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Saturday, February 9, 2008

And Now a Word From Our Mascot

Posted By on Sat, Feb 9, 2008 at 10:39 AM

Lacey quizzed on words, dirty and otherwise. Don’t these people know “news” is a four-letter word?

By Andy Van De Voorde

When New Times executive editor Michael Lacey took the stand Friday, it didn’t take long for the differences between him and his Guardian foe, Bruce Brugmann to become apparent.

Lacey is the first defense witness in the Guardian predatory pricing suit against the Weekly. The Guardian claims the Weekly and New Times, its former parent company (now called Village Voice Media), intentionally priced ads below cost in an effort to drive it out of business.

And when Lacey took the stand as New Times’ first witness, he provided a study in contrasts to Brugmann.

“What’s your official title?” asked Weekly attorney H. Sinclair Kerr Jr. in what is a traditional first question for witnesses.

“I’m the executive editor of the company and apparently the mascot,” Lacey replied.

The remark was a reference to testimony from Guardian executive editor Tim Redmond, who last week said under oath he thought of Lacey as a New Times mascot.

Much as Guardian attorneys earlier asked Brugmann to describe the founding of the Guardian, Kerr began by questioning Lacey about the beginnings of New Times.

Though both papers came from humble beginnings — Lacey said New Times’ first office was in a storage closet at a strip-mall clothing store in Phoenix — their editorial philosophies were worlds apart.

Brugmann told the jury about his various crusades, such as fighting the construction of high-rise office buildings. Lacey spoke of individual stories.

His paper started as a reaction to the shootings at Kent State University, Lacey said. But rather than running opinion pieces, it emphasized reporting. For the first edition, Lacey said, he interviewed a group of construction workers “who had come to an [anti-war demonstration] at the urging of the daily newspapers to show these kids what America was all about.”

While he was interviewing one of the workers, Lacey said, the man excused himself, walked over to an anti-war protester, knocked the man’s teeth out, then returned to finish the interview.

Kerr’s questioning also shed light on an issue that has been a pet peeve for Brugmann and Redmond: Lacey’s dislike of “editorials.” The Guardian editors implied that the numerous commentaries they run telling people what to do proves their commitment to the community, and suggested that Lacey’s disavowal of the form reveals a general disdain for San Francisco.

However, Lacey told the jury his views about editorials were shaped even before New Times began publishing. He recalled his efforts to rally students to an anti-war demonstration at Arizona State University, and noted that they were mischaracterized on the Arizona Republic’s editorial page as an invitation to “burn down the ROTC building.”

The arch-conservative daily paper also regularly ran editorial cartoons portraying war protesters as long-haired bomb-throwers with visible body odor--and did so on its front page.

Front-page bombast, noted Lacey, was “part of the reason I have such a distaste for editorials.”

As a result, Lacey added, New Times began as a paper focused on investigative reporting. It was the first paper, he said, to write about the high rates of leukemia and cancer among American Indians who had worked in uranium mines, and also exposed corruption by public officials, such as a U.S. senator who perjured himself in an attempt to wriggle out of a drink-driving rap.

Despite its history of enmity with the Republic, New Times was also the only paper in Phoenix to run the first series of articles produced by the Investigative Reporters and Editors organization: an investigation of the murder of the daily’s top reporter, Don Bolles. The newsman’s car was blown up in an attempt to prevent him from writing about the mob; but the Republic refused to print the IRE series.

“The stories we made our bones with in Arizona were hard-hitting news stories,” Lacey said.

Differences in Lacey’s and Brugmann’s personal histories were also stark.

Brugmann had described being the Iowa-bred son of prosperous drugstore owners, a college athlete, and the recipient of a master’s degree from an Ivy League school. Lacey told the jury he grew up in the New York City area, the son of a sailor and merchant marine who had a “Hold Fast” tattoo across his knuckles “before everybody had a tattoo.”

His mother was a nurse, Lacey said, and his father stayed on dry land to work construction “after I came along.” But despite his father’s lack of a formal education, he insisted that the young Lacey read the daily New York Journal American every day, an exercise the editor suggested may have first sparked his interest in journalism.

Lacey worked as a steamfitter and pipefitter to pay his college tuition at ASU, as well as hiring on for construction jobs. However, he noted, he never graduated from college.

Neither, he noted, did his longtime business partner, Jim Larkin.

