Deliberation or Repetition? Palin Jury Knew the Judge Was Going To Dismiss the Case Before its Verdict

There is a major development in the Sarah Palin defamation case where a jury recently rejected her claims against the New York Times. The case had a curious profile because the judge sent out the jury to deliberate and then announced that, while he would let them reach a verdict, it would not matter: he would dismiss the case anyway. I wrote in the Hill that this move worked to insulate the judge’s own decision. If the jury came in with a verdict against Palin, that fact finding would be more difficult to overturn. Now, however, Judge Jed Rakoff has disclosed that the jury found out about his intended dismissal before they reached a verdict. That is a major problem and could substantially change the impact of the case on appeal. In this case, Judge Rakoff effectively supplied both the instructions and the answers for the jury.

We have previously discussed the trial, which began with the introduction of evidence that the New York Times editorial board ignored internal objections to publishing the 2017 column linking Palin to the 2011 shooting in Tucson, Arizona in which then-U.S. Rep. Gabrielle Giffords, D-Ariz was seriously injured.

The case concerns an editorial by the New York Times where it sought to paint Palin and other Republicans as inciting the earlier shooting.  It stated that SarahPAC posted a graphic that put Giffords in crosshairs before she was shot. It was false but it was enough for the intended spin: “Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.”

The editorial was grossly unfair. In its earlier ruling against the Times, the court put the theory of the case succinctly in its leading line: “Gov. Palin brings this action to hold James Bennet and The Times accountable for defaming her by falsely asserting what they knew to be false: that Gov. Palin was clearly and directly responsible for inciting a mass shooting at a political event in January 2011.”

Rakoff was previously reversed for dismissing the case. While Rakoff rejected motions to dismiss the case before trial, he made his surprising declaration just after the jury left to deliberate. It was a baffling decision. He could also have granted a motion for dismissal before the jury was set to deliberate on the evidence presented at trial. He could have waited for the verdict and tossed the case notwithstanding the verdict on a motion to set it aside from the defense. Instead, he created this weird status where the jury was ruling on a case that he announced was effectively dead.

Some jurors learned that Rakoff had already determined that, in his view, Palin did not meet the standard set by the Supreme Court for public figures. They were deliberating that very question and now had the view of the court that the “actual malice” standard was not satisfied in the case. While the jurors insisted that it did not effect their judgment, I cannot imagine how it did not.

Lawyers are often barred from juries because of the fear that they would have too much influence on a jury. In this case, the judge effectively parachuted into the middle of the jury room with his own conclusion.

The judge had just given them instructions on the actual malice standard and was now giving them the proper conclusion to reach on that question: how could that not render the verdict invalid?

Palin should move for the verdict to be set aside and allow the appeal to go forward on the judge’s ruling alone. That is a much better appellate posture for the plaintiffs. It would also make the case a serious potential challenge to the application of the actual malice standard to public figures. That is the subject of my USA Today column this week.

There are members of the Supreme Court that have already expressed discomfort over the standard being applied to public figures as opposed to public officials. There are good-faith concerns over that extension of New York Times v. Sullivan. However, the jury verdict made the case less compelling as a clean challenge. It would now remove that added baggage if Rakoff proceeds to dismiss the case without a verdict.

I do not see the alternative to setting the verdict aside but, in the very least, it has added a significant appellate issue. Palin could just walk away, of course. Litigation is costly. However, this could dramatically change the trajectory of the case on appeal.

95 thoughts on “Deliberation or Repetition? Palin Jury Knew the Judge Was Going To Dismiss the Case Before its Verdict”

  1. So to put it in perspective When In New York the charge is automatically not being socialist and in being a Constitutionalist or not in being socialist but in being a Clintonist. But then it, NYC is pro socialist when it elects a Representative with a minority and ignores a Governor and Mayor who are guilty of killing off it’s old people.

  2. Palin Gave ‘Lackadaisical’ Performance

    Speculation Centers On ‘Who’ Funded Suit

    Sarah Palin’s libel suit against the New York Times, filed four-and-half years ago, was decided against her two ways this week. The jury rejected her claim, which the judge had already dismissed,

    But the matter is far from over. Palin has signaled she might exercise her right to appeal. When Palin’s attorneys prepare their briefs we might learn why she sued in the first place. Because nothing in her three-and-a-half hours on the stand provided much of a clue. What gives in a case that may have cost Palin $2 million in legal fees?

