruct the jury is discharged if its instructions embrace all points of law necessary to a decision.  (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335, 145 Cal.Rptr. 47.)   A party is not entitled to have the jury instructed in any particular fashion or phraseology, and may not complain if the court correctly gives the substance of the applicable law.  (Zhadan v. Downtown Los Angeles Motor Distributors, Inc. (1979) 100 Cal.App.3d 821, 839, 161 Cal.Rptr. 225;  Hyatt v. Sierra Boat Co., supra, 79 Cal.App.3d at p. 336, 145 Cal.Rptr. 47.)   Only if it appears that an error in instructions was likely to mislead the jury and thus become a factor in its verdict will error be considered prejudicial.  (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670, 117 Cal.Rptr. 1, 527 P.2d 353;  Cal. Const., art. 6, § 13.)

Appellants first contend the court erred by defining libel as a “false and unprivileged” publication and then refusing to define a privileged publication, as they requested.   We have already concluded that the question of privilege is a legal issue for the court's determination and that no privilege existed under the facts of the instant case.   Hence, no error occurred.

Second, appellants observe that the trial court did not use the term “actual malice” in defining respondents' burden of proof, but used it later when it instructed that “You cannot infer or presume actual malice solely from the fact that the publication was made.   You are instructed that negligence by a publisher is not the equivalent, nor is it sufficient to prove reckless disregard or knowing falsity on the part of [appellants].”   Appellants contend this generated confusion and requires reversal.

 We conclude that the trial court addressed the issue sufficiently.   In other instructions it advised the jury that respondents had to prove by clear and convincing evidence that appellants published the challenged statements with knowledge of their falsity or with reckless disregard of the truth.   The court also emphasized that negligence was not a sufficient basis for liability.   Appellants further argue the instruction was erroneous because it only informed the jurors they could not infer actual malice from publication, whereas they contend the jury should have been instructed it could not infer actual malice from the content of the articles.   This is a hypertechnical distinction which was unlikely to influence the jurors.   We conclude the instructions in this regard were adequate.

 Third, appellants challenge an instruction which stated:  “Reckless disregard of truth or falsity may be found, even though an affidavit was obtained from a person, if there are obvious reasons to doubt the veracity of that person or the accuracy of his affidavit, and there is no other substantial independent support for the charges in the affidavit.”   Appellants claim this instruction led the jury to believe that failure to investigate, by itself, establishes actual malice, and that it implicitly shifted the burden of proof to them.   We do not draw the same conclusion.   The language of this instruction was taken from Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 154–155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094.   Appellants contend the facts in Butts were so radically different from those in the instant case as to render the instruction erroneous here.   We again disagree, and conclude that this isolated instruction, when viewed in context, provides no cause for reversal.  (St. Amant v. Thompson, supra, 390 U.S. 727, 88 S.Ct. 1323;  Curtis Publishing Co. v. Butts, supra, 388 U.S. at pp. 156–157, 87 S.Ct. at p. 1992;  Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610;  Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d at p. 434, 142 Cal.Rptr. 304.)

Finally, appellants complain about the form of the instructions concerning actual malice, defining reckless disregard and dealing with punitive damages.   We have reviewed them in their entirety and in context with the entire package of instructions given the jury.   They contain an accurate statement of the legal issues necessary for a determination of the issues with which they are concerned.   In fact, the instruction on punitive damages actually favors appellants, since it advised the jury that the elements of punitive damages had to be proven by clear and convincing evidence, whereas a preponderance of the evidence is all that is required.  (Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1008–1009, 193 Cal.Rptr. 206;  Curtis Publishing Co. v. Butts, supra, 388 U.S. at pp. 160–161, 87 S.Ct. at p. 1994;  Cantrell v. Forest City Publishing Co. (1974) 419 U.S. 245, 251–252, 95 S.Ct. 465, 469–470, 42 L.Ed.2d 419.)


 Appellants next challenge the punitive damage awards, contending the federal and state Constitutions bar awards of punitive damages to public officials in libel cases.   They cite no controlling authority for this argument.  Civil Code section 48a, subdivision 4(c) specifically permits punitive damages in libel cases, and we are required to interpret statutes so as to uphold their constitutionality, if at all possible.   (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253, 158 Cal.Rptr. 330, 599 P.2d 636;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 229–230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   Appellants have cited none and we are unaware of any decisions of the United States or California Supreme Courts holding that the federal or state Constitution bars public officials from recovering punitive damages in libel cases.   However, numerous California and federal cases have approved or upheld such awards.   In Curtis Publishing Co. v. Butts, supra, 388 U.S. 130, 87 S.Ct. 1975, the United States Supreme Court addressed the same issue and rejected the concept that punitive damages are constitutionally prohibited in libel cases.  (See Herbert v. Lando, supra, 441 U.S. at p. 161–162, 99 S.Ct. at p. 1641.)   In Maheu v. Hughes Tool Co. (1978) 569 F.2d 459, 478–479, the Ninth Circuit, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 and other federal circuits (Goldwater v. Ginzburg (2d Cir.1969) 414 F.2d 324, cert. den., 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695;  Buckley v. Littell (2d Cir.1976) 539 F.2d 882, cert. den., 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 772;  Davis v. Schuchat (D.C. Cir.1975) 510 F.2d 731;  Appleyard v. Transamerican Press, Inc. (4th Cir.1976) 539 F.2d 1026;  cert. den., 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753), concluded that punitive damages were constitutionally permissible in public official or public figure cases.   California courts have agreed.  (Kapellas v. Kofman (1969) 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912;  Burnett v. National Enquirer, Inc., supra, 144 Cal.App.3d 991, 193 Cal.Rptr. 206;  Bindrim v. Mitchell, supra, 92 Cal.App.3d 61, 155 Cal.Rptr. 29;  Montandon v. Triangle Publications, Inc. (1975) 45 Cal.App.3d 938, 120 Cal.Rptr. 186;  Field Research Corp. v. Patrick (1973) 30 Cal.App.3d 603, 106 Cal.Rptr. 473.)   In light of existing precedent, it is clear that no constitutional impediment exists to respondents' recovery of punitive damages.

It is equally clear that once the standard for liability has been met, the assessment of punitive damages has been left to state law.  (Curtis Publishing Co. v. Butts, supra, 388 U.S. at pp. 160–161, 87 S.Ct. at p. 1994;  Cantrell v. Forest City Publishing Co., supra, 419 U.S. at pp. 251–252, 95 S.Ct. at pp. 469–470;  Hunt v. Liberty Lobby (11th Cir.1983) 720 F.2d 631, 649–651;  Maheu v. Hughes Tool Co., supra, 569 F.2d at pp. 478–480;  Burnett v. National Enquirer, Inc., supra, 144 Cal.App.3d at p. 1008, 193 Cal.Rptr. 206.)   In California, Civil Code section 48a limits the right to recover punitive damages for libel from newspapers and broadcasters by requiring the plaintiff to demand a retraction and establish “actual malice” on the part of the defendant before punitive damages may be recovered.  “Actual malice” under Civil Code section 48a is defined as “that state of mind arising from hatred or ill will toward the plaintiff,” 12 and it cannot be “inferred or presumed from the publication․”  (Id.;   Nova v. Flaherty (1956) 145 Cal.App.2d 761, 764, 303 P.2d 382.)   However, being a state of mind, it may be established by circumstantial evidence or inferred from other facts in the case.  (Evid.Code, § 600, subd. (b);  4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 304, pp. 2575–2576;  Witkin, Cal. Evidence (2d ed. 1966) § 367, pp. 326–327;  cf., Herbert v. Lando, supra, 441 U.S. at p. 164, fn. 12, 99 S.Ct. at p. 1643, fn. 12;  Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at pp. 257–258, 208 Cal.Rptr. 137, 690 P.2d 610;  Davis v. Hearst (1911) 160 Cal. 143, 179, 116 P. 530.)

