THIRD DI VISI ON SEPTEMBER 10, 2008

No. 1-06-0957

THOMAS L. KNIGHT, ) Appeal from the Circuit Court ) of Cook County , Illinois. Plaintiff -Appella nt, )

) v. ) No. 00 L 4988 ) CHICAGO TRI

BUNE COMPANY, a Corporation,) MAURICE POSSLEY and KE N ARMSTRONG, ) Honorable Robert E. Gordon,

) Judge Presi ding. Defend ants-App ellees. )

PRESID ING

JUSTICE

MURPHY delivered

the opinio n of the c ourt: This defamation action involves a trial about a trial about a trial. Thomas Knight wa s an assistant State's Attorney

who prosecuted Rolando Cruz for the murder of Jeanine Nicarico. Eventually the cour

t acquitted Cruz. Other prosecutors later charg ed Knight with obstruction of justice. Knight also won an acquittal. Knight then sued Maurice Possley and his employ

er, the Chicago Tribune, accusing them of publishing falsehoods in their article about the prosecution against Knight on the charg e of obstructing justice. The jurors found factua l inaccuracies in the article. However, in response to a specia l interrogatory , they found that Knig ht failed to prove, by clear and convincing evidence, that Possley acted with actual malice. The trial court enter ed judgm ent in favor o f defen dants based on th e general verdi ct sup porte d by the sp ecial findi ng.1-06-0957

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On appeal Knight argues tha t the court instructed the jury erroneously on da

mages and erroneously a

dmitted evidence of other negative publicity about Knight. Knight also contends that d efense couns el's cl osin g remark s depr ived h im of a fair t rial. We fin d that the co urt's rulings, sustaining objections to the remarks at issue, cured a ny such err

or. Any er

rors in the admission of evidence on damages and the da mages instructions had no effect on the dispositive finding that Knight failed to prove actual malice . Accordingly , we affirm the judgment entered in favor of defe ndants. I. BACKGROUND On February

25, 1983, police detectives in DuPage County went to the home of Tom and Pat Nicarico in response to a report that the Nicaric os could not find their daughter, Jeanine. The detect ives s aw tha t som eone h ad kic ked th e front door o pen, a nd th at pers on ki cked h ard eno ugh to leave an impression of his boot. Two day s later, Jeanine was found dead from several seve re blows to the head. An anonymous tip led police to question Alejandro Hernandez in March 1983. Police later charged Herna

ndez, Steven Buckley

and Rolando Cruz with the murder. Thomas Knight led the prosecution. A jury found Cruz and Hernandez guilty of murder. Our supreme court reversed the convictions and remanded for retrial. During a subsequent trial an offic er admitted that h e had lied in the

prior tria l about the

evidence aga inst C ruz. T

he ju dge acqu itted Cruz. A number of journalists published stories about the events leading to the prosecution and eventual acquittal of Cruz. Investiga tors began to look into the conduct of the police officer s and attorneys who c onstructed the case against Cruz. Some of the investigators, inc luding Steven1-06-0957

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Kirby, spoke to a g

rand jury a

bout their findings. Kirby told the grand jury

that he interviewed John Gorajczyk, who worked in the DuPag e County crime lab in 1983. Gora jczyk compared Buckle y' s boots to the imprint o n the Nica ricos' front doo r. He co ncluded t

hat Buckley 's boots did not make the imprint. Gorajczyk told the sheriff his findings. The next day the boots wer e not in the c

rime lab. Gorajczy

k never w rote a r eport of his finding s. Other e

xperts subs equently compared Buckley 's boots to the imprint and found a match. During preparation for the trial of Cruz, Her nandez and Buckley , Knight learned of Go ra jc zyk 's in it ia l e xa mi na ti on an d a sk ed Go ra jc zyk wh y he ha d n ot wr it te n a re po rt . G or aj cz yk told Knight he did not write a report because he ha d completed only a c

ursory examination, with out an y notes, b efore t he boo ts left the c rime l ab. Acc ordin g to th e trans cript of Kir by's testimony to the gr and jury , Kirby

affirmed that "K

night' s respons e was to te ll Gorajc zyk n ot to discuss the matter with any one [ sic ] and not to report to anyone about his neg ative findings and his failure to write a report." The grand jury

indicted four police officers and three pr osecutors, including Knight, for perj ury and o bstru ction of jus tice in co nnec tion w ith their h andl ing o f the char ges aga inst C ruz, He rn an de z a nd Bu ck le y. S om e n ew sp ap er s r ef er re d t o t he fo ur of

fi ce rs an d t hr ee at to rn eys collectively as the DuPage 7. Before the DuPage 7 tria

l began, Knight's attorney obtained in discovery tra nscripts of the grand jury

proceedings which led to the indictments aga inst the DuPage 7. Knight's attorney decided to send the complete transcripts, including the testimonies of all witnesses, to Ted Gregory , a reporter for the Chicago Tr ibune.1-06-0957

