“A Bit Unusual”: Federal Judge Rejects Palin Motion For New Trial

Senior U.S. District Judge Jed Rakoff has issued a stinging rebuke to former Alaska Gov. Sarah Palin in seeking a new trial. A new trial was unlikely given Rakoff’s ruling that he would dismiss the case regardless of the verdict of the jury. However, in my view, Rakoff made an utter mess of this case and this decision will only magnify the novel issues for appeal.

We previously discussed how the Palin case could present one of the most consequential challenges to current defamation rules in decades.

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.

Rakoff doubled down in his most recent decision. He notably admits that his motivation in allowing the jury to rule was, as suggested in the earlier column, an effort to insulate his own decision:

“…the Court could have simply entered final judgment in defendants’ favor and dismissed the jury. Instead, however, the Court, while announcing its decision, explained that it would allow the jury to continue its deliberations, so that, if the Court of Appeals were to disagree with the Court’s determination to dismiss the case as a matter of law, the appellate court would not have to send the case back for trial, since it would have the benefit of the jury’s verdict. Moreover, as a technical matter, the Court could then issue its Rule 50 judgment, post-verdict, pursuant to Rule 50(b). While this approach was a bit unusual, neither side objected to it in the slightest.”

Palin’s counsel should have clearly objected to the continuation of the jury deliberations in my view, as I said at the time.  However, counsel insisted that it did object. The judge raised the pending Rule 50 motion and stated his intention to let the jury continue to reach a verdict. Counsel objected to the motion. Judge Rakoff, however, insists that he construed the objections as challenging the merits of the dismissal and not the novel procedure. It is clearly an attempt to argue that counsel did not preserve any objection for appeal — another effort to insulate his controversial ruling on appeal.

While Rakoff describes his handing as “a bit unusual” and the resulting issues as “procedural necessities,” he has shown extremely poor judgment in the case (including the decision leading to his prior reversal by the Second Circuit). It is clear that his view of the case did not change when it was returned to him by the appellate court.

I do not disagree with Judge Rakoff that, given his own ruling, there is no need for a new trial. He has already declared that it would not make any difference to the outcome in his view.  The court goes through a methodical presentation of the evidence and explains how it does not meet the actual malice standard.

The problem is his refusal to set aside the jury verdict. It is chilling to have a judge say that such a verdict remains valid despite the jury learning that the judge already ruled on the merits. It is frankly absurd.

Yet, Rakoff blissfully brushes such concerns to the side.

“Although the Final Judgment ultimately rests on the Court’s dismissal of the action under Rule 50, that legal conclusion is reinforced by the jury’s verdict that defendants are not-liable. The Court continues to have great confidence in the integrity of the jury’s verdict, notwithstanding that a few jurors became aware, involuntarily, of the bare fact that the Court intended to dismiss the case as a matter of law.”

His opinion restates his “firm view” that the jurors’ awareness that he dismissed the case “did not nullify the jury’s verdict in any respect.” Again, it is clearly that his view had not changed one iota since he was reversed by the Second Circuit.

Palin should appeal. In the very least, assuming the jury verdict is set aside, the case would present a clean record to challenge to the application of the actual malice standard to public figures. That is the subject of my earlier USA Today column.

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. Yet, I do not see how the Second Circuit could agree on the viability of the jury decision after the mishandling of this trial.

Here is the decision: Palin v. New York Times

46 thoughts on ““A Bit Unusual”: Federal Judge Rejects Palin Motion For New Trial”

  1. Life tenure for federal judges must end and a process must be developed that will permit their removal for poor performance.

  2. My recollection of the NY state law of defamation based on earlier correspondence on this site is that it gives even more protection to the press than NYT v Sullivan. In the second prong, the plaintiff must prove not merely that the journalist was reckless with respect to whether the statement was true or false but that he actually thought it was false and was reckless in proceeding in the face of that high probability. So Bennett could have been considered reckless under NY state law only if he thought the statement was false, which is harder to prove than that he was reckless with respect to whether it was true or false. I believe Rakoff held as a matter of law here that there was insufficient evidence to show that Bennett thought the statement was false. So it’s not clear to me that this case in the end raises any issues at all under NYT v Sullivan.

  3. “WHILE THE CAT’S AWAY, THE MICE WILL PLAY”

    THE RESTRICTED-VOTE IN AMERICA

    Is Rakoff as insane as Putin and Biden? Doubtful. Rakoff’s acts were deliberate, arbitrary, political, non-juridical and corrupt. The sole charge of the judicial branch is to assure that actions comport with statutory and fundamental law. The singular American failure has been and continues to be the unelected, off the reservation and out-of-control judicial branch.

    Dominion is that of the generic, undifferentiated People as represented by Congress, the legislative branch. The judicial branch has no power to legislate, modify legislation, or modify legislation by “interpretation.” The executive and judicial branches have no power to dictate, direct, or legislate. The mechanism of control over the out-of-control, unelected judicial branch is impeachment and conviction. Every case of corruption, “legislating from the bench,” and usurping power, must be impeached and convicted.

    Illegitimate, irrational and incoherent one man, one vote democracy precludes and defeats a valid, rational, coherent and imperative restricted-vote republic in America. Turnout was 11.6% in 1789. America can never be free America without a restricted-vote. The “democracy” of the democrat party is pure communism including central planning (solar panels, electric vehicles, windmills), control of the means of production (regulation of all free enterprise), redistribution of wealth (welfare, teachers unions, Obamacare) and social engineering (affirmative action, forced busing, fair housing, non-discrimination).