Confusion inevitably results in libel cases involving public officials or figures seeking punitive damages because of the diverse uses of the terms “malice” or “actual malice,” found in federal decisions, state decisions and various statutes.  (See Manguso v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 200 Cal.Rptr. 535 and Burnett v. National Enquirer, Inc., supra, 144 Cal.App.3d 991, 193 Cal.Rptr. 206.)  “Actual malice” under the New York Times rule establishes the minimum federal constitutional test for liability, whereas “actual malice” under Civil Code section 48a sets forth the required state elements of punitive damages against newspapers.   Both tests involve the defendant's state of mind, but under New York Times the focus is on the defendant's knowledge or attitude toward the material published;  under Civil Code section 48a the focus is on the defendant's attitude toward the plaintiff.  (See Cantrell v. Forest City Publishing Co., supra, 419 U.S. at pp. 251–252, 95 S.Ct. at pp. 469–470;  Weingarten v. Block (1980) 102 Cal.App.3d 129, 144–145, 162 Cal.Rptr. 701.)

The attempt to define “malice” or “actual malice” for punitive damages purposes has haunted the courts for years.   The general subject matter has been exhaustively analyzed, criticized and commented upon and needs no repetition by us.13  It suffices to say that the courts have not been consistent with their definitions, which is understandable in this difficult area.   Part of the problem is due to the fact that the terms are used and repeated interchangeably in cases involving private as well as public figures, against defendants who are not newspaper publishers in addition to those who are, and in libel cases and general tort cases alike.

In Davis v. Hearst, supra, 160 Cal. 143, 116 P. 530, a libel case against a newspaper in which the plaintiff recovered punitive damages, the court discussed the element of malice contained in Civil Code section 3294, which at the time contained no definition of that term.14  “It should be apparent that the malice, and the only malice, contemplated by section 3294 is malice in fact, and that the phrase ‘express or implied’ has reference only to the evidence by which that malice is established;  express malice thus meaning that the malice is established by express or direct evidence going to prove the actual existence of the hatred and ill-will;  implied malice referring to the indirect evidence from which the jury may infer the existence of this malice in fact․  [I]t is only upon some showing regarded by law as adequate to establish the presence of malice in fact, that is the motive and willingness to vex, harass, annoy, or injure, that punitive damages have ever been awarded․  [T]his malice, the existence of which we have declared to be essential to a recovery in punitive damages ․ is always in its analysis the malice of the one kind, the malice of evil motive ․ since the evil motive is the controlling and essential factor which justifies such an award․”  (Davis v. Hearst, supra, at pp. 162–164, 116 P. 530.)

Davis v. Hearst, supra, continues to be cited as a basic definition of malice,15 although in 1945 Civil Code section 48a was amended to, inter alia, substitute the phrase “actual malice” for “malice” and to define it as “that state of mind arising from hatred or ill will toward the plaintiff;  ․”   The Legislature was presumably aware of the existing judicial interpretations of malice as contained in Civil Code sections 3294 and 48a, and had it intended to define the term with some lesser standard such as “wanton,” “reckless” or “gross misconduct” it was free to do so.16  “ ‘It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them.  [Citations.]’  [Citations.]”  (Estate of McDill (1975) 14 Cal.3d 831, 839, 122 Cal.Rptr. 754, 537 P.2d 874;  see also Bailey v. Superior Court (1977) 19 Cal.3d 970, 977–978, 140 Cal.Rptr. 669, 568 P.2d 394.)   Thus, the Legislature has provided a specific restrictive definition of “actual malice” for purposes of Civil Code section 48a, and also taken care that such malice has to be directed toward the plaintiff(s) 17 if punitive damages are to be awarded.18

 The record herein supports respondents' position.   The knowing publication of false criminal conduct as damaging to one's integrity and reputation as the charges in the instant case raises a legitimate inference of actual malice as defined by section 48a.  (See, e.g., Di Giorgio Fruit Corp. v. AFL–CIO (1963) 215 Cal.App.2d 560, 574, 30 Cal.Rptr. 350.)   In addition, the evidence supports the finding that Bergman knew that Porter's story was false—in fact, that it was entirely Bergman's creation.   His testimony that he did not believe the articles were harmful to respondents was not only inherently improbable, it was contradicted by Ramirez and Burkhardt.   He admitted that he knew Porter was not telling the truth about his daily meetings with Merle.   He admitted that even before he collaborated on the articles he felt that respondents were “involved in a perversion and a corruption of the criminal justice system.”   The entire record supports a finding that Bergman acted out of ill will toward respondents.   He also told Ramirez that he did not want to be identified in the articles as the one who obtained the story from Porter.   The jury had ample evidence from which it could find actual malice as defined by Civil Code section 48a.

 With regard to Ramirez and the Examiner, the record also supports a finding of actual malice under section 48a.   Ramirez admitted he was attempting in the articles to convey the impression that respondents had “framed” Richard Lee.   Like Bergman, Ramirez also admitted he did not believe all of Porter's initial affidavit.   He also reported to his editors that Porter's statement should be viewed with skepticism.   In spite of the fact that Ramirez and the Examiner knew it was important to verify Porter's claims, they were unable, in one and one-half years, to do so.   In fact, all the available data indicated Porter was not telling the truth.   They were advised that both Erdelatz and McCoy had good reputations, and were specifically told by their original informant that the State Bar was not acting on the charges made against Merle.   They knew from Bergman that Porter was told he would not receive any help toward eliminating his California detainer until he produced the favorable affidavit.   Ramirez and the Examiner executives met regularly with Bergman.   Ramirez claimed that at one point Bergman told them Porter was confused and disorganized about the events.   Bergman told them he did not want to be identified in the articles as the one who obtained the information from Porter.   Yet, neither Ramirez nor anyone else from the Examiner staff ever met with Porter or corroborated any of his statements.   They deliberately chose not to obtain a direct account of the meeting between Richard Lee and his first attorney, even though that attorney advised them that his information would not help Lee.   They knew that, following his conviction, Lee admitted to the police that Porter had testified truthfully during Lee's murder trial.

Given these circumstances the evidence supports a finding that Ramirez and the Examiner knew that Porter's statements to Bergman were false, and that they acted out of ill will toward respondents.19


 Appellants also contend the damages are excessive.  “The determination of damages is primarily a factual matter on which the inevitable wide differences of opinion do not call for the intervention of appellate courts.   [Citation.]  An appellate court, in reviewing the amount of damages, must determine every conflict in the evidence in respondent's favor and give him the benefit of every reasonable inference.  [Citation.]  An appellate court may not interfere with any award unless ‘the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.’ ” 20  (Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 241, 116 Cal.Rptr. 733;  Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 927–928, 148 Cal.Rptr. 389, 582 P.2d 980;  Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64–67, 118 Cal.Rptr. 184, 529 P.2d 608;  Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 919, 114 Cal.Rptr. 622, 523 P.2d 662.)   Furthermore, when, as in the instant case, the trial court on motion for new trial has reviewed the issue of excessive damages and has denied the motion, its decision, although not binding on us, “is to be accorded great weight because having been present at trial the trial judge was necessarily more familiar with the evidence.”  (Bertero v. National General Corp., supra, 13 Cal.3d at p. 64, 118 Cal.Rptr. 184, 529 P.2d 608;  Finney v. Lockhart (1950) 35 Cal.2d 161, 164, 217 P.2d 19;  Moranville v. Aletto, supra, 153 Cal.App.2d at pp. 672–673, 315 P.2d 91.)  “[T]he more reprehensible the act, the greater the appropriate punishment․”  (Neal v. Farmers Ins. Exchange, supra, 21 Cal.3d at p. 928, 148 Cal.Rptr. 389, 582 P.2d 980.)