Instead, Larkin wrote his way onto the New Times staff with a “five or six page handwritten letter” in which he talked eloquently about growing up in a town seemingly at the mercy of the right-wing Republic.

“I got ahold of him and said, ‘Let’s sit down and talk,’” Lacey said, and Larkin eventually became the paper’s publisher, putting in full-time days at New Times while working nights as a waiter at a “surf ‘n’ turf” restaurant.

Being publisher meant he handled the business side? Kerr asked.


“What’s the focus of the business side?” Kerr continued.

“Well, it’s all this tedious stuff you’ve been listening to for the past two and a half weeks,” Lacey replied.

Kerr then walked Lacey through the company’s early expansion efforts, which began with the company’s 1983 purchase of Denver Westword, whose editor, Patricia Calhoun, Lacey described as a “force of nature,” as well as someone he could drink with at annual meetings of the Association of Alternative Newsweeklies.

New Times arrived in San Francisco in 1995, and Lacey emphasized the fact that the company invested heavily in editorial, hiring writers and editors and paying them full-time salaries with benefits. When he arrived, he recalled, the Weekly had just one full-time writer, George Cothran, a man he liked and kept on the staff.

But there was a lot about the Weekly of 1995 he didn’t like.

After reading six months’ worth of the papers, Lacey said, he saw that the Weekly ran a lot of freelance stories about faraway places. “They could write about world events, but they couldn’t write about San Francisco,” he added.

One story he read, said the editor, was a freelance piece about the state of alternative weekly journalism which included a quote from then-Weekly editor Andrew O’Hehir.

O’Hehir has already testified as a witness for the plaintiff; he claimed he heard Lacey say at a 1995 staff meeting “words to the effect” that he wanted to put the Guardian out of business.

In the freelancer’s story, Lacey said, O’Hehir described his paper as “put out for an increasingly small, sophisticated, cutting-edge audience of underemployed graduate students and disaffected radicals.”

Lacey’s reaction?

“I wanted to kill him,” he told Kerr.


“It was such a snotty, upper-class, elite thing,” Lacey replied. “It’s why I’m in a bar at AAN conferences with Patty Calhoun so I can avoid these clove-cigarette-smoking intellectuals who’ve copped this attitude.”

Perhaps it was blunt statements like that that prompted O’Hehir to come all the way from Chicago last week to testify against New Times. The former Weekly editor, who Lacey fired shortly after the purchase, told the jury the New Times boss was adamant at the 1995 meeting about wanting to drive the Guardian into the sea. His comments on the stand were far more incriminating than what he had offered earlier in a declaration.

Lacey told the jury on Friday that he never said anything about putting the Guardian out of business. He did recall telling his new troops about his interest in long-form journalism and his low regard for the Guardian, which had been held up as the model of excellence in the same story where O’Hehir made his clove-scented remarks.

“I wanted to disabuse them of the notion that [the Guardian] was a good newspaper,” Lacey said. “I told them that if we wrote news stories that looked at the big picture in San Francisco, rather than just city hall, if we did magazine style writing, we would be the only game in town,” he added.

Guardian attorney Ralph Alldredge was quick to pounce on the “only game in town” comment when he began his cross-examination.

During the trial the Guardian has made Lacey’s “only game in town” boast the centerpiece of its shaky predatory pricing case. That’s because the Guardian needs to do more than just show the Weekly sold ads below cost, which is not illegal; the Guardian must prove that the Weekly did so with the intent of harming its competitor. Even though the comment was made 13 years ago, the Guardian’s lawyers have held it up as proof of a conspiracy that Lacey—and New Times—meant to ruin Brugmann’s paper financially.

Alldredge noted that, at Lacey’s deposition, the editor had said he couldn’t recall specific language from the 1995 meeting.

So why did he now recall making the comment?

He was told not to prepare for his deposition, Lacey responded. But he recalled the remarks after having the opportunity to refresh his memory.

Alldredge also challenged Lacey regarding his “I wanted to kill him” comment about O’Hehir on the stand earlier.

“Was that designed to suggest to people in this room that you might use colorful language like this and not really mean it?” the attorney asked.

It took a moment to understand just what Alldredge was driving at.

“You didn’t really mean to kill Mr. O’Hehir, did you?” the attorney continued, in an attempt to explain himself.

No, replied Lacey.

“But you deliberately used those words in the courtroom this morning,” noted Alldredge. “You didn’t get up on the stand thinking that, at the right moment, you might say, 'I want to kill Mr. O’Hehir?'"