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On Januar

y 12 , 1999, the

Tribune p

ublished a

n article entitled " Prosecut

ion on tria

l in DuPage," by

Maurice Possley a

nd Ken Armstrong. The article appea red in a series entitled "Trial & Error: How Prosecutors Sacrifice Justice to Win." The re porters documented the incidents that led up to the indictments of the officers and prosecutors. I n the article they

stated: "At its core, the indictment of the DuPage 7 foc uses on two key aspects of the case: that on the eve of the first trial of Cruz *** [two detectives] concocted a lie--tha t Cruz had to ld them of h aving a 'vision' of the cr ime that included de

tails only the killer would know. That lie, ac cording to the indictment, was endorsed and perpetuated by

the prosecutors. In addition, prosec utors King and Kilander are accused of concea

ling notes that showed there was an admitted killer named Brian D ugan, a

man who ha

d alrea dy p leaded g

uilty to two othe

r murder s, including the killing

of a 7-y ear-ol d girl.

* * * *** [Cruz] is expected to testify that what he told the officers and prosecu tors during the initial day s of the in vestiga tion--wo rds that ultimately would bec ome the ba sis for a c ase ag ainst him- -was some thing he made up in hopes of cashing in on a $10,000 reward. * * * In the weeks following

the discovery of

Jeanine's body, He

rnandez *** told detectives *** that three people committed the crime, including B uckley and someone named 'Ricky .'1-06-0957

-5- While the detectives never found any body named ' Ricky,' they picked up Buckley , who turned over a pair of his boots for comparison with the print on the front door. But Buckley

denied any involveme

nt in the crime. Eager to capita lize on the r

eward, Hernandez and Cr uz babbled

incessa ntly to the detectives and the grand jury investigating Jeanine's murder. *** * * * As the trial approached, lead prosecutor Thoma s Knight summoned John Gorajczy k, a shoe print exami

ner in the sheriff 's polic e crime l ab, to disc uss his examinatio n of Buckley 's boots, accord ing to the grand jury transcr ipts. Earlier, Gorajczy

k had compared Buckley 's boots to the print on the Nicarico door and concluded they didn't match. He did not write any report about his findings. Gorajczyk told the DuPag e grand jury that Knight told him to keep his mouth shut about his conclusion and not to tell anyone that there wa s no written r eport. Knight then sent the print and boots to the Illinois State Police crime lab, where a n examiner

said he c ould not co nclusively s ay if the boo t matched

or not.

*** Eventua

lly, Knight s ettled on

Louis e Robbins, *** who no t only said Buckley 's boots matched the door print, but that she could look at a shoe print and tell the height and race of the wea rer. *** The FBI lab later condu cted i ts own tests and co nclud ed tha t Buckl ey's1-06-0957

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boot did n ot mat ch the print on th e door ." Maur ice Po ssley & Ken Armst rong, Prosecution on trial in DuPage , Chicago Tribune, Jan. 12, 1999, at 1. The trial court rescheduled Knight' s trial, from January 19, 1999, to Marc h 9, 1999, on the char ge of o bstructing justic e. The tr ial ende d in acqui

ttal for K night. In May 2000 K night sued P ossl ey, Armst rong an d the T ribun e for de famat ion. Knight 's suit focu sed on defendant s' fals e repor t that Gor ajczy k testifie d that Knig

ht told Gor

ajczy k to "keep his mouth shut about his conclusion" that Buckley 's boot did not dent the Nicaricos' front door. Knight claimed that the false statement implied that he had obstructed justice. T he trial court found that Knight stated a cause of action for defamation per se . Therefore, the trier of fact could presume that Knight suffered damag es. See Bryson v. Ne ws America Publications, Inc. , 174 Ill. 2d 77, 87 (1996). However, a s Knight admitted, the case presented an " evidentiary dispute about the appropriate amount of damages." Knight moved to block evidence of radio and television prog rams, along with newspaper article s, that co mmented o n the pros ecution o f Cruz. The trial cou rt gra nted the m