We have here a situation wherein the evidence clearly and convincingly supports a finding that the affidavit of Porter which gave rise to the publication of the false charges was fabricated and encouraged by inducements to Porter of assistance in reducing his prison sentence—in short, a false charge created by a reporter for his own ulterior motives.

Each respondent testified to the shock and emotional effects they suffered as a result of the articles.   They felt the publications had irrevocably damaged their respective careers and that the effects would be with them for the remainder of their lives.   We also note that these particular charges are especially significant for persons in respondents' professions.   The destructive effect of false accusations of brutality, dishonesty and subornation of perjury on the careers of police officers and attorneys is self-evident.

 The purpose of exemplary damages is to punish the defendant:  to make an example and thereby deter others from similar conduct.   (Civ.Code, § 48a, subd. 4(c);  Gertz v. Robert Welch, Inc., supra, 418 U.S. at p. 350, 94 S.Ct. at p. 3012;  Kapellas v. Kofman, supra, 1 Cal.3d at p. 30, fn. 7, 81 Cal.Rptr. 360, 459 P.2d 912.)   In determining the amount of the award the jury may consider “ ‘․ the character of the defendant's act, the nature and extent of the harm to the plaintiff which the defendant caused or intended to cause, and the wealth of the defendant.’ ”  (Di Giorgio Fruit Corp. v. AFL–CIO, supra, 215 Cal.App.2d at pp. 580–581, 30 Cal.Rptr. 350;  Bertero v. National General Corp., supra, 13 Cal.3d at p. 65, 118 Cal.Rptr. 184, 529 P.2d 608;  Burnett v. National Enquirer, Inc., supra, 144 Cal.App.3d at pp. 1010–1011, 193 Cal.Rptr. 206.)   The aggregate exemplary damages in the instant case amounted to approximately one-half the compensatory award.   They were also adjusted significantly between the corporate defendant and the individuals, thus demonstrating the jury's awareness of the factors involved.   We must uphold an award of damages whenever possible (Bertero v. National General Corp., supra, 13 Cal.3d at p. 61, 118 Cal.Rptr. 184, 529 P.2d 608) and “[t]he fixing of such damages has long been vested in the sound discretion of the trier of fact․”  (Id., at p. 64, 118 Cal.Rptr. 184, 529 P.2d 608.)

In conclusion, we note that this unique record presents a textbook case of libel.   It is a rare situation involving a fabrication of false charges which we assume does not recur with any frequency.   We emphasize that the evidence does not establish and we do not imply that appellants Ramirez or the Examiner fabricated the Porter statement.   The evidence does establish that they knew it to be false.

The judgment is affirmed.



Wednesday, May 19, 1976 

How lies sent youth to prison for murder

Curious conviction in Chinatown trialBy Raul Ramirez©1976, San Francisco Examiner

On Nov. 1, 1972, Richard W. Lee, 19, was convicted of first-degree murder in what San Francisco authorities hailed as a major breakthrough in their attack on Chinese youth gangs.

Now, 3 1/212 years later, an Examiner investigation has uncovered evidence that he was convicted on the basis of perjured and misleading testimony exacted by a prosecution that badly needed a conviction.

Lee is serving a life sentence at Deuel Vocational Institution in Tracy.

His conviction by a jury came after a series of widely publicized shootings that prompted then-Mayor Joseph Alioto to declare that the streets of Chinatown were nevertheless “the safest place in town for tourists and Caucasians.”   The mayor asked for immediate police action to make them safe for Chinese.

Lee's trial had unfolded in a city shaken by a succession of spectacular slayings among young Chinese and a degree of alarm echoed by the highest law-enforcement authorities in California.   On the morning 12 jurors retired to decide Lee's fate, Bay Area newspapers quoted state Atty. Gen. Evelle Younger as telling a press conference in Sacramento:

“Chinese gangs are fast becoming serious threats in the state and other parts of the country in cities and towns having Chinese communities.”

In San Francisco, where a string of more than a dozen killings spanning a two-year period had baffled police and frightened many in The City's growing Chinese community, a conviction was viewed as a significant accomplishment.   The guilty verdict in Richard Lee's trial was hailed as such in press reports.

The peculiar circumstances surrounding the Lee case, documented by the Examiner during a lengthy investigation, include:

• The testimony of a cellmate that Lee had confessed to the killing and boasted of his gang connections while awaiting trial.   The cellmate, in a sworn statement obtained by the Examiner, says now that his testimony was fabricated by Lee's prosecutor.   He says he was induced to testify under threats of violence and promises of leniency.

• The identification of Lee as the killer by a witness to the slaying.   That witness, a 16-year-old girl, now swears she was never sure of the killer's identity but was rebuffed by prosecutors and police when she told them so.   She says she agreed to testify against Lee only after being falsely assured that 11 other witnesses had also identified Lee.   In fact, she and the cellmate were the two main pillars in the prosecution case.

• The assertion of another young witness, once a prime suspect in the slaying who was not prosecuted, that the killer was not Richard Lee.

(The San Francisco police homicide inspector who investigated Poole Yig Leong's killing declined to discuss the case.   Pierre Merle, the prosecutor who obtained Lee's conviction, who is now employed by a New York investment firm, did not respond to several telephone requests to discuss the case with the Examiner.

Lee's conviction closed the file on the shooting death of Poole Leong, 22, a Hong Kong-born man who the state claimed was a key member of a gang at war with Lee and friends.

On June 13, 1972, Leong was standing outside a housing project apartment at 895 Pacific Ave.   According to police reports and eyewitness testimony, Leong was shot while talking on a phone passed out of an apartment window at his request for an impromptu talk with a girlfriend.

Within hours after the shooting, the discrepancies surrounding the Lee case began unfolding:

According to a police report prepared that night, “Suspect No. 1,” the gunman, was a “Chinese male, 14–15 years, 5'3”, skinny build, straight black collar-length hair.”   Richard Lee, a bank teller who was arrested 14 days later, was 19 years old at the time, 5'8”, medium build.   His hair was black and straight.


The prosecution version of what happened that summer night, and of the events leading to the shooting, was outlined during Lee's five-day trial before San Francisco Superior Court Judge Walter Calcagno four months later.   The scenario was dramatic, yet simple:

Richard Lee, police intelligence officer Diarmuid Philpott testified, was a member of a gang of hoodlums headed by his close friend, Joe Fong.   Fong's group and another youth gang, the Wah Chings (Young Chinese) were involved in a struggle for power and territory in which many had already died, Philpott told the jury.

The immediate motive for Leong's murder was described as retaliation for an attempted kidnapping of Fong's younger brother.

On the morning of the killing, Chung Way Fong, then 15, had been threatened by several youths affiliated with his brother's rivals, the Wah Chings.   His assailants had approached him aboard a Muni bus headed for Marina Junior High School.   They had shown him the handle of a gun protruding from someone's belt and asked for Joe Fong's whereabouts.

Then, they had pointed to a car driving in the opposite direction and told him it was Leong's.   They ordered him to follow them off the bus and into the car.   The young Fong eluded the youngsters as they left the bus.   He told the bus driver, who reported the incident to Muni.   The youth, later that morning, also reported the incident to school officials and police.

Prosecutor Pierre Merle theorized at Lee's trial that Leong's murder had been ordered after Chung Way Fong told his older brother of the incident early that evening.


Shortly after 10 p.m. that same night, Poole Leong strolled down Pacific Avenue and rapped on a ground floor window of apartment 31 at 895 Pacific, one of the buildings in the huge Ping Yuen federal public housing project.

A 16-year-old girl came to the window and the two talked briefly.   Leong then asked to speak with another girl and his friend dialed a number and handed him the telephone through the window.   She walked back to join her younger sister and a neighbor.   Her sister slept nearby on a living room couch.

The girl's 13-year-old brother stepped out of the small apartment and joined Leong outside.   The youngster sat on a wooden bench alongside the building while Leong stood next to the window, his back to a small patio area.   The sunken patio was separated from the Pacific Avenue sidewalk by a hedge and wall.   To reach the area, it was necessary to step down from a platform adjoining the sidewalk.

