Nobody Beats Up My Brother But Me

 Posted on December 05, 2008 in Uncategorized

Soon-to-be Houston criminal-defense lawyer Murray Newman (formerly AHCL) has written several times on his blog, Life at the Harris County Criminal Justice Center, about the Harris County Criminal Justice Center - not just prosecutors, but also the defense bar and the courts' staffs - as a "family". To a certain extent he is right - I'll give you "family" if you give me "intensely dysfunctional". We beat the crap out of each other in court (and the blogosphere - Murray and I have had vehement disagreements on our blogs a time or two), but when one of is us in dire straits the rest often come together to help.

Now Murray has been fired, not by a member of the family, but by an outsider - soon-to-be District Attorney Pat Lykos.

In April Lykos "said prosecutors who are passionate, ethical and work hard don't have to worry if she is elected" (Brian Rogers in the Chronicle, H/T commenter Natalie). Those of us who know Murray know that Murray is passionate, ethical, and hardworking; he was fired because he spoke out against Lykos on his blog. So in April Pat Lykos lied.

This is no surprise: defense lawyers who practiced before Lykos when she was a judge tell about her lying to juries (for example, blaming lawyers for delays for which she was solely responsible). (Which Republican candidate said during the course of the Republican primary that people don't change?)

But what of those people who don't know Murray? As a private citizen, Pat Lykos said that prosecutors who are passionate, ethical, and work hard don't have to worry if she is elected. As a private citizen, and as a result of her election, she caused Murray to be fired, implying by that act that Murray is other than passionate, ethical, and hardworking.

I mention that Pat Lykos performed these acts as a private citizen because that would negate any defense of sovereign immunity. Does Murray have a cause of action for defamation?

Maybe it's neither slander nor libel, because it's neither spoken nor written.

Is there implied defamation?

If not, maybe there's another theory of civil liability.

Let's review the facts.

1. Defendant has a passionate, ethical, hardworking, and loyal employee who has a blog that is read by more people every week than have read the Harris County DA's Office's press releases, ever.

2. Defendant could harness that lawyer's communication skills and network for the good of the State, the people of Harris County and, not incidentally, the glory of the Office.

3. Instead, she lies publicly about whether she will fire him, and then fires him.

4. Defendant does not fire every one of his friends in the Office, ensuring not only that Murray will continue to blog, but also that either a) he will be breaking stories about any slipups on the Sixth Floor; b) there will be several more anonymous dissenting prosecutor blogs come the first of the year; or (most likely) c) both.

This raises the final tort law question of the night:

Is there such a thing as tortious stupidity?