otion in pa

rt, but permit

ted defe ndants to u se a few

stories r elating directly to the boot

experts. At trial, Possley admitted that he knew Gor ajczyk never te stified before the grand jury that indicted Knight. Only K irby testified to the g

rand jury a

bout Gorajczyk' s findings. In an early draft of the artic le, Possle

y w rote tha t "Gora jczy k recalled later " that Kn

ight dir ected him not to discuss his findings. An editor thought the sentence vague . Possley sugg ested changing the passage by

adding, "according

to the grand jury

transcript." The editor rejected that suggestion because the prior pa ragraph included that phrase. The editor asked, "Can we just say1-06-0957

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'Gora jczy k told the g

rand jur y?'" Possley

said, "Su re." A t trial Poss ley

explained

that at the

time of the editing, months after he first read the tra nscripts and under the pressure of a looming deadline for printing the article, he for got that Kirby, not Gor

ajczyk, testified to the g

rand jury about the encounter. Possley defended hi s statement that Knight told Goraj czyk to "keep his mo uth shut. " Possley claimed t hat his ar ticle ac curately p araphr

ased Kir by' s testimony

that Knig ht told Gorajczyk " not to discuss the matter with any one [ sic ] and not to r eport to a nyo ne about h

is negative findings." Possley admitted that he relied solely on the grand jury

transcripts for that part of th e story ; he did not

attempt to

contact Gorajczy k to verif y the factsas Kirby

related them. Goraj czyk test ified that p rior t o the first trial of Cru z, Buc kley and H ernand ez, Bu ckley's attorney lea

rned of the initial comparison of the boot with the door. The attorney subpoenaed Go ra jc zyk . K ni gh t t he n c on ta ct ed Go ra jc zyk to as k a bo ut th e i ni ti al co mp ar is on . G or aj cz yk described his examination and explained his decision not to write a report of the examination. Gorajczyk testified that Knig ht asked him "not to discuss this with anyone until [Gorajczy k] contacted [ Knight] and *** notifi ed [Knight] that [Gor ajczyk] was speaki ng with that person." Knight did not tell Gorajczyk to kee p his mouth shut. Knight's request for notice "was the usua l procedure from all the attorney s" whenever someone contacted a n employee of the

crime lab. According to Gorajczy

k, Kirby, in his testimony to the grand jury , reported their discussion in ac cu ra te ly. Knight admit ted th at he re ceived a fair t rial, as a mem ber of t he DuP age 7, o n the c harge of obstru cting ju stice. He also admit

ted that th

e Tribune gener ally printed f air and a ccurat e1-06-0957

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reports of the trial, even when it printed the reports Possley wrote. The court permitted defendants to present to the jury a few publications concerning the convicti on of Cruz. A segme nt of "Am

erican Justice" included t

he following rep ort: "ThomasKnight k

nown as the black k

night fo r his har d charg ing sty le prosecu ted the c ase. *** [J]ust day s before trial the prosecu tion sudde

nly announced that Cruz had made a statement tantamount to a confession a y ear and a half earlier. Two Du Page County

detectives claimed that on May 9th, 1983, Cruz had told them a

bout a dre am he had

had. *** [T ]he drea

m revea led deta ils nearl y identical to the Nicarico murder ***. Cruz denied ever making the so-called 'vision statement.'

*** *** [T]he detectives did not tape record the alleged statement, did not take any notes, and did not eve n file a report; nor did they follow up on this key piece of eviden ce the ver

y next da y w hen t hey were taping an inter view with Cruz. * * * *** The case against Ste[v]en Buckley hinged on the boots he had handed

over so w illingly

to police . The pro secution paid $1,0 00 a day

to a fore nsic anthropo logist who testifie d that Bu ckley and only Buckle y c ould have

kicked in the front door of the Nicarico home.