What happened next, at about 10:20 p.m. June 13, 1972, was described by the girl's brother:

Leong had been on the phone for about five minutes when “two guys came up from behind him and he turned around,” the boy told homicide inspectors Frank McCoy and Edward Erdelatz two hours later.

The youngster identified one of the two, the one not carrying a gun, as Weyman Tso, then 16.   Tso's grandparents lived across Pacific Avenue in another public housing project building.   He had been involved in fights with the young witness and they knew each other well.

(In a statement obtained by the Examiner, Tso claims to have walked upon the shooting unaware of what was happening.   Frightened, he went into hiding immediately after the incident and did not surface until he turned himself into police eight months later, after Lee's trial.   He says Richard Lee, whom he knows well, was not the killer and that he did not recognize the gunman.)

In a taped interview with police, the girl's brother said he greeted Tso when the two youths walked up.   He did not recognize the gunman, he said.   Then, several shots rang out.

The youngster said he pulled his coat over his head as shots were fired.   After the shooting was over he looked up and saw the two youths run away in the direction of another Ping Yuen project building, a highrise across Pacific Avenue.   Several breezeways on that building's ground floor provide easy passage to Broadway's busy neon-lit strip.

At Central District police station on the fringes of Chinatown, the young witness later examined more than 100 pictures of youths whom police believed to be connected with gangs.   Richard Lee's picture was among them.   He did not pick it out.   He did identify a picture of Tso.


When the shots were fired, the girl who had given Leong the phone thought they were firecrackers.   Then she looked out the window and saw “two guys” standing outside for a split second.   One held a gun in his right hand.   She recognized the other one as Weyman Tso, a fact she promptly told police.

She told investigating officers McCoy and Erdelatz that she had taken “just one look” at the gunman, who looked like someone she had seen “a couple of years ago in Chinatown.”

After a brief interview with the officers, she was asked to look at the photographs on file.

Her description of the gunman differed slightly from her brother's:  She described him as a Chinese person in his early 20s, about 5 feet 6 inches tall—a “thin” man.   Her brother described a man 5 feet 3, 14 to 15 years old.   Police reports prepared that evening carried his description of the killer.

At 1:25 a.m. on June 14, three hours after Poole Leong was gunned down, her voice was recorded in still another talk with inspectors McCoy and Erdelatz.

Sounding tired and confused, she estimated the number of pictures she had looked at as about “6,000.”   The officers corrected her and she agreed that there were at least 100.

Softly, she said the man whose picture she had picked out was the man who had shot Poole Leong.   It was Richard Lee.

For the next two weeks, Richard Lee reported to work as normal at the Civic Center branch of the Wells Fargo Bank.   Although a warrant for his arrest was issued on June 16, it was not until 11 days later, in the early morning hours of June 27, that he was arrested after a car in which he was a passenger was stopped for a traffic violation.

Two weeks later, on July 13, 1972, the girl testified at a preliminary hearing on the case.   She seemed much less sure of the identity of the killer.

Asst. Dist. Atty. Martin Harband asked her about a police lineup the prior day, when she had identified Richard Lee as the man whose picture she had pointed out the evening of the murder:

Q. Did you pick someone out yesterday?

A. Yes.

Q. Who did you pick?

A. I say it looks like him.

At this hearing, the girl's uncertainty was clear.   Unlike prosecutor Merle, Harband handled the preliminary hearing with no attempt to push her:

Q. ․ did you pick Richard Lee yesterday?

A. I said it looks like him.

Q. It looks like who?

A. Richard Lee.

Q. O.K.   Did you pick him out because he was the one you saw with the gun on June 13?

A. I said I am not sure.

Q. What are you sure about ․?

A. I already told you.

The Judge.   Try to repeat.

A. Like I feel guilty if I put the wrong person in.

Q. ․ did you see the face of the man who was holding the gun?

A. No.   Not exactly ․ It looks like the picture I picked out but then I say I'm not sure.

Harband explored the subject of fear, one that the prosecution was to return to time and again in seeking to explain the girl's reluctant testimony.   She had told police the night of the murder that she was frightened.   Harband asked her to explain, and she responded:

“That night, I don't know.   Like that night I was scared and everything and I was nervous, so, like I said, that night I remember what, but like I say, after I thought it over it doesn't seem to me like the same person when I tried to imagine him.   That is what I told you.”

Fear would become the central thrust of the prosecution's case against Richard Lee.   From the outset, it sought to portray Lee as an awe-inspiring gangster whose self-assurance came from knowing that fear would silence prospective witnesses.

Several attempts were made to impress the jury with this aura of fear during Lee's trial.

At one point, the girl was questioned about fears of retaliation.   A point was made that, after the shooting, a police watch of her home had been instituted at her parents' request.

This police concern was odd.   The department stationed a police car outside her home for several weeks, day and night.   But police did not provide any further protection while she went to school and moved freely, alone, about Chinatown.

No explanation was ever given as to why she and her brother would hesitate to identify Richard Lee, who was incarcerated, and not the other suspect, who was still at large and presumably in a better position to carry out any revenge plans.

In a recent interview, the girl described how she picked out Richard Lee's picture the night of the murder:

“I went through a number of them (pictures).   Then there were a couple of pictures, I say, uh, it could be him, or it could be him ․ I told them, well I wanted to go home badly but they said that I have to wait until I picked someone.   I felt that I can't leave that room unless I find someone․”

After returning home in the early morning hours, she lay in bed, unable to sleep:

“I was thinking, trying to think of what happened.   I think of that picture and the guy that I picked out and I keep thinking, I go, no, God, what am I doing?  ․ That wasn't him I picked out.   I didn't really get to look at the guy that did the shooting.”

When, later, she told police of her second thoughts, she was rebuffed:  “They asked me, is it because I got a phone call or someone threatened me or this and that and that is why I changed my mind ․ I told them no.   I didn't get no phone call” she said.

The inspectors sought to reassure her, the girl says:

“They said that there were 11 other witnesses, and I thought that what I had to say wasn't that important because I was a minor and there are 11 other witnesses, so I thought it was so that they told me that ․ I think, oh well, if there are 11 other people, witnesses, it must be him.   Then what I've got to say isn't important.”

Noting that prosecutor Harband accepted her statements at the pre-trial hearing with no attempt at channeling her testimony, she added:  “Then (later on) the second guy (Pierre) Merle, told me he was pretty rough.   He was yelling at me ․ He was pretty mean ․ He got very angry at me and I became very frightened of him.

“What I think is that he was angry at me because I was changing my story,” she said.

At the lineup, she said, she balked at picking out the shooting suspect because “I'm not even sure it's him.”

“And they go, ‘OK, pick out the guy in the picture.’

“Therefore when I looked at the people in the lineup I picked out Richard Lee because it was he that I recognized as being the person whose picture I had picked out.   That was easy to do because the five other persons in the lineup all looked different from Richard Lee, who was the shortest of the group.”

The Lee trial experience, and the discovery afterward that she had been misled, has embittered her, she says.

“I thought police are very helpful and nice ․ I try to be helpful to them ․ But later on I don't think they are nice any more ․ they lied to me.   That's what I don't like.   I thought police couldn't lie and everything.   Then another thing is that for someone to want to talk to they were, they were pretty mean.”

She asked the Examiner to withhold her name, because, she said, she is embarrassed about having helped convict Lee in such a way.


San Francisco attorney Roger Ruffin who recently agreed to represent Lee, is using the girl's statements and other information uncovered in the Examiner investigation and elsewhere, and is preparing a writ of habeas corpus he expects to file on Lee's behalf in a few days in an attempt to obtain judicial review of the young man's case.

