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Court of Appeals hears arguments on Baltimore City Paper defamation case

ANNAPOLIS – The Baltimore City Paper abused its privilege to report fairly and accurately on a double murder trial when it published articles implicating a former nightclub owner in the slayings — though he was never charged in the crime, the man’s attorney told Maryland top court Friday in an effort to revive a defamation claim.

But the newspaper’s lawyer told the Court of Appeals that nothing in the reporting about Nicholas Piscatelli’s potential involvement in the killings was untrue.

The legal odyssey to the Court of Appeals began in January 2009, when the Baltimore City Circuit Court dismissed the lawsuit brought by Piscatelli, co-owner of the former Redwood Trust nightclub, against City Paper and reporter Van Smith. The Court of Special Appeals upheld the dismissal, saying the paper and Smith were protected by fair reporting and fair comment privileges.

But attorney Peter A. Prevas, pressing Piscatelli’s high court appeal, said City Paper and Smith forfeited those legal privileges by publishing two articles based largely on an “unconfirmed rumor” — a statement by the mother of one of the victims that she had heard the nightclub owner was behind the slayings.

The mother’s statement, contained in court papers, was never introduced at trial, Prevas told the court.

“You can abuse your privilege by not fairly and accurately reporting what went on during that trial,” said Prevas, of Prevas & Prevas in Baltimore. Reporters “must fairly and accurately report on the case.”

But Peter F. Axelrad, attorney for City Paper and Smith, said his clients did nothing wrong because there was “nothing false” in the article.

“We quoted what was said … and we talked about it,” Axelrad told the court. “That’s what reporters do, that’s what newspapers do.”

In the articles, the newspaper reported on the killings of the nightclub’s manager, Jason Convertino, and a friend, Sean Wisniewski, at Convertino’s home in April 2003. Anthony Jerome Miller, a former security guard at the club, was convicted of both murders on March 15, 2007, and sentenced to two 30-year terms.

Smith’s reporting on the case included comments from Convertino’s mother that unnamed sources had told her Piscatelli had threatened to kill Convertino and was behind the murder of the two men. Smith also interviewed Piscatelli, whose denial of any wrongdoing was included in the two articles, published in December 2006 and June 2007.

Prevas told the Court of Appeals that the newspaper violated fair reporting and comment privileges by reporting in essence that “Mr. Piscatelli is the killer.”

But several judges appeared unconvinced.

Judge Lynne A. Battaglia said journalists are free to report was is said at trial and included in court records without first judging their legal merit.

“No reporter is going to sit and figure what is grasping at straws and what isn’t,” Battaglia said.

Chief Judge Robert M. Bell said Smith validly reported on what was told to the mother and stated in court.

And Judge Sally D. Adkins said reporters are generally permitted to “speculate” on what they learn from court documents and trial testimony.

Axelrad defended the newspaper and Smith before the high court, saying that both provided “a fair analysis … of a matter of serious interest” in reporting on Piscatelli’s possible involvement in the slayings.

“We reported what happened, what we heard,” added Axelrad, of Council, Baradel, Kosmerl & Nolan PA in Annapolis. “We did not say he did something.”

Piscatelli, “whether he liked it or not,” was mentioned both at trial and in court filings, Axelrad said. “He was hurled into it by others, not by us.”

The Court of Appeals did not say when it will render a decision in the case, Piscatelli v. Smith, et al., No. 18 September Term 2011.

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