***1-06-0957

-9- *** One mo nth befor

e trial [the ] Defense

Attorney [for Buc kley ] got a tip that a pr ior exper t who examined Buck

ley 's boots * ** had ruled them out as a match. Th

e sherif fs had actually

retriev ed the boots and instr ucted the [expert] not to file a report. A move that led the crime lab director to re sign. Prosecutors never told t he defense abou t that ini tial findi ng, a violati on of Illinois law." American Justice (A&E television broadcast). An article published in the Los Ang eles Times in 1992 emphasized different aspects of th e s to ry: "Ramon Mares came along. He and Cruz had been drinking *** late one night in March, Mares told [a] Detective ***. Cruz had turned emotional, had started sobbing. I know who killed the little girl in Naperville, Cruz had said. I know who did it. I was there. *** Years l ater, M ares wo uld i nsis t that Cruz hadn't reall y said, 'I was t here.' Years la ter, Mar es would te stify

that the D uPage p

rosecut ors had pr essured him into saying those wor

ds because that's what they wanted to hear. Years later, he

wo ul d e xp la in th at he 'd li ed ** * b ec au se he wa s i nt er es te d i n t he re wa rd mo ne y. To DuPag e County

Assistant State'sAttorney

Thomas Kn

ight in the late spring o f 1983, ho wever, Mares wa s the clinc her. Hig hly regar ded as a feroci ously

effec tive pros ecutor, Knight h ad gro wn close to the Nic arico f

amily and determined to find their daughter' s killer. He had done so, he now decided. Cruz, Hernandez and Buckley , out to do a burglary , had unexpectedly found a1-06-0957

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little girl at home. Jeanine could identify them, so they had killed her. *** Knight was positive. * * * And yes, they

had tied Ste[v]en Buckley' s boot print to the murder, but only after the

y'd shopped the print to three different experts before findingoneLouise Robbins, a North Carolina anthropologist with self-de scribed 'forensic' talents- willing to say the pr int on the Nicarico door was definitely Buckley 's. *** 'Louise Robbins arrives. This is the boot, she say s. That'll be $10,000. So now we have evidence.'" Barry Siegel, Presume d Guilty: An Illinois Murder Case Became a Test of Conscience Inside the System , Los Angeles Times, Nov. 1, 1992, at 18. When Knig

ht rested in rebutta

l, the cou rt enter ed judg ment in fa

vor of Ar mstrong due to the lack of evidence ty

ing Armstrong to the alleged de famation. In closing defe

nse counsel argued: "This 29-word needle is buried in a 5,000-word ar ticle and a 20,000-word series which was part of a massive media hay stack of negative publicity about Mr. Knight, and the needle didn't cause him any damage. *** I'm going

to go into *** Mr. Knight's reputation. *** Either he negligently

or knowingly pr

osecuted three innocent boy s -- MR. KNIGHT: Judg e, I

will object. THE COURT: Okay. Your objection is sustained ***.1-06-0957

-11- * * * *** Innocent people went to prison, some to De ath Row. *** It is important award-winning jour nalism and is shedding light on our societal problems so that people like Steve Buckley don't have to spend three ye ars in pr

ison when

they are inno cent. MR. KNIGHT: Object, y our Honor. *** THE COURT: Objection sustained." Kn ig ht as ke d t he co ur t t o i ns tr uc t t he ju ry: "The Cou rt has found that the stateme nt publishe d by

the defe ndants which is a

t issue in th

is case w as defa

matory per se, s o that is no t an issue you will need to decide. ***.

*** If y ou decide for the plaintiff on the question of liability , you must fix the amount of money which will re asonably and f airly compensa

te him for the following elementsof damag es: Past and future injury to prof essional and personal reputation; Past and future humiliation ***; and Past and future loss of income and business opportunity ." Th e c ou rt re fu se d b ot h i ns tr uc ti on s. Ins te ad , t he co ur t i ns tr uc te d t he ju ry: "The plaintiff has the burden of proving e ach of the following pr op os it io ns : F ir st , t ha t t he co mp la in ed of st at em en t w as fa ls e i n a ma te ri al wa y.1-06-0957

-12- Second, t hat the de fendant s publishe d the comp lained of statemen t with actual ma lice and that they either k new that t he state ment was f

alse or published it with a re ckless di srega

rd of whe ther the statemen t was true or not. Third, that as a result of the complained of statement, the plaintiff sustaine d actual

and/or pr esumed da

mages. * * * In order for y

ou to find that the defendants published the complained of statement with actual malice, the plaintiff must prove by clear and convincing evidence that the defendants either knew tha t the complained of statement was false in a material way

at the time of publication or that the defendants had a reckless disregard of whethe r it was true or false. ***

