The Texas Supreme Court on Friday ordered the dismissal of a prosecutor’s libel lawsuit against an East Texas newspaper, rejecting Tommy Lamar Coleman’s claims that he was not involved in Williamson County’s notorious wrongful prosecution of Michael Morton.
Morton was exonerated in 2011 after spending nearly 25 years in prison. A bloody bandana found near the scene of his wife’s 1986 murder in the couple’s home was finally subjected to DNA testing after years of opposition by Williamson County prosecutors. The DNA was linked to a convicted felon named Mark Alan Norwood, whose DNA also was found at a murder scene in Travis County.
Coleman’s statements about the bandana played a key role in the Supreme Court’s ruling.
The article published by the Polk County Enterprise in 2020 said that Coleman was overheard in a Williamson County courtroom in 2011 mocking Morton’s requests to have the bandana tested, saying “Ewww! Bloody bandana!” The newspaper said that Coleman, who had been hired as an assistant prosecutor in Polk County, had “assisted with the prosecution of Morton.”
The newspaper published the article in 2020 as part of an ongoing series about the need for criminal justice reform.
Coleman said that he was 17 and not a lawyer when Morton was convicted in 1987. While employed by the Williamson County district attorney’s office from 2008 to 2012, Coleman said he never appeared as counsel for the state of Texas in any of the post-conviction proceedings during which prosecutors resisted DNA testing of the bandana.
The court, in an opinion by Justice Jimmy Blacklock, overturned a holding from the Ninth Court of Appeals that determined the average reader of the article would have understood that Coleman was involved in Morton’s prosecution and conviction, not the post-conviction habeas proceedings.
A unanimous Supreme Court disagreed, with one justice, Jeff Boyd, concurring in the court’s judgment but agreeing with only part of the opinion.
An article is substantially true and not defamatory if the “gist” of the article is true, even if it “errs in the details,” the court said.
“The gist of the article as a whole conveys to the reader the uncontested fact that Coleman ‘assisted’ the ‘prosecution’ by mocking the exonerating evidence in the courtroom,” Blacklock said.
“When referencing the entire history of the Morton ‘case,’ many reasonable non-lawyers – and even some lawyers – might very well refer to the Williamson County DA’s decades-long effort to put Morton in prison and keep him there as the ‘prosecution’ of Michael Morton,” Blacklock said.
“Because the gist of the article as a whole does not convey the impression that Coleman worked as a prosecutor in the initial stages of the Morton case in the 1980s, the article is not false in that regard,” the court said.
Blacklock referenced Coleman’s audible mocking of the very piece of evidence that would ultimately exonerate Morton after 25 years of wrongful imprisonment.
“Nothing in the Enterprise article would be more damaging to Coleman’s reputation, in the eyes of the average reader, than this undisputedly true account of Coleman’s participation in Morton’s post-conviction proceedings. For this additional reason, the article’s statement that Coleman ‘assisted with the prosecution’ of Morton is not actionable, as a matter of law, with respect to Coleman’s involvement in Morton’s post-conviction proceedings.”
Veteran First Amendment lawyer Thomas S. Leatherbury argued the case for Polk County Publishing Co. and Valerie Reddell, an editor at the twice-weekly paper.
Coleman was represented at oral argument by Tanner Franklin of Hightower, Franklin & James from Nacogdoches.
The publisher received support in an amicus brief filed by Laura Lee Prather on behalf of the Freedom of Information Foundation of Texas, the Texas Press Association and Texas Association of Broadcasters. The brief said the Beaumont Court of Appeals failed to ask the critical question required by longstanding precedent – whether the article was more damaging to Coleman’s reputation in the mind of an ordinary reader than a truthful publication would have been.
The case is No. 22-0103.