Ruffin, a former Superior Court judge in San Diego, says his review of the Lee case indicates he was wrongfully convicted:

“In my view, Richard Lee was victim of community hysteria regarding Chinatown's so-called Chinese youth gangs,” Ruffin said.

The week preceeding Richard Lee's trial, attorney Patrick Coyle, the young lawyer assigned by the firm of James Martin MacInnis to defend Richard Lee, retired to a family mountain cabin.   He now recalls he “ate good food, didn't drink, just getting ready” for the trial, which he though was still 10 days away.

Coyle felt confident that the trial would result in Lee's acquittal.   The prosecution's case, as outlined to him in discovery proceedings, rested mainly on the girl, a reluctant witness whose identification of Richard Lee was weakened by her own concern about putting the wrong person in prison.

The rest of the case against Richard Lee, he felt, was based on inneundo and guilt-by-association testimony from police officials.

Coyle returned to San Francisco the weekend of Oct. 22.   The trial, he though, was still a week away, set for Oct. 30.   On Oct. 24, he wandered into the Hall of Justice to check up on another case and found, to his surprise, that the case of the People vs. Richard Lee had been rescheduled—for that day.

A message telling him of the change had been telephoned to his office the prior Friday.   Patrick Coyle had not been in his office.

Although thrown off balance by this change, Coyle remained confident.

But he did not know that a new character waited in the wings, where he had been secretly primed and kept by Asst. Dist. Atty. Merle and Inspectors McCoy and Erdelatz.

That character was a most unlikely one, a surprise witness whose testimony proved devastating to Lee's case.

TOMORROW:  The trial.

The Examiner inquiry into the Richard Lee case was made with the collaboration of Lowell Bergman, a free-lance investigative reporter aided by a grant from the Fund for Investigative Journalism of Washington, D.C.

D.A. promises ‘full cooperation’

San Francisco Dist. Atty. Joseph Freitas says he will “fully cooperate” in any attempt to determine “through the established process” whether Richard W. Lee was wrongfully convicted in a 1972 Chinatown murder case.

Freitas' statement came after San Francisco attorney Roger Ruffin, a former San Diego Superior Court judge, said he would seek a court review of the Lee case.

The district attorney was briefed by The Examiner last week about the content of a series of stories about the Lee case beginning in today's editions of the paper.

The stories include allegations that a former assistant to then-Dist. Atty. John Ferdon pressured one witness into giving misleading testimony and fabricated the testimony of another.

Freitas said his staff is reviewing the contents of his office's files in the Lee case, but has found no irregularities.   He acknowledged that it would be highly unlikely that anyone committing improper actions would allow them to be reflected in official files.

“We will fully cooperate with the court in determining what the truth is,” he said.  “This office has an interest in seeing that justice was or will be done in this case.”

Freitas vowed he would take legal or administrative action against present or past members of his office or of the police department who his investigation shows acted improperly or illegally.

The Examiner stories include allegations from two key witnesses who say they were pressured by former prosecutor Pierre Merle and police to give misleading or false testimony.

Merle, now an investment firm's lawyer in New York, did not respond to repeated requests to discuss the case.

Frank McCoy, a police homicide inspector who handled the Lee case, declined to talk about it with the Examiner.   He said the trial transcript should “reflect on the facts of the case.”

“There is no reason to get together,” he told a reporter.  “The case went to a jury before a competent judge.   The proper way of handling it is to take it to the district attorney's office.”

McCoy, whom other law enforcement people described as a well-respected investigator, said he knew “where these things (allegations) are coming from—from his brother.”

Lee's brother, William, had protested the conviction shortly after the 1972 trial.

The Examiner stories, however, are based on an independent investigation and on interviews with witnesses and others close to the case.



Thursday, May 20, 1976 

Chinatown murder:  Witness recants

By Raul Ramirez© 1976 San Francisco Examiner

A surprise awaited Richard W. Lee on Oct. 24, 1972, when he went on trial in San Francisco on charges that he killed another young man in a Chinatown gang assassination.

Lee, a 19-year-old bank teller, was accused of shooting Poole Yig Leong, 22, in what police said was retaliation for an attempted kidnaping of a gang leader's brother.

Until his five-day trial began before Superior Court Judge Walter Calcagno, the case against Lee seemed hollow.

It consisted of testimony from policemen who said Lee was a member of a youth gang dubbed the “Joe Fong gang” and would have had reason to kill Leong, whom they identified as a member of the rival “Wah Ching gang.”

The sole evidence linking Lee to the killing was the hesitant identification of him as the gunman by a teenaged girl who initially said the killer “looks like” Lee.

But in the trial's opening session, Asst. Dist. Atty. Pierre Merle revealed that he would have another witness—a man who had been quietly primed for months by him and police homicide inspectors.

That man's testimony was to be crucial in Lee's conviction of first-degree murder five days later.

He was Thomas Porter Jr., also known as John Henry, a young black man from the Midwest then facing a desperate legal situation of his own.   He would testify that Lee had confessed to Leong's murder during intimate talks while the two shared a cell in the San Francisco County Jail.

Porter's testimony also was used to explain the absence of other substantive evidence and the reluctance of an eyewitness to identify Lee positively as the killer.

Testifying for several hours, Porter described Lee as a cocky gang hit-man unafraid of conviction because his gang would scare away witnesses.

Porter claimed to know Swahili and Cantonese.   He boasted of his familiarity with Chinatowns in San Francisco and Chicago and of having gained Lee's confidence.

Porter is now serving time at a federal penitentiary for an auto theft conviction that preceded his San Francisco stint.   He is no longer under the jurisdiction of the city's district attorney's office.

In a sworn statement obtained by the Examiner, Porter now repudiates his testimony at the Lee trial.   He says it was fabricated by prosecutor Merle and that he agreed to perjure himself only after he was threatened by police.

Porter's statement, coupled with the assertion of the key prosecution “identification” witness—the teenaged girl—that her testimony was colored by false statements told her by police, puts in question the manner in which the People of California obtained Richard Lee's conviction.

Lee's trial was staged at a time when a long string of unresolved killings among Chinese youths received strident media coverage and was the focus of concern among city officials.   Some worried that reports of violence would affect tourism.

Police were baffled and embarrassed by youth violence.   Fist fights had inexorably escalated into premediated (sic) killings, and all police could do was cite nefarious codes of silence and describe the inability of white officers to penetrate the Chinese community.

Then came the evening of June 13, 1972.

Poole Yig Leong, an unemployed man who hung around with immigrant Chinese youngsters, was gunned down as he spoke on a telephone that had been passed out an apartment window at his request in a Chinatown housing project building at 895 Pacific St.

Of the three persons who saw the killer, only one, a 16-year-old girl, tentatively identified Lee as the gunman.   The girl's brother claimed he had not seen the killer's face.   A third witness, a young man once considered a prime suspect in the incident, after the trial turned himself into police and was released without being charged.   He says Lee was not the killer.

The girl's identification was hesitant.   She says she was never sure that Lee was indeed the man she saw with the gun that night, but that she picked out his picture from a police file because Lee “looked like him” and because she thought she would be required to pick out a photograph before being allowed to go home.

But police to whom the girl had confided the night of the murder that she feared Chinatown's “gangs,” interpreted her hesitancy as fear of retaliation if she testified against Lee.   They dismissed her protests that she wasn't sure whether Lee was the killer.

Later, when investigating officers learned that the 15-year-old brother of youth gang figure Joe Fong had been threatened by several Wah Ching toughs on a Muni bus the morning of Leong's murder, they concluded that they had found a motive for the slaying.

Police theorized that Leong was killed in retaliation for that incident.   Lee's name fit into that scenario, for Chinatown police knew Richard Lee as a friend of Joe Fong.

Lee was arrested two weeks later when, late one night, a car driven by Fong was stopped for a traffic check.   Although Lee had reported to work each day at the Civic Center branch of the Wells Fargo Bank, where he had worked for nearly a year, police had not located him until the morning of June 27, 1972.