* * * If y ou decide for the plaintiff on the question of liability , you must fix the amount of money which will re asonably and f airly compensa

te him for the following elements of damages proved by the evidenc e or presumed to have resulted from the d

efamati on compla

ined of st atement. First, the impairment of plaintiff's personal and profe ssional reputation and st an di ng in th e c om mu ni ty. Secon d, th e perso nal hu mili ation and an guish and su fferin g. Third, the value of loss of inc ome and bu siness opp ortunitie s.

***1-06-0957

-13- Defamation per se is considered so obviously damaging that damage s are presumed. *** However, the presumption may be overcome or limited by evidence." The cour t also ask ed the jur y to answer the following special inter rogato ries: "Do you f ind by clear a

nd convincing evidence that the complained of statement was published with actual malice by the Chicago Tribune Company and Ma ur ic e P os sl ey? * * * *** Do you find that the following complained of statement was defamatory

of Thomas Knight? 'Gorajczy k told the DuPage grand jury that Knight to ld him to kee

p his mouth s hut about h

is conclu sion and not to tell anyone th at the re was n o writ ten rep ort.'" The jury re

turned a verdict in favor of defenda nts. The jury found, by

special verdict, that defenda nts did not d

efame K night. F urther, Knight f

ailed to p rove tha t defend ants act

ed with actual malice. In his motion for a new trial, Knight a rgued that the trial court erred in admitting e vidence of prior negative publicity and in rejecting Knight's proposed instructions on damages. The trial court defended its damages instructions and the decision to permit evidence of prior negative publicity as mitigating K

night's claimed damages. The court also held that the alleged errors ha d no effect on the result because the jury , by special interr ogatory , found no actual malice, and therefore the jury

had no reason to consider the question of damage s. The court denied the1-06-0957

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motion for

a new tri al. Knig

ht now app eals.

II. AN ALYS IS Again, on appea

l, Knigh t argue s that the c ourt commi tted rev ersible e

rror whe n it admitted evidence of prior negative publicity regarding the prosec

ution of Cruz. We will not

revers e a jury

verdict because of erro r in an ev identiar y r uling unl ess the tr

ial cour t abused its discretion and the ruling prejudiced the appellant. Taluzek v. Illinois Central Gulf R.R. Co. , 255 Ill. App. 3d 72, 83 (1993). The appellant be ars the burden of establishing prejudice. Smith v. Baker's Feed &

Grain, Inc. , 213 Ill. App. 3d 950, 952 (1991). Knight claims that the court's evidentiary ruling here conflicts with Myers v. The Telegraph , 332 Ill. App. 3d 917, 924-25 (2002). The cour t in Myers rejected the "incrementalharm doctrine," which "bars recovery f or any fa lse and defamatory

statements whose potential damaging eff

ect is outw eighed , as a mat ter of la w, by other ha rmful, bu t true, te xt in the same publicati on." Myers , 332 I ll. App. 3d

at 924. Kn

ight re ads Myers as authority for ba rring any evidence of the plaintiff's reputation, whene ver the plaintiff has stated a cause of action for defamation per se . In e

ffect, he arg

ues that th

e law en titles eve ry such plaintiff to a

n irrebu ttable presumption of damages. We do not believe the holding of Myers reaches so far. Creating suc h an irrebuttable presumption, and disallowing all evidence of the plaintiff's reputation, would set Illin ois law fa

r from the law of oth

er jurisd ictions, a s most state s permit de fendant s to prese

nt, in mitigation of damages, evidence of the plaintiff's reputation before the alleg ed defamation. See, e.g. , Martin v. Roy , 54 Mass. A pp. Ct. 642, 646, 767 N .E.2d 603, 607 (2002 ); Gosden v. Louis , 116 Ohio A

pp. 3d 195, 215-16, 6 87 N.E.2d 481, 494 ( 1996); McBride v. New Braunfe ls Herald-1-06-0957

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Zeitung , 894 S.W.2d 6 , 9 (Tex. Ap p. 1994); Williams v. D istrict Cou rt, Second Judicial D istrict, City & County

of Denver , 866 P.2d 90 8, 911-12 (Colo. 199 3); Guccione v. Hustler Magazine, Inc. , 800 F.2d