    If you listened to the livestream, you can’t help but notice Palin’s lackadaisical performance. Slate’s Seth Stevenson’s report described her as starting out strong, but then faltering into those “looping, meaningless sentences Palin is noted for”. Reuters found Palin “struggling to provide specifics”. ”NPR’s David Folkenflik wrote, “Palin was a less-than-commanding witness.”

    Could it be that she’s just not that personally invested in the case? Court-watchers noted from the outset that Palin’s lawyers were the same team that helped win Hulk Hogan a $140 million jury verdict against Gawker. As was later revealed, the case had been financed by billionaire Peter Thiel.

    Charles Harder, the superstar attorney who worked on the Hogan case, attended the Palin trial. Slate’s Stevenson asked Harder if he knew who was paying the legal bills. “Harder said he didn’t know and was only there to observe.”

    Edited From:

  3. “Strange game. The only way to win is not to play.”

    But what if you are forced to play, like a gladiator that is forced to fight for his life?

  4. George Carlin was wrong. Sometimes it is women who fight for their own interests, not just the interests of old men. He was wrong about a lot of things, actually.
    I don’t see why he is so admired.

  5. The case cannot be used to overturn SULLIVAN. The Court will settle on granting a new trial because Rakoff essentially nullified any verdict at all when the jury knew of his dismissal. It’s a way out instead of revisiting precedent. But SULLIVAN is on a ticking clock anyway.

  6. Why have a jury at all if a judge is just going to overturn their verdict if it goes a way he doesn’t like.

    That’s a legitimate and objective question. In other words, that’s a Conservative question. Liberals aren’t concerned with the 10,000 foot view of our justice system. They merely consider the results and rationalize the outcome.

  7. Jonathan: Oops and oops! There is even more breaking news about Trump’s legal troubles. NY AG Letitia James is asking a judge to enforce a subpoena to require Trump to sit down for a deposition in her investigation of Trump’s finances. In a court filing on Monday Trump’s attorneys replied to the subpoena by saying Trump “denies knowledge or information sufficient to form a belief as to the truth” about the company’s finances. This is typical lawyer language when the client wants to play dumb. On Tuesday Trump issued a 1,100 word statement in response to his accounting firm’s decision to drop him as a client. In his statement Trump claimed his company “has among the best real estate and other assets in the world, has significant amounts of cash, and has relatively very little debt, which is totally current”. James’ office responded by saying “…it is truly rare for a party to publicly disagree with the statements submitted by his own attorneys in a signed pleading–let alone one day after the pleading was filed”. Trump is his own worst enemy. He just can’t resist running his mouth. His attorneys must be livid! This is the truly exciting litigation going on that you choose to ignore in favor of Sarah Palin’s sad saga. You are missing the forest for the trees!

    1. Dennis McIntyre was one of those people who said. “The walls are closing in on Trump” when Mueller began his investigation. Then he was so excited about the upcoming proof of criminality that would arise from RussiaGate. He was overjoyed when Adam Schiff said that he had seen proof in writing that Trump was a Russian agent. Dennis must have been at home playing video games when the lesson at elementary school was about the little boy who cried wolf. Remember after a while no one would believe the little boy anymore. A little known fact is that the little boy was named Dennis.

      1. Thinkitthrough: Did I say that about the Mueller investigation? Don’t recall. But if I did you are spending way too much time keeping track of my comments. And if you knew how old I am you would know I couldn’t have played “video games” in elementary school. They didn’t exist then! You remind me of one kid who used to taunt me at elementary school: ” My dad can beat up your dad!” My reply? “That’s nothing, so can my old lady!” Took the wind out of his sails.