After a few beats, it became evident that Alldredge meant to convince the jury that Lacey had concocted the “kill him” comment in advance as part of a scheme to portray himself as a man prone to exaggeration.

According to the attorney’s curious theory, saying he felt like killing O’Hehir was actually Lacey's way of sending a subtle signal to the jury: That even if the New Times editorial chief did say he wanted to drive the Guardian out of business, it wasn’t a comment that should be taken seriously.

Lacey’s reply?

“The court has also heard that I’m profane, but at this point I haven’t killed anybody.”

However, Alldredge wasn’t ready to give up the fight, again suggesting Lacey had pre-planned the “kill him” remark.

“I didn’t craft a statement,” said Lacey. “I gave you a reaction to you folks about that.”

“Crafting words is your profession, isn’t it?” asked a dubious Alldredge.

“When I write,” responded Lacey.

“Does that not follow to your speech as well?”

Lacey laughed. “Well, that remains to be seen,” he said.

“Do you see yourself as a clumsy speaker then?” Alldredge continued.

“Intemperate,” suggested Lacey.

“As in, you might say you wanted to kill someone when you didn’t really mean it?” the attorney went on.

“Yeah, I guess that’s fair,” said Lacey.

Getting Lacey to admit he didn’t really mean to kill O’Hehir when everybody in the room already knew it didn’t exactly resound as a legal bombshell. And whether Alldredge’s depiction of Lacey as a manipulative wordsmith got any traction with the member of the panel was unclear.

Either way, Alldredge wouldn’t give up on the theme of Lacey’s rhetorical wiliness.

Take, for instance, the editor’s fabled profanity.

Cursing apparently was on Alldredge’s mind because, under questioning from Kerr, Lacey had made an observation about Jennifer Lopez, another old-Weekly employee who testified last week for the Guardian and among other things noted Lacey’s high-octane verbal artistry.

“I didn’t realize the woman in charge of adult advertising for the Weekly was going to be offended by my language,” Lacey told Kerr, obliquely suggesting that her umbrage itself may have been manufactured.

That was Alldredge’s cue. The attorney quickly suggested that Lacey’s comment reflected an ulterior motive.

“It might make people have negative thoughts about Ms. Lopez,” noted the attorney.

Alldredge also didn’t appear to appreciate Lacey’s insistence that he doesn’t review corporate financial statements. The attorney repeated the question three times, and got a “no” each time.

Finally, the exasperated Alldredge demanded, “Not ever?!”

“Listen, I don’t even balance my checkbook,” Lacey said. “I mean, looking at these charts you guys have been noodling with for the last few days has been painful.”

The Guardian's lawyers are desperate to show that Lacey, despite his insistence that he only oversees the editorial side of the company, has a direct hand in New Times' business affairs. Showing that to be the case would cast Lacey's "only game in town" comment in a more sinister--and legally relevant--light. Lacey has insisted, however, that he simply meant he wanted the Weekly to become a better editorial product than the Guardian.

Alldredge was also skeptical about why Larkin hasn’t attended the trial—an odd question given that he could have subpoenaed the New Times executive.

“He hasn’t been to the trial, is that right” inquired Alldredge.

“No he hasn’t," Lacey replied. “He’s been dealing with this Bush economy. He’s been making sales calls, he’s been doing everything he can.”

The “sales calls” remark clearly angered Alldredge, given earlier testimony in the trial about how detached Brugmann and his co-publisher/wife, Jean Dibble, are from the Guardian’s day-to-day business operations.

Dibble admitted she hadn’t been on a sales call in 35 years.

Alldredge immediately turned to Superior Court Judge Marla J. Miller and asked her to strike the remark from the record. The judge complied.

Alldredge also objected when Lacey, under questioning from Kerr, talked about the events of September 11, 2001. The visibly moved editor told the jury one of his business partners was in the first plane to crash into the World Trade Center. And when he began to soberly recount the devastating affect the terrorist attack had on the nation and its economy, Alldredge hopped to his feet and asked the judge to strike the testimony.

A recurring theme in the trial has been the Guardian’s insistence that 9/11, along with purely economic calamities such as the dot-com bust, are not responsible for its sagging financial condition.

Instead, the paper seeks to blame the Weekly for its lower profits.

Miller told Kerr to move on.