298, 303- 04 (2d Cir. 1986); Marcone v. Penthouse Inter national Magazine for Men , 754 F.2d

1072, 1079(3d Cir. 19 85); Gobin v. Globe Publishing Co. , 229 Kan. 1, 5-6, 620 P.2d 1163, 1166-67 (1980). However, we need not address the re ach of the holding in Myers . The jury her e found, by special verdict, that Knight failed to prove actual malice by cle ar and convincing evidence. Tha t finding alone, apart from any finding on damages, mandated a judg ment in favor of defendants. See Wanless v. Rothballer , 115 Ill. 2d 158, 171-75 (1986). The neg ative publicity evidence had no bearing on the issue of actual malice. Knight maintains that the negative publicity evidence so thoroughly

prejudiced him that the jury could not weig

h the evidence of malice impartially . Possley, a vetera n reporter, knew that he read only

the grand jury

transcript of Kirby 's testimony. Possley never contacted Gorajczyk to verify

the report of what Knight said to Gorajczy k. Possley never asked Knight about what Knight said to Gorajczy k. Possley rephrase d Kirby' s testimony that Knight said "not to discuss" the matter, and wrote instead that Knight told Gorajczy k to "keep his mouth shut." In opposition to this evidence, defendants offe red only the testimony

of Possley and other editors about the discussion that led to the introduction into Possley's dra ft of the phrase, "Gora jczy k told the g

rand jur y." Possley

testifie d that whe

n he acc epted the

chang e he simply forgot that he had read Kirby 's testimony and Gor ajczyk had not spoken to the g rand jury. Poss ley defend ed his use of the ph rase "k eep hi s mou th sh ut" as a n accur ate par aphras e of Ki rby's1-06-0957

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testimony. Possley

and all the editors testified that when they published the article they believed in the truth of every

assertion therein. They

did not entertain any se

rious doubts about any of the statements in the article. As author ity f or reve rsal her e Knigh t cites Wh it e v. Gar lo ck S eal in g Te chn ol ogi es, LLC , 373 I ll. App. 3d

309 (2007 ). In

that cas e the jur

y r eturned a gene ral ver dict for t he defe ndant, supported by a special verdict that the defendant's products did not proximately cause the plaintiff 's dec edent to c ontract

asbestos is. The jur

y a lso found, by s pecial v erdict, that asbe stosis proximately caused the dea th. In a posttrial motion the plaintiff argue d that the testimony of the defendant's expert violated discovery rules. The expert testified at trial that the decedent did not have asbestosis at all. That testimony directly conflicted with the e xpert's deposition testimony. The trial court found that the undisclosed opinion prejudiced the plaintiff, despite the specia l verdict in which the jury

apparently r

ejected the expert's testimony , as the jury found that the decedent had asbestosis, and that disease caused his de ath. The trial court granted the plaintiff a new tria l. The appellate court affirmed the awa rd of a new trial. The appellate court explained: "[W]e agree with the trial court's determination that [the] new opinions *** were so potentially prejudicial that g ranting *** a new trial was entirely appropriate. When, as here, a jury

has heard improper evidence, a trial c ourt always possesse s the authority to awar

d a new trial to the injured party , no matter what special finding s the jury

may have mad

e. The tr ial cour t is in the be st position t

o determine to what extent the improper evidence may have affected the decisions1-06-0957

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of the jury, includ ing any special findi ngs." White , 373 Ill. App. 3d at 328-29. Here the trial court found that any error did not affect the special verdict. While the negative publicity

here might have affecte

d Knight's credibility , it apparently would not af fect the credibility of Possley

and the editors. Knight's testimony had no bearing on the issue of actual malice, which turned primarily on the credibility of Possley and the editors. We defer to the trial court's finding, from its superior perspective, that any evidentiar y error relating to the negative publicity made no differ

ence to the result of the trial. Because Knight has not met his burden of proving prejudice, we will not reverse the judg ment on the basis of the evidence of nega tive pu bl ic it y. Knight contends that defense counsel' s comments in closing argument require re versal. Defens e counse