Earlier that night, Chinatown youth worker Barry Fong Torres had been murdered in still another highly-publicized slaying.   Police hinted—and San Francisco's newspapers dutifully reported—that Lee's arrest may have solved that murder.  (The Fong Torres killing, however, remains unsolved.)

Richard Lee and Thomas Porter met shortly after Lee's arrest.   The two became acquainted when Porter came to Lee's aid at the San Francisco City Jail when a deranged prisoner seemed about to jump on the Chinese youth.

Porter was to testify later, that this incident spawned an unlikely friendship, which resulted in Lee confiding that he had killed Poole Leong, that he had played key roles in other Chinatown murders and that he was a member of a gang which would silence any prospective witnesses.

A few days after Lee and Porter met, Lee was transferred to the county jail one floor higher in the Hall of Justice complex at 850 Bryant St.   He had been unable to post the $100,000 bail set by Judge Claude Perasso at a preliminary hearing.

Porter, then 21, had been apprehended in San Bernardino with his girlfriend shortly after commandeering a taxicab and its driver in San Francisco.

In and out of jail since he was 16, Porter faced four major felony charges:  robbery, assault with a deadly weapon, kidnapping and manufacturing prohibited weapons for sale.

His situation was desperate.   Far from his native Oklahoma, he was wanted by federal authorities for escaping from El Reno Federal Penitentiary there, where he had been serving a sentence for auto theft.   A combination of the California and federal penalties could have put him away for life.

Then, he was assigned to the cell at the city jail with Richard Lee.   A few weeks later, after Lee had been taken upstairs to the county jail, Porter joined him there—again in the same cell.   The two shared a 10-by-12-foot living area with 10 other men through the summer and early fall of 1972.

During those months, Porter testified later, they became friends—the San Francisco-born young Chinese-American and the black man from Oklahoma.

As early as August, 1972, Porter had developed other acquaintances, whom he saw repeatedly.   They were prosecutor Merle and homicide inspectors Frank McCoy and Edward Erdelatz.   In a series of meetings in the Hall of Justice complex, they assembled the prosecution's master stroke against Richard Lee.

Richard Lee was a shaken young man when he was ordered to stand trial for the murder of Poole Yig Leong.   A July preliminary hearing had surprised him.   He had expected to see the charges against him dropped because he believed his arrest to have resulted from mistaken identification or from what he viewed as routine police harassment of Chinese youths.

Shocked by the high bail, he became wary of everyone.   Several of his cellmates testified that he was uncommunicative.   Even his lawyer, Patrick Coyle, remembers him as “paranoid,” reluctant to discuss any aspects of his life in the county jail's interview rooms because he believed he was the victim of a conspiracy.

It was this attitude that made Porter's testimony that much more incongruous to Coyle when it came at the trial.

Coyle scored a point or two by bringing other cellmates to the witness stand to testify about how Porter had told them they could get lenient sentences if they “cooperated” with prosecutors and helped police put together cases against others.   None had heard Lee discuss his case with Porter or with anyone else.

(Lee says his stock answer whenever asked by his cellmates, including Porter, about the charges against him was, “That's what they say.   That's what they say.”)

Coyle's request at the trial that an interpreter be summoned to test Porter's purported fluency in Cantonese was denied by Judge Calcagno.

Porter's testimony was devastating.   After befriending Lee, he said on the witness stand, the young man confessed to the murder, told him he had buried the murder gun and that members of his gang had dug it up after his arrest, broken it up into pieces and thrown it into “lakes” around San Francisco.

He testified that Lee had repeatedly boasted about his gang affiliations and the strength of their influence.

Porter told the jury he had voluntarily sought out police agents after Lee's disclosures.   He declared he had not been threatened by anyone or offered leniency by police or prosecutors.   To buttress his testimony, prosecutor Merle introduced as evidence a piece of paper on which Lee had written the name of Joe Fong's brother, Kit Fong, and a telephone number.

Porter testified that Lee had given him Fong's name and number as a possible contact if he wanted to buy weapons when he left jail.

(Lee says Porter had asked him for the name of someone who could help him find a job if he got out of jail.   Fong, then counselor at a San Francisco youth program, was a logical choice, he says.)

Porter's startling testimony overshadowed the uneasy, shaky identification by the teenaged girl.   It even helped explain her hesitation.

Porter's declarations were augmented by the testimony of Terry Sullivan, the policeman who headed the Police Activities League's youth hall in Chinatown, and Sgt. Diarmuid Philpott, whom Merle introduced as an expert on Chinatown youth.

Philpott, a long-time Chinatown policeman who is now in the department's intelligence squad, testified that Lee was a “right hand” lieutenant of Joe Fong.   He described Leong as a high ranking cohort of Wah Ching leaders.

Sullivan testified that he had once seen Lee at a gun firing range, where the officer had taken other Chinatown youngsters for target practice.   Lee was holding a handgun, Sullivan testified.   He did not say (and was not asked) that many Chinatown youths visited the gun range regularly as guests of police.

At 9:30 a.m. (Nov. 1, 1972) the seven women and five men who were to decide Richard Lee's guilt or innocence retired to deliberate.   Six and a half hours later, their verdict was in:  Guilty, first degree murder.   Twenty-one days after that Lee was sentenced to life in prison.

The day after Lee's conviction, San Francisco's newspapers reported unnamed police officials hailed the jury's judgment as a breakthrough—the first conviction in a Chinatown youth gang warfare case.

TOMORROW:  The “case” against Richard Lee breaks down.



Friday, May 21, 1976 

juror's anguish:  He wept as he voted guilty

When he voted to convict Richard W. Lee of first-degree murder three and a half years ago, Ivan Wright cried.

“It broke me up,” he recalls now.  “I cried like hell when I had to give this verdict.”

His sorrow, Wright said, came from a nagging “emotional” doubt that Lee may not have been the man who killed Poole Yig Leong on the evening of June 13, 1972.

Lee was sentenced to life imprisonment for the killing, which police attributed to Chinatown youth gang warfare.

Wright, a retired hotel deskman and auditor, said he was bothered first by the testimony of a cellmate who claimed that Lee had confessed to the murder while awaiting trial.

“I knew that he was full of baloney,” Wright said.  “I don't think anybody paid attention to his testimony.   He was in the slammer.   He had reason to give a story.”

Then, Wright added, there was the testimony from an eyewitness to Leong's killing, who hesitantly said that Lee was the man who shot Poole Leong.

“I had my doubts and a couple others (jurors) did,” Wright said.  “Neither attorney (defense or prosecution) ever said to that girl, ‘Is the man who did the shooting in this courtroom right now?’   I had mixed feelings, feelings that have always haunted me since then.”

Wednesday, when Wright read an Examiner report of how both the cellmate and the young eyewitness, a 16-year-old girl at the time of the trial, now say they tailored their testimony to suit the prosecution because of pressure from authorities, he cried again.

“My conscience is killing me,” he said in a telephone call to the Examiner.

“When we first went to deliberate, I wrote a question mark on the first ballot.   That girl ․ I didn't exactly believe her ․ but when they read it back in the transcript (at his request) it sounded pretty good when written down.   I had my emotional doubts.   I'm even more heart-broken now,” he said.

He said a majority of the jurors had been in favor of conviction from the outset, but he and a few others held out.

“I had a sixth sense that that wasn't right.   She had answered so vaguely (when asked to identify Lee as the killer).   And where do you separate reason from emotion?”

Finally, after several hours of debate, Wright agreed to a guilty verdict.

“I had to go along with the verdict finally,” he said.  “The instructions from the judge on reasonable doubt were to decide the case on the factual information.   But it bothered me.”

“I was sad, to come to a verdict like that.   Had it been a capital case I couldn't have, I never would have voted for a conviction.

