The Journalist and the Murderer (19 page)

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Evidently not yet ready to terminate his law therapy, Masson appealed the summary judgment. In August 1989, it was upheld by the U.S. Court of Appeals for the Ninth Circuit in a 2–1 decision. Masson promptly filed yet another appeal—this one for reconsideration of his case by a larger panel of the Appeals Court—which is pending as I write.

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In an article headed “Ethics, Reporters, and the New Yorker,” in the March 21, 1989, issue of
The New York Times
, a reporter named Albert Scardino wrote that “testimony at the trial portrayed her as fabricating quotations and manufacturing dialogue,” and that “Miss Malcolm conceded the fabrications.” Of course, there had never been any such testimony, since there had never been any trial (the suit was dismissed before trial), and, of course, I conceded no fabrications (at the imaginary trial). Some of Scardino’s confusion—and that of journalists reporting the subsequent affirming decision of the Appeals Court—doubtless derived from the rather arcane nature of summary judgment, an expedient the law provides for defendants who wish to avoid the expense of a trial. In summary judgment, the defendant must demonstrate that the plaintiff could not possibly win his case at trial. To make this demonstration fit within the confines of Rule 56(c) of the Federal Rules of Civil Procedure—which stipulates that summary judgment may be granted only when “there is no genuine issue as to any material fact”—the defendant is often obliged to leave unchallenged dire accusations which, at trial, the plaintiff would have to back up with evidence. Thus, in the Masson-Malcolm suit, to comply with Rule 56(c), the defense did not challenge the plaintiff’s accusation that four pages of notes which I had submitted to the court as the source of certain quotations in my book were “fabrications.” Accordingly, the decisions of the lower court and the Appeals Court said, in effect, that even if Masson’s accusation regarding the notes were true, his case could not prevail in the face of the evidence of 1,065 undisputed pages of tape transcript. But the “even if” formula of the summary judgment was evidently not grasped by the daily press and was taken to mean “it is so.” I would like to say in the congenial shade of this footnote that I consider the accusation that I fabricated notes and invented quotations ludicrous beyond belief, that I utterly deny it, and that there is no evidence for it.