l pointed out that the

prosecu tion of Cru z, Herna

ndez and B uckley

kept those men, innocent of the charges ag ainst them, in prison for year s. The trial court promptly sustained Knight's objections to those comments. Usually the trial court can cure any potential error by promptly sustaining appropr iate objections. See Simmons v. Garces , 198 Ill. 2d 541, 567 (2002). Moreove r, as the comments d

id not conc ern the i ssue of a ctual mal ice, we see no re ason to believe that they a

ffected the result of the trial. See Simmons , 198 Ill. 2d at 566-67. Again, we find no reversible error. The refused instructions provide grounds for Knig ht's third argument for rever sal. The trial court has discretion to decide on jury instructions. Dillon v. Evanston Hospital , 199 Ill. 2d 483, 505 (2002). The court abuses its discretion if it gives unclear or misleading instructions or if the instructions do not fairly and c orrectly state the law. Dillon , 199 Ill. 2d at 507. We will not1-06-0957

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reverse the judgment based on err oneous instructions unless the error prejudiced the appellant. Schultz v. Northeast Illinois Regional Commuter R.R. Corp. , 201 Ill. 2d 260, 274 (2002). Knight offered an instruction that would have informed the jury that the judge

found defendants guilty

of defamation per se . The judg e refus ed the ins truction b ecause he had he

ld only that Knight stated a

cause of action for defamation per se . The judge had not usurped the jury's f unction of deciding whether the words had de famatory e

ffect. See Chapski v. Copley Press , 92 I

ll. 2d 344, 3 52 (1982) . The judg e also re fused the instructi on Knigh

t offered on past and futur e damag es. The challenged instructions do not relate to the finding that Knight failed to show actual malice. Because Knight' s proposed instructions would not alter the dispositive finding of no malice, the alleged instructional error c annot justify rever sal here. See Beiermann v. Edwards , 193 Ill. App. 3d 968, 981 (1990). Finally, Knig

ht suggests that the law should change to permit him to prevail without clear and convincing e

vidence of actua l malice. He ackn owledg es that the standar ds enunc iated in New York Times Co. v. Sullivan , 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), still bind this court. We continue to adhere to binding precedent. Knig ht has preserved the issue for further review. All of the alleged errors Knig ht found had no bearing on the issue of actual malice . The jury found by

special interrogatory

that Knight failed to prove, by clear and convincing evidence , that Possley acted with actual malice. That finding demands judgment in favor of defendants. Because the allege d errors did not affect the dispositive finding, we af firm the judgment of the1-06-0957

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trial cou rt. Affirmed. NEVIL LE, and CAMPBEL

L, JJ., concur.1-06-0957

-20- REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) THOMAS KNIGHT, Plaintiff -Appella nt, v. CHICAGO TRI

BUNE COMPANY, a corporation, MAURI CE POSSLEY and KEN ARMSTRONG, Defend ants-App ellees.

Nos. 1-06-0957 Appella te Cour t of I llinois First District, THIR

D Division September 10 , 2008 (Give month, day

and yea r)

PRESI DIN G JUSTI

CE MUR PHY de livere d the op inion o f the court: Neville and Cam

pbell, JJ., concur [s] dissent[s] Lower Court and T rial Judge(s) i n form indicated in t he margin: Th e H ono rable Robert E. Gordon, , Judge Presiding. Indi cate if

att orney repre sent s APPELLANTS or APPELLEE S and i nclu de att orney s of

couns el. Indi cate the word NONE if n ot re prese nted. Attorne y for Plaintiff-Appellant : William L. Bow ers 4170 N. M arine Drive Chicago, I

L 60613 Phone: (773) 525- 2192 Attorne ys for Defendants-Appellees: H. Patrick Morris, David M. Macksey Johnson & Bell, Ltd. 33 W. Monroe St., S uite 2700 Chicago, I

L 60603 Phone: (312) 372- 0770-andCharles L. Babcock

, Nancy W. H amilton Jackson Walker LLP 1401 McKinney, Suite 1900 Houston, TX 77010 Phone: (713) 752-4200 Please Use Following Form: Complete TITLE of Case

Docket No. COURT Opinion Filed

JUSTICES

APPEAL from the Circuit Ct. of Cook County, Chancery Div.

For APPELLANTS, John Doe, of Chicago. For APPELLEES, Smith and Smith of Chicago, Joseph Brown, (of Counsel) Also add attorneysfor thirdparty appellants or appellees.