“That's why I am against capital punishment.   God, if we ever make a mistake, how are we going to rectify it?” he asked.

The Examiner's report of how the two key witnesses admit to having given false or misleading testimony troubled him, Wright said.

“I'm all for law and order, but, my God, this is not law and order,” he said.

“We might have law and order, but not by putting innocent people in jail,” he said.

Chinatown Murder

How witness was coercedBy Raul Ramirez© 1976 San Francisco Examiner

“I falsely testified in The People v. Richard Lee.”

With this opening, Thomas Porter Jr., the man whose testimony may have sealed the murder conviction of Richard W. Lee three years ago, swears now that he lied to keep the young Chinese-American behind bars.

Porter, now a federal prisoner, claims he lied because of police threats against him and his girlfriend.

On Nov. 1, 1972, Richard Lee, then 19, a San Francisco bank teller, became the first person convicted of murder in a wave Chinatown youth gang killings.

Porter's admission that he lied as a witness, along with other information obtained by The Examiner during an investigation into the Lee case, indicates that the young man was convicted on the strength of misleading and perjured testimony.

Porter's testimony, which he now repudiates, was the cornerstone of an otherwise weak prosecution case:  He testified that Lee had confessed to the murder while the two shared a cell in the San Francisco County Jail while awaiting their respective trials.

Porter's assertion that Lee had boasted of his gang connections and of how they would scare away witnesses helped explain the absence of other substantial witnesses.   The jury apparently believed him.

Porter says now:

“The truth is that Richard Lee never told me any such thing, nor did he ever say anything to me or in my presence about any murder or any crime, other than to say what he was charged with by way of explaining why he was in jail,” Porter declares in a sworn statement given from a federal penitentiary.

Several weeks after he met Lee at the San Francisco City Jail in July, 1972, Porter says, he was summoned by a robbery detail police officer to the department's homicide squad.

An escaper from a federal penitentiary at the time, Porter faced kidnaping, robbery and assault charges in connection with an abduction of a San Francisco taxicab driver.

The officer and others alluded to additional charges that could be filed against Porter, then talked about Richard Lee, Porter claims in his affidavit.

“They said they knew he was in the same tank as I was and that they had purposely had me and him put in the same tank because they wanted information from Lee,” Porter says.  “They said they wanted something to convict Lee of murdering a Chinese man ․”

Lee was awaiting trial on charges that he had killed a 22-year-old Chinese man in retaliation for the attempted kidnaping of the brother of a gang boss.

After the initial meeting, Porter said, he was taken to several sessions with Pierre Merle, the assistant district attorney prosecuting Lee, and with police homicide inspectors.

“When I first met with Merle he gave me a written story that he told me to learn so that I could give it as testimony against Richard Lee,” he said.  “Mr. Merle had me recite the story for him over and over and he told me how I should testify.   Mr. Merle always took the written story back from me at the end of the meetings.

“My lawyer, Cyril Weeks of the public defender's office, was never present for these meetings, but he knew of them.”  (Weeks, in a recent interview, said he remembered little about Porter's case, but recalled knowing that Porter held several meetings with police officials.)

Porter adds:  “I agreed to give the false story that Pierre Merle gave me at Richard Lee's trial because of threats and promises made to me by Officer (police homicide inspector Frank) McCoy and his partner.   They repeatedly promised me that if I gave the story prepared for me ․ I would not have to serve any time in California.

“They promised me that the woman I loved ․ who, pregnant, was being held in jail on the same charges ․ would be set free after a brief period of observation.

“When I refused to go along with the story that had been prepared for me to give as testimony ․ despite the promises ․ Officer McCoy and his partner, a blond man, 29–30 years old, of medium build, threatened me with bodily harm and death.   McCoy and his partner took me on an elevator not far from homicide and McCoy's partner drew his revolver and said that I would testify or my people would never see me again ․ McCoy's partner then hit me behind and below my ear, causing it to swell but leaving no mark.

“I did not agree to give the false testimony that had been made up for me against Richard Lee until my life was threatened ․”


Former prosecutor Merle did not respond to telephone requests from The Examiner to discuss the Lee case.   McCoy declined to discuss the case because, he said, it was decided by a jury “before a competent judge.”   He suggested that allegations of misconduct, if any, be taken to the district attorney's office.

Dist. Atty. Joseph Freitas, apprised of the content of Examiner stories concerning the case, said he would review his office files and promised to cooperate fully in a judicial review.   San Francisco attorney Roger Ruffin, a former San Diego Superior Court judge who now represents Lee, says he will soon seek such a review.


Not long after Lee's conviction, Porter was convicted of armed robbery in San Francisco.   He was sentenced to five years to life after authorities noted that he had cooperated in Lee's case.   His term was to run concurrent with his federal sentences for auto theft and escape.


1.   The articles are appended hereto in chronological order as Appendices A through C, inclusive.

2.   A detainer is a hold placed on a prisoner serving a sentence in another state or in a federal prison, for the purpose of securing the prisoner's return to the detaining state upon his release.   In this case Porter was being detained to serve an additional sentence imposed by California.

3.   Civil Code section 48a states, in relevant part:  “In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided.   Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected.   Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.  [¶]  If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages;  provided that no exemplary damages may be recovered unless the plaintiff shall prove that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast․”

4.   On appeal, appellants do not suggest that the publications are not damaging to respondents' reputations.   However, they were inconsistent in their position below.   Both Bergman and Reginald Murphy, editor and publisher of the Examiner, testified that in their opinion the articles did not defame nor damage respondents.   Ramirez admitted that the publications were damaging.   William Burkhardt, the city editor, testified he recognized the libelous nature of the articles and for that reason had them reviewed by the managing editor and the Examiner's attorneys prior to publication.   The record does not contain the attorneys' response.   Bergman has a B.A. degree, three years of graduate study and at the time of trial had ten years experience as a journalist;  his testimony that he did not recognize the damaging and destructive nature of the articles is extraordinary.

5.   The editorial in question was published three days after receiving the demands for retraction.

6.   We do not imply that investigative journalism should be curtailed nor in any manner discouraged.   To the contrary, a free press may be society's only effective watchdog over governmental conduct and other activities affecting the public interest.  (See, e.g., New York Times Co. v. Sullivan, supra, 376 U.S. at pp. 270–271, 84 S.Ct. at pp. 720–721;  Douglas, The Right of the People (Arena ed. 1972).)   However, a clear and necessary distinction exists between the discovery of news and its creation.   The jury obviously determined that the “facts” in the initial Porter affidavit were created, rather than discovered through legitimate investigation.

7.   Porter claimed to have told his father, his sister and a jail chaplain about the respondents' conduct.   His father was deceased;  the one occasion when appellants attempted to contact his sister she would not talk to them, and the existence of the chaplain could never be verified.

8.   In light of appellants' stated belief that Richard Lee was factually innocent and “framed” for Leong's murder, there are some other obvious areas of investigation they failed to pursue.   For instance, Richard Lee did not testify during his trial.   Thus, he has never denied, under oath, killing Leong, nor has he denied the accuracy of Porter's trial testimony.   To the contrary, he subsequently admitted to the police that Porter's testimony during his trial was truthful.  (Neither did he do so during his habeas corpus proceeding.   His testimony therein was limited solely to the fact that he had no knowledge of any promises made to Porter in exchange for his trial testimony.)   Appellants also claim that proof of Lee's innocence was confirmed by the fact that he had a number of alibi witnesses.   However, none of them were called to testify during his trial.   Appellants interviewed them, as well as Lee's trial attorney, but failed to ask anyone why they were not called to testify during the Lee trial, or why they were not being used during the habeas corpus proceeding.   Nor has anyone ever asked why Lee himself never testified to deny the murder or deny his confession to Porter.   These are obvious areas of inquiry for anyone interested in determining Lee's factual innocence.

