From McCaffery v NYU School of Law, decided yesterday by Judge John Murphy (E.D. Pa.):
This is a defamation case. The challenged statements are recent, but they describe an earlier legal proceeding. The story begins in 2007, when Dontia Patterson was arrested and charged with murder in Philadelphia. His first trial, prosecuted by Assistant District Attorney Beth McCaffery, ended in a hung jury. His second jury trial, prosecuted by Assistant District Attorney Richard Sax, resulted in his conviction.
Years later, Mr. Patterson's convictions and related charges were vacated and he got a new trial. At this point, the Philadelphia District Attorney's Office (DAO) assessed whether to try Mr. Patterson a third time and the DAO charged its Conviction Integrity Unit (CIU) with investigating the case.
The DAO determined that Mr. Patterson was probably innocent, so it sought to drop the case against him. As part of these proceedings, Patricia Cummings—then-Chief of the CIU—drafted a motion that alleged prosecutorial misconduct, asserting that the original prosecutors hid exculpatory evidence from the defense. The motion succeeded.
Six years later, New York University and NYU School of Law—where Ms. Cummings was serving as a Research Scholar—published a report focused on prosecutorial misconduct in the Philadelphia DAO. The report included 55 case studies—one of which focused on Mr. Patterson's case. The report's case study on Mr. Patterson included specific allegations from the Nol Pros Motion, and it named Ms. McCaffery and Mr. Sax as the prosecutors involved. Ms. McCaffery ardently rejects, as defamatory, the allegations made against her in the Nol Pros Motion and later published in the report, and she seeks relief for defamation and related torts. {Often shortened, as in this opinion, to "nol pros[,]" "[a] nolle prosequi is a voluntary withdrawal by the prosecuting attorney of proceedings on a particular bill or information, which can at any[ ]time be retracted to permit a revival of proceedings on the original bill or information."} …
The case largely turned on the "fair report" privilege, which protects accurate accounts of government proceedings, including of court filings (whether or not the filings being reported on contain errors). The court noted that the N.Y. and Pennsylvania fair report privileges differ:
