We should’ve seen this coming.
On Monday, the judge presiding over Sarah Palin’s libel trial against The New York Times announced he was going to toss out the jury’s verdict because Palin had not proven her case that the Times acted with “actual malice.” But Judge Jed Rakoff announced that decision while the jury was still deliberating, and he allowed it to continue to work its way toward a verdict. He even acknowledged at the time that he was going to let the jury continue with its deliberations.
“I certainly considered the possibility that I should wait until after the jury had rendered its verdict in this case,” Rakoff said on Monday, “but the more I thought about it over the weekend, the more I thought that was unfair to both sides. We’ve had a very full argument on this; I know where I’m coming out.”
Rakoff said he wanted potential appeals courts to hear what a jury said in this case, as well as his ruling.
By the end of that day — again, this was Monday — the jury had not reached a verdict and Rakoff let them go home for the day.
Now here’s the part we should’ve seen coming: Despite the judge telling them to avoid coverage of the trial, members of the jury did find out that Rakoff was planning on throwing out the verdict.
Rakoff wrote in a two-page order on Wednesday, “These jurors reported that although they had been assiduously adhering to the Court’s instruction to avoid media coverage of the trial, they had involuntarily received ‘push notifications’ on their smartphones that contained the bottom-line of the ruling.”
Rakoff said the jurors, who returned a unanimous verdict in favor of the Times on Tuesday, assured him they were not impacted by Rakoff’s decision.
Is that true? Was the jury unaffected by the judge’s ruling? It’s impossible to say, although it should be noted that the jury did continue to deliberate for part of the day Tuesday before coming to a final verdict.
But this could come up when Palin’s team appeals this case, as they have already indicated that they will do. But, under New York law, Palin can’t challenge the jury’s unanimous verdict.
NBC News’ Corky Siemaszko wrote, “So, Palin would have to try her luck with the 2nd U.S. Circuit Court of Appeals, perhaps arguing that the jury instructions misstated the law, the experts said.”
Media lawyer Ryan Cummings told Reuters’ Jan Wolfe that that court has historically been reluctant to second-guess determinations reached by jurors.
Might this ever end up before the Supreme Court?
George Freeman, who heads the Media Law Resource Center in Manhattan, told Siemaszko, “She can try but it’s extremely unlikely they would take her case. They have bigger fish to fry, such as likely overturning established law in Roe versus Wade, so I think the court would be loath to upset long-standing precedent in a second area.”
That second area Freeman is talking about is the landmark The New York Times v. Sullivan case that established a high standard of actual malice. It should be noted that two Supreme Court Justices — Neil Gorsuch and Clarence Thomas — have suggested they would like to revisit that case.
Would other justices be interested in messing with something as sacred as freedom of speech? That’s less clear.
Then again, there’s also this: Andrew Koppelman, the John Paul Stevens professor of law at Northwestern University, told Siemaszko, “(Palin has) already publicized a narrative that the Times was sloppy with facts, and maybe that’s all she wanted.”
This piece originally appeared in The Poynter Report, our daily newsletter for everyone who cares about the media. Subscribe to The Poynter Report here.