        The only reason Mueller did not charge Trump with obstruction was because the OLC told him he could not indict a sitting president. All the elements of obstruction were there. In House testimony Mueller said: “We did not reach a determination as to whether the president committed a crime”. Mueller was also asked: “Do you believe the President could be charged with obstruction of justice after he left office?”. Mueller replied: “Yes”. Which means Mueller and his staff believed Trump could be charged but for DOJ policy. So Trump managed to escape justice through the cracks in the “walls”. Now Trump faces more serious legal problems. He may be forced to sit down and be deposed in the Latitia James investigation looking into tax and banking fraud by the Trump organization. That should prove very interesting because he can’t rely on Mazars USA to back up his financials. In the same investigation Eric Trump invoked the 5th Amendment over 500 times in his deposition. Allen Weisselberg, Trump’s CFO, took the 5th hundreds of times in his deposition. That’s because the Trump mafia clan could face criminal liability for lying. I wouldn’t be surprised if Trump sets the all time record for invoking the 5th. He doesn’t want to be outdone by his son. Ever the narcissist.

        So unless you are prepared to discuss facts don’t bother me with “little boy” analogies. It only makes you look infantile.

    2. Dennis McIntyre,

      It looks like the judge will rule trump must sit for a disposition.

      This is an exchange with Trump layers and the judge.

      “ Habba argued that the probe of Trump is unconstitutional and should be thrown out —even if James’ office has evidence of wrongdoing.

      “It’s per se invalid,” Habba said of the investigation. “It doesn’t matter if they find all sorts of incriminating evidence.”

      “The evidence is irrelevant,” Habba said at another point”

      “ Habba also argued that Trump is a member of a “protected class,” citing his exercise of political speech as president.

      That legal designation is applied to groups who qualify for special protections against discrimination.

      “If he was not who he is, she would not be doing this, your honor,” Habba said. “That’s what my argument is.”

      But Engoron shot back, “He’s not a protected class.”

      The judge added that even if James has a grudge against Trump, that does not amount to “unlawful discrimination.”

      It’s very likely trump will have to be deposed for sure. Wow, he’s a “protected class”.

      Turley should be all over this. Especially when Trump’s lawyers are claiming he’s a “protected class”.

      1. Update, Trump must testify under oath in NY AG investigation. Looks like Trump may be pleading the fifth…repeatedly. Sounds like…guilty perhaps?

        1. guilty perhaps?
          Guilty of what? Still waiting for some person to quote a statute. I’ve heard James interviewed numerous times. She never cites a crime.

          1. If you’d been paying attention, you’d know that the state investigation is a civil investigation, not a criminal investigation. If you cannot even keep track of such a basic fact, perhaps you’re not really listening to the interviews you claimed to have heard.

            1. Listen to this guy. He must have a pretty bad ego problem to act the way he does. Is he short, impotent, or clumsy? What is it with this guy?

              1. He said “I’ve heard James interviewed numerous times. She never cites a crime.” That’s because the AG’s investigation isn’t a criminal investigation.

                iowan2 is “waiting for some person to quote a statute” instead taking a minute to do an extremely easy internet search himself to find what civil infractions she’s investigating. He could start by looking at the relevant documents on the NY AG’s website about it.

    3. The judge ruled this afternoon, ordering Trump, Ivanka, and Don Jr. to sit for a deposition within 3 weeks and to turn over some documents.

      1. Anonymous, that’s a LOT of documents presented to quash subpoenas. Just looking at the sheer number of documents gives a sense of desperation.

  8. More of Turley’s pearl-clutching: “That is a major problem and could substantially change the impact of the case on appeal. In this case, Judge Rakoff effectively supplied both the instructions and the answers for the jury”. While I agree that it shouldn’t have happened, the jury finding out about the ruling is a nothingburger,Turley, and you DO know better. The bottom line of the equation is that Palin couldn’t prove actual malice and damages, which are two key elements of her burden of proof under the Sullivan standard. The NYT promptly printed a retraction and apology, but Palin sued anyway. Without being able to prove actual malice and damages, she couldn’t win anyway, but maybe that’s not why this case was filed in the first place. Many believe this was simply a vehicle to get the Sullivan case overturned since the Court was packed with radical conservatives thanks to the election cheater and McConnell. But, Turley, you should advise your employer about what the impact of overturning Sullivan would mean for their factually-deficient reporting and attacks on Democrats. If proving actual malice is no longer the standard, they’ll be in real trouble going forward. But, another reason for filing this case was the added bonus of taking yet another crack at non-pro-Trump media, especially the NYT, all part of the indoctrination process for the disciples.