9.   In his affidavit Porter claimed to have met with Merle over 30 times prior to trial for the purpose of memorizing the “script” of his trial testimony which Merle had allegedly prepared.   Bergman and Ramirez both admitted they did not believe this many meetings took place.   However, what they actually believed or did not believe was a question for the jury, and a legitimate inference can be drawn from his entire testimony that Ramirez did not believe Porter.

10.   This episode is representative of the inconsistency of appellants' positions both at trial and on appeal.   They have repeatedly urged that one of the reasons they chose to believe the initial Porter story was because they believed Richard Lee was factually innocent of Leong's murder.   Yet, the opportunity to obtain firsthand information from the first attorney Lee met with was readily available to them and they failed to examine it.   This is particularly significant since the attorney told them his information would not be beneficial to Lee.   Their explanation is “[b]ecause Ramirez felt that Richard Lee would not lie to him at that stage of their relationship, and because at that point in their investigation the journalists' concerns had focused on the fairness of the criminal proceedings in San Francisco Chinatown cases rather than on the guilt or innocence of one person, Bergman failed to reinterview [the attorney] in the remaining weeks before the writing of the story.”   (Emphasis ours.)

11.   Appellants have assigned as error virtually every ruling made by the trial court.   With some exceptions, they deal with the same general subject matter and may be decided collectively.   We have classified them accordingly.

12.   Subdivision 4(d) of Civil Code section 48a states:  “ ‘Actual malice’ is that state of mind arising from hatred or ill will toward the plaintiff;  provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.”   This portion of the statute was enacted prior to the New York Times decision.The proviso relating to good faith belief is irrelevant to the punitive damages definition of “actual malice” post-New York Times, since that state of mind would preclude initial liability in cases involving public officials.

13.   See, e.g., Hall, Pleading in Libel Actions in California, 12 So.Cal.L.Rev. 225;  Hall, Proof in Libel Actions in California, 24 So.Cal.L.Rev. 339;  Punitive Damages and the Intoxicated Driver:  An Approach to Taylor v. Superior Court, 31 Hastings L.J. 307;  Punitive Damages and the Drunken Driver, 8 Pepperdine L.Rev. 117;  Symposium:  Punitive Damages Articles, 56 So.Cal.L.Rev. 1 et seq.;   Franson, Exemplary Damages in Vehicle Accident Cases, 50 Cal. State Bar Jrnl. 93;  Smith v. Wade (1983) 461 U.S. 30, 38–55, 103 S.Ct. 1625, 1631–1640, 75 L.Ed.2d 632;  Curtis Publishing Co. v. Butts, supra, 388 U.S. 130, 87 S.Ct. 1975;  Cantrell v. Forest City Publishing Co., supra, 419 U.S. at pp. 251–252, 95 S.Ct. at pp. 469–470;  Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413–414, 134 Cal.Rptr. 402, 556 P.2d 764;  Kapellas v. Kofman, supra, 1 Cal.3d at pp. 28–31, 81 Cal.Rptr. 360, 459 P.2d 912;  MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 551–552, 343 P.2d 36;  Davis v. Hearst, supra, 160 Cal. at pp. 115–166, 116 P. 530;  Hearne v. De Young (1901) 132 Cal. 357, 64 P. 576;  Manguso v. Oceanside Unified School Dist., supra, 153 Cal.App.3d 574, 200 Cal.Rptr. 535;  Burnett v. National Enquirer, Inc., supra, 144 Cal.App.3d at pp. 1005–1009, 193 Cal.Rptr. 206;  Earp v. Nobmann (1981) 122 Cal.App.3d 270, 285, 175 Cal.Rptr. 767;  Bindrim v. Mitchell, supra, 92 Cal.App.3d at pp. 74–75, 155 Cal.Rptr. 29;  G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26–32, 122 Cal.Rptr. 218;  McCunn v. California Teachers Assn. (1970) 3 Cal.App.3d 956, 962–964, 83 Cal.Rptr. 846.)

14.   At that time Civil Code section 3294 stated:  “In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”It has since been amended to define malice as “conduct which is intended by the defendant to cause injury to the plaintiff or conduct which is carried on by the defendant with a conscious disregard of the rights or safety of others.”

15.   See, e.g., Kapellas v. Kofman, supra, 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912;  Burnett v. National Enquirer, Inc., supra, 144 Cal.App.3d at pp. 1006–1007, 193 Cal.Rptr. 206;  G.D. Searle & Co. v. Superior Court, supra, 49 Cal.App.3d at pp. 29–30, 122 Cal.Rptr. 218;  McCunn v. California Teachers Assn., supra, 3 Cal.App.3d at p. 962, 83 Cal.Rptr. 846.)

16.   A number of other cases over the years have articulated different standards.  Hearne v. De Young, supra, 132 Cal. at pp. 361–362, 64 P. 576, indicated that actual malice meant “ ‘personal hatred or ill will towards the plaintiff, or wanton disregard of the civil obligations of the defendants toward the plaintiff.’ ”  (Emphasis ours.)   Even earlier, in Turner v. Hearst (1896) 115 Cal. 394, 401, 47 P. 129, the court stated:  “Gross negligence or carelessness of the rights of others is frequently equivalent in law to an intentional or malicious disregard of those rights.”   In Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869–870, 118 P.2d 465, it was indicated that “wanton and reckless misconduct” was sufficiently descriptive of the malice necessary to support a punitive damage award.

17.   We do not find Kapellas v. Kofman, supra, 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912, to be opposed.   In that case, the Supreme Court held in a case of a mother and her children suing for libel, that the publisher's malice toward the mother was sufficient to permit the children to recover punitive damages.   It was not necessary for them to prove that the publisher bore them any personal hatred or ill will, but they were still required to prove actual malice toward the mother.  “Further, we do not believe that the availability of exemplary damages need be predicated on a showing of malice toward each individual child in a case in which it may be shown that the defendant's misstatements about the children arose from ‘hatred or ill will’ toward their mother.   Exemplary damages are imposed ‘for the sake of example and by way of punishing a defendant’ (Civ.Code, § 48a, subd. 4(c)) and one who libels an innocent party with whom he has no dispute in order to injure a third party may well be thought more reprehensible than an individual who libels only his antagonist.   To interpret section 48a, subdivisions 2 and 4(d) (‘no exemplary damages may be recovered unless the plaintiff shall prove that defendant made publication ․ with actual malice;’  ‘actual malice is that state of mind arising from hatred or ill will toward the plaintiff ․’), as barring such recovery unless each child could show that he was the personal subject of defendant's hatred would illogically grant greater protection to the disputants than to innocent individuals who may be deliberately injured;  in light of the stated purposes of exemplary damages in the same provision (§ 48a, subd. 4(d)) we cannot accept such an interpretation.”  (Id., at p. 30, fn. 7, 81 Cal.Rptr. 360, 459 P.2d 912.)The same reasoning applies to respondents herein.   The libelous charges were directed at all three of them, and their close association in the prosecution of Richard Lee made it inevitable that actual malice directed toward any of them would result in damage to all.

18.   It might be argued that newspapers engaging in long-term investigatory articles operate more like magazines and hence are not entitled to special statutory protection under these circumstances.  (See e.g., Burnett v. National Enquirer, Inc., supra, 144 Cal.App.3d 991, 193 Cal.Rptr. 206.)   However, the statute does not make this distinction, and we are disinclined to interpret it beyond its plain terms.

19.   Given our conclusion that the evidence supports a finding that Ramirez and the Examiner knew the articles were false, we need not and do not determine whether reckless disregard constitutes a state of mind sufficient to satisfy the standards of Civil Code section 48a.

20.   The record does not reveal any overt attempt by respondents to appeal to passion or to prejudice the jury.   The examination and cross-examination of witnesses and the arguments of all counsel were carried out in a professional manner.   In fact, the respondents' arguments on damages were understated.

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.

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