The Palin Trial: It Ain’t Over ‘Til It’s Over

The federal district court jury hearing the defamation trial against The New York Times brought by Sarah Palin, the former Governor of Alaska, reached a verdict that the New York Times was not liable. Case over? Not quite.

While the jury was deliberating, the presiding Judge Jed Rakoff issued an order dismissing the case. He ruled, additionally, that he would allow the jury to continue to deliberate and reach a verdict which would be a basis for an appeal by Palin if the jury found in her favor against the New York Times. In an article jurors receive push alerts of judge’s ruling, it was disclosed that several of the federal jurors who rejected Sarah Palin’s defamation lawsuit against the New York Times received “push notifications” on their phones informing them that the judge had dismissed the case a day earlier.

An excellent summary of the case to date is presented in an article by Paul Mirengoff posted on Powerlineblog.com, Judge Tosses Palin Case. Mirengoff also addresses an evidentiary ruling by Judge Jed Rakoff not presented in the many other blogs and posts I have seen. Judge Rakoff’s ruling is perplexing and may illustrate a bias that could cause an appellate court to reverse the Judge Rakoff’s ruling and the jury’s finding.

Judge Jed Rakoff has ruled that Sarah Palin’s libel suit against the New York Times over a 2017 editorial that falsely said she incited violence against Gabby Giffords and others fails due to lack of evidence that the Times knew what it wrote about her was false or that it acted recklessly in publishing the editorial. Judge Rakoff will allow the jury, which is in its second day of deliberations, to reach a verdict. That way, if he’s reversed on appeal based on the current legal standard for suits against public figures, and the jury finds for Palin, he can enter a verdict in her favor.

Mirengoff acknowledges that he didn’t follow the trial closely enough to know whether Rakoff is correct in concluding that Palin didn’t present evidence sufficient to allow a jury to find that the Times acted illegally under the stringent standard applicable when public figures are sued for defamation. I’m confident, as Rakoff said he is, that Palin will challenge that standard on appeal.

The standard was set by the Supreme Court. Thus, that Court would have to take the case and change the law. Two Justices — Gorsuch and Thomas — have indicated their willingness to revisit the issue, but it will take four to have the Court hear the case and five for Palin to prevail.

Mirengoff then proceeded to make a point about one of Judge Rakoff’s evidentiary rulings. According to this account, Judge Rakoff excluded evidence that the editor responsible for including the defamatory material, James Bennet, is the brother of Sen. Michael Bennet whom Palin attacked when he ran for the Senate. “There might be a sound basis for this evidentiary ruling. I haven’t seen a report of Rakoff’s reasoning. However, the ruling seems questionable to me. Why isn’t evidence that James Bennet may have had it in for Palin for personal and/or political reasons relevant to the question of malice?” Mirengoff adds: “On the witness stand, Bennet explained his mistaken attack on Palin with a shaggy dog story about how he initially looked for an instance in which a liberal politician incited violence but somehow ended up with an instance in which a conservative politician didn’t. Or something.”

“The jury might believe Bennet’s story,” Mirengoff added. “On the other hand, it might believe that Bennet wanted to attack Palin for personal and/or political reasons, and that’s why he didn’t perform the minimal work required to fact check what he wrote. (“Too good to check,” in effect.) Evidence that Palin attacked his brother, if the Times editor knew about this, might cause a jury to believe the second, more culpable story.”

The jury reached its verdict in favor of the New York Times. “Late yesterday, in the course of such an inquiry in this case — in which the jury confirmed that they had fully understood the instructions and had no suggestions regarding jury instructions for future cases — several jurors volunteered to the law clerk that, prior to the rendering of the jury verdict in this case, they had learned of the fact of this Court’s Rule 50 determination on Monday to dismiss the case on legal grounds,” Rakoff wrote in a two-page order on Wednesday. Also, Judge Rakoff wrote that the jurors told his clerk that his ruling did not factor into their deliberations.

How could a person presumably as intelligent, informed and worldly as a federal district court judge is supposed to be not know that jurors would learn of his ruling or that there was an articulable risk that they or any of them would learn of his ruling? Was the Judge naïve, foolish or perhaps manifesting something deeper by believing his order of dismissal would not be discovered? In the words of the late great movie mogul, Samuel Goldwyn, “I can give you a definite maybe.”