    1. Natacha, you think that a judge telling a jury that no matter what they find he will still dismiss the case is a nothing burger. Natacha and the Queen of Hearts hold the trial of the accused. Natacha very often hollers “Off with their heads”. Cartoonish.

      1. It’s not going to change the simple fact that Palin couldn’t prove either actual malice or damages. The judge didn’t tell the jury about his ruling, either. One or more of the jurors got a “push notice” on their cell phone that told them about the ruling. Juries are usually instructed NOT to look at their phones during deliberations.

        1. Now Natacha blames the jury for finding out what the judge says. Maybe Natacha should be more concerned with the judge keeping his big mouth shut. Otherwise, excuses everywhere.

          1. I’ve never seen a case in which a Judge failed to tell the jurors NOT to look at television, listen to radio, or read online or hard-copy newspaper writings about the trial they are involved with. The jurors should have silenced or turned off their phones, but it appears that one or more of them failed to do so. In any event, the Judge did NOT tell them about his ruling, so stop criticizing him.

    2. Natacha, it’s not good to talk about pearl clutching when you own an oyster farm.

  9. Many Democrat judges do not feel bound by the law or judicial ethics. They place their ideologies first and their ability to judge fairly second. We have seen that before in places like Nazi Germany and Stalin’s Russia.

  10. This judge is amazingly stupid. He thinks he’s doing great by sucking up to his leftist friends but he has only provided evidence of a prejudiced court. He would have been smarter by just keeping his mouth shut. It makes you wonder what they’ve got on him. Just sayin?

  11. Case 1:11-cv-07387-JSR US Securities and Exchange Commission v. Citigroup Global Markets Inc. Honorable U.S. District Judge Jed Rakoff.

    The New York Times in June 2014 wrote about the above case that Judge Rakoff was something of a celebrity for refusing a settlement agreement between the parties for $285 million. Rakoff reasoned he had no way to know if the terms of the agreement were fair. Rakoff’s ruling was appealed by both parties and the appeals court said Rakoff had overstepped his authority, and concluded convenience of consent agreements trump whatever might be found at trial. Further stating “It is not within the district court’s purview to demand cold, hard, solid facts established either by admissions or by trial”., and “The job of determining whether the proposed SEC consent decree best serves the public interest, however, rests squarely with SEC, and its decision merits significant deference.”

    The above suit and outcome in my opinion illustrate Judge Rakoff’s mindset, bias and conceit of his superior thoughts about the law, and may clarify his most recent (statement/rulings) in Palin v. Times.

    Whether he will be overturned again in the Palin issue is of question, as both parties have at lot of negative baggage in the public’s perception, which might sway the Courts opinion regardless of the merits.

    1. You are correct George. This judge is a dumb smart guy. He makes bad decisions but he knows who pays for his mansion and his Cadillac car. Gonna buy you a Cadillac car. Gonna buy you a Cadillac car. Gonna buy you a Cadillac. Buy you a Cadillac. Buy you a Cadillac. If you just gimme some of your love yeah yeah yeah. Just gimme some of your love sweet baby. Just gimme some of love. Just gimme some of your looove..

  12. Jonathan: Oops! I forgot to mention another lawsuit indirectly involving Trump. The 10th District Court of Appeals just upheld a lower court ruling that requires “Cowboys for Trump” to register in New Mexico as a political organization. Couy Griffin, the founder of “Cowboys for Trump” and a local county commissioner, had sued to prevent disclosure of his contributors. This decision means Griffin will have to register and pay a fine of $7,800. Griffin is facing other legal troubles. He took part in Trump’s Jan. 6 insurrection and is facing misdemeanor charges. Will Trump come to Griffin’s defense and pay his legal fees and the fine? Sorry, Couy, Trump has his own legal troubles.

    1. Dennis McIntyre, you left out the part that said that Griffin stood on a terrace at the capitol building and lead the crowd in prayer. Why didn’t you just post the the link so we could get the complete story. It’s ok, I’ll post it for you. . He must have been violently praying. Of course we are not surprised that you see the act of prayer as violence.

  13. Why have a jury at all if a judge is just going to overturn their verdict if it goes a way he doesn’t like. It’s right out of Alice in Wonderland. Verdict first and then we have a trial. Another liberal judge sucking the hind teat. You know, the one closest to the anus. Welcome to the leftist U.S. of A.

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