In one memorable exchange, Alldredge brought up the fact that Lacey wrote a highly critical article about Brugmann after one of the Guardian editor’s rants about New Times.

“You wrote screeds from time to time?” asked Alldredge.

“Alas,” replied Lacey, an allusion to Brugmann’s repeated use of the archaic word in his own testimony.

“Was the title of it, ‘Bruce Brugmann’s Brain Vomit?’” inquired Alldredge.

“Oh dear,” said Lacey. “Yes it was.”

“Alas,” said Alldredge.

The attorney and the editor also bantered about the Weekly’s finances and why New Times has chosen to keep the San Francisco paper afloat despite consecutive years of losing money. “After five or six years, we were making money up here, when the dot coms crashed,” Lacey said. “We’re still on a direction to make money.”

Alldredge then asked about earlier statements by Weekly attorneys that the paper had an operating profit in 2000 and 2001, belying the Guardian’s claim that it has never had a profitable year under New Times ownership.

“You can’t get me to define operating profit any more than you could get Sandy Lange to define operating profit,” said Lacey.

The reference was to the Guardian’s controller, who had endured a blistering cross-examination from Weekly attorney Ivo Labar the day before. Lange wrapped up her own testimony Friday morning before Lacey took the stand.

Lange’s short time in the witness box was mostly spent fending off Labar’s scrutiny of her claims that she had identified 128 customers “lost” to the Guardian thanks to the Weekly’s underhanded ways.

Labar raised serious doubts about a number of those customers yesterday, and picked up where he left off Friday morning, getting Lange to acknowledge several examples of Guardian ad discounts unrelated to the Weekly, a lack of evidence for her claim that a nightclub called Fluid had an “exclusivity deal” with the Weekly, and the fact that her survey didn’t take into account such factors as “trade” arrangements whereby advertisers pay their bills with services rather than cash.

Labar also pressed Lange on perceived irregularities in the spread sheet she provided as her proof of the Weekly’s misconduct.

Lange has testified that 91 percent of the Weekly ads she surveyed were sold below cost, according to her own calculations (not the Weekly’s).

But at times Labar seemed to have read the report more closely than she had.

For instance, he noted that Lange had included a column titled “BG Losses $$” on the report, portions of which have been shown to the jury numerous times. In fact, Labar noted, there were nothing but zeros up and down that column.

“You did that because you intended to calculate the Bay Guardian’s losses for these individual customers, didn’t you?” he asked.

“That was a very early iteration and it didn’t turn out that way,” Lange replied.

“That was because it wouldn’t show any losses for the Guardian, isn’t it?” Labar asked.

Lange said that wasn’t the case, and went on to explain the notations were “meaningless.” She also said she hadn’t had as much time as she would have liked to work on the document.

That much seemed evident when Labar questioned her about another oddity: the fact that on the electronic spread sheet she provided to the Weekly, a portion of the records for one customer had been “frozen” so the Weekly couldn’t look at them.

After “unfreezing” that part of the spread sheet, Labar told the jury, the Weekly discovered it contained evidence that the Weekly had been charging the customer what the Guardian itself described as “sky high” prices.

That flies in the face of the Guardian’s claim that the 128 customers on the list represent “losses” attributable to the Weekly’s bargain basement pricing.

“That was hidden from the defense, wasn’t it?” asked Labar.

“Inadvertently,” acknowledged Lange. “It wasn’t a nefarious plot to keep something from you.”

“If it was, it didn’t work, did it?” countered Labar.

The day’s final witness was the aforementioned Calhoun, who got on and off the stand in only about twenty minutes, a timely performance that drew appreciative nods from jurors.

The Westword editor noted that she had been at the 1995 meeting with Weekly staff at Lacey’s request and told the court she had no recollection of him saying anything about driving the Guardian out of business. She also said he didn’t throw a copy of the Guardian on the floor and stomp on it, as Lopez and another Guardian witness claimed.

“Had he done that, I’m pretty sure I would have remembered it,” Calhoun noted.

During cross-examination, the Guardian’s Richard P. Hill asked only a few questions, including yet another query about the fact that Lacey cusses like…a sailor.

“Do you recall any profanity specifically?” Hill asked.

Nothing specific, said Calhoun. But “he would have used the f-word. Many people in newspaperdom do.”

The trial will resume Monday morning at the courthouse on McAllister Street, most likely with live testimony from New Times chief financial officer Jed Brunst.

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