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Appeals court affirms win for City Paper

The Baltimore City Paper did not defame a nightclub owner by reporting that some people thought he could have been involved in a double murder, an appellate court has affirmed.

Even if a pair of articles contained defamatory material, the Court of Special Appeals held, the paper and its reporter were protected by the fair reporting and fair comment privileges.

The decision is a second loss for Nicholas Piscatelli, a co-owner of the former Redwood Trust nightclub when manager Jason Convertino and a friend, Sean Wisniewski, were killed at Convertino’s home.

Piscatelli’s lawsuit against the paper and reporter Van Smith did not survive a defense motion for summary judgment in 2009, and the Court of Special Appeals affirmed it in an opinion published Thursday.

City Paper Publisher Donald Farley said he was pleased but not surprised.

“Quite frankly, I did not think the decision would be any different,” Farley said. The paper’s attorney, Peter F. Axelrad of Council, Baradel, Kosmerl & Nolan PA in Annapolis, did not respond to a request for comment.

Piscatelli’s lawyer, Peter A. Prevas of Prevas & Prevas in Baltimore, said he would have to discuss an appeal with his client.

Security guard convicted

Convertino and Wisniewski were found dead in April 2003 and a former security guard at the club, Anthony Jerome Miller, was charged with both murders.

Whispers about Piscatelli made their way into discovery documents filed by the state in Miller’s prosecution, and Miller’s lawyer tried to cast aspersions on the club owner at trial.

According to court documents, a stranger approached Convertino’s mother at a benefit for her grandson shortly after her son’s death and told her that Piscatelli was behind the murders. She also said the reporter, Smith, told her he had heard from unnamed sources that Piscatelli had threatened to kill Convertino.

At Miller’s trial, Piscatelli was a witness, and defense counsel questioned him about his potential motives for killing the men. The attorney said Piscatelli suspected Convertino of stealing money and that Convertino planned to leave to work for a competitor.

Miller was convicted of both murders on March 15, 2007, and sentenced to two 30-year prison terms.

The City Paper’s Smith wrote several articles about the murders, fleshing out the details of what Convertino’s mother had heard about Piscatelli. Smith also interviewed Piscatelli, who denied any wrongdoing.

Piscatelli filed a complaint in Baltimore City Circuit Court in December 2007 against Smith and CEGW Inc., the owner of City Paper, alleging that two stories, published in December 2006 and June 2007, included false and defamatory accusations that he was involved with the murders, cast him in a false light and invaded his privacy.

Smith and CEGW filed a motion for summary judgment, arguing that the stories were not defamatory, did not misstate facts and that the articles were wholly privileged. On Feb. 17, 2009, the circuit court granted that motion.

Privilege applies

Writing for the appellate court last week, Judge Christopher Kehoe outlined the elements of a defamation action and three potential defenses that bar recovery.

The first defense is the press’s qualified privilege to report on judicial proceedings, even if the story contains defamatory information, as long as the article is fair and substantially accurate and there is no actual malice found.

Under the fair comment privilege, a person may express “fair and reasonable” opinions on matters of legitimate public interest. And under the third defense, a person can express opinions without liability if the facts from which the opinion is derived are made available and those facts are not proven false.

The court said Piscatelli admitted in his deposition that the statements he complained about did not contain falsities — that is, even though the content may have been false, the paper accurately reported what had been said.

The court ticked through all of the potentially defamatory statements and concluded that all of the information was covered by fair reporting or fair comment privileges or was opinion, and not the bases for liability.

“My argument was … that you have to read the article as a whole, as opposed to breaking out every little statement to determine whether it’s defamatory and whether a privilege applies,” said Prevas, Piscatelli’s attorney. “They did what the City Paper argued, which was to break out every little piece.”

This is not the first time Smith, the senior reporter for the alternative weekly, has faced allegations of defamation. In September, after Smith misidentified a Miami restaurateur as a federal fugitive of the same name, a U.S. District Court jury in Baltimore ordered City Paper to pay $350,000 for defamation.

The jury found Smith had not acted with malice, just negligence, when he published two articles claiming Ioannis Kafouros was “Crazy John” Kafouros, a Baltimore restaurant and nightclub owner who was convicted of trafficking in stolen goods and sentenced in absentia in 1999.

That judgment was satisfied in October, court records show.

WHAT THE COURT HELD

Case:

Nicholas A. Piscatelli v. Van Smith, et al, No. 2838, Sept. Term 2008. Reported. Opinion by Kehoe, J. Filed Jan. 27, 2011.

Issue:

Did the circuit court err in granting summary judgment in a defamation action against a newspaper publisher?

Holding:

No; affirmed. Even if the articles contained material that would otherwise be defamatory, the publication was protected by the fair reporting and fair comment privileges.

Counsel:

Peter A. Prevas for petitioner; Peter F. Axelrad for respondent.

RecordFax#11-0127-01