    When one man, one vote democracy wins, talent, capability, acumen, gumption, incentive, merit and success lose.
    __________________________________________________________________________________________

    “the people are nothing but a great beast…

    I have learned to hold popular opinion of no value.”

    – Alexander Hamilton
    _________________

    “The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”
    “If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”

    – Alexander Hamilton, The Farmer Refuted, 1775
    _______________________________________

    “A democracy is always temporary in nature; it simply cannot exist as a permanent form of government. A democracy will continue to exist up until the time that voters discover that they can vote themselves generous gifts from the public treasury. From that moment on, the majority always votes for the candidates who promise the most benefits from the public treasury, with the result that every democracy will finally collapse due to loose fiscal policy, which is always followed by a dictatorship.”

    – Alexander Tytler
    ______________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  4. And just on time Steve Kirsch is commenting on this censorship:

    Strip doctors of their licenses.

    “In House Resolution No. 74 of the 2021–22 Regular Session, the California State Assembly declared health misinformation to be a public health crisis, and urged the State of California to commit to appropriately combating health misinformation and curbing the spread of falsehoods that threaten the health and safety of Californians.”

    https://stevekirsch.substack.com/p/covid-19-misinformation-is-a-public?s=r

    I doubt the constitutionality of this stupid, Fascist law, but a lot of people may be hurt before that can be decided.

    If passed and doctors punished, the Board of Medicine may find more information on government dishonesty and Covid ‘misinformation’ rammed down their throats at a disciplinary hearing than they are prepared to take with pleasure. But before the big swallow the burden is on them to prove that the ‘misinformation’ actually is ‘misinformation’. Tricky since the official ‘science’ on this from the CDC and FDA is apparently a political windsock that shifts with the prevailing winds.

  5. Dennis is worried that authoritarians [like Trump] might silence the media.

    Dennis is looking over the wrong shoulder for trouble.

    He should look left.

    Alex Berenson, former NYT reporter has a good note about censorship on his substack. https://alexberenson.substack.com/p/berenson-v-biden/comments?s=r

    And here is a very good review of a new book about intellectuals and media types drawn into becoming informers for the Stasi.

    The Allure of Totalitarianism. https://lawliberty.org/book-review/the-allure-of-totalitarianism/

    Guard left, Dennis, Guard left…that is the source of totalitarianism these days.

  6. Jonathan: Your position is clear: “Palin should appeal”. Why? Because you are on a misguided crusade to have NY times v. Sullivan overturned re “public figures”. That might be good for Sarah but terrible for reporters and the news media generally. That would allow authoritarians (like Trump) to silence the press. It could also prove devastating for Fox who could face hundreds of defamation lawsuits. Is that really what you want? Enough said on this subject so let’s move on to really important news–Pres. Biden’s State of the Union last night.

    There are a number of take a ways. There were a number of GOP members who no-showed. One was Marco Rubio who didn’t like the Covid test requirement for attendance. He said: “I don’t have time to go take a COVID test today”. Sorry Marco that’s hardly an excuse. The test takes only a few minutes. It’s more likely Rubio refused the test because he might have tested positive.

    Right-wing firebrands Marjorie Taylor Greene and Lauren Boebert were there. When Biden started to address the issue of immigration Greene and Boebert stood up and contrary to House decorum rules shouted “Build the wall!”. Even before Biden’s address Greene bizarrely claimed the Dems had a plot to win the mid-terms–to “create happiness” for voters. Greene predicted Biden would “claim victory over Covid”. Sorry Marjorie, he didn’t. Biden said the fight against Covid was not over and laid out all the measures the administration was taking to combat the virus. Biden made reference to the million who have already died and what he wants to do prevent further deaths. Get vaccinated! That, indeed, would “create happiness” for those still unvaccinated. Biden also said the fight against Covid should not be a “partisan” issue. Not what Greene wanted to hear as the leading anti-vax crusader in the House. When Biden said he was going to stand up to Putin with severe sanctions that was the only issue on which there was bipartisan support. Even the Republicans managed to stand up and applaud. But on all the important issues facing the country the GOP is in lockstep in opposition to the Biden agenda. Should be interesting to find out what voters think this November.

  7. “Make yourself a thousand times more powerful than your enemy, and he will not attack you. This lack of attacks can be called peace.” – Hung Chow

  8. Any one bother to see what his (Rakoff) reversal rate is? Not sure if anyone keeps those stats

  9. Every time that Turley writes about this case, he shows that he is ignorant about the role that NY state law plays in this case.

    And he’s written about it repeatedly, all the while silent about other significant cases.

    The first of the Jan. 6 trials started today — the trial of Guy Reffitt. For anyone who is interested in the case, Zoe Tillman is a good reporter who is tweeting from the courtroom. Here’s her thread so far: https://twitter.com/ZoeTillman/status/1499026258516189193

    1. AUSA Jeffrey Nestler is up: “On Jan 6 of 2021, the United States Capitol, a heart of democracy in our country, the massive white bldg across the street from where you’re sitting right now, was attacked by a mob in what was the worst assault on the Capitol since the war of 1812” …
      Nestler provides a brief overview of the structure of Congress, touches on Reffitt’s membership in the Texas Three Percenters and how he tried to recruit others to come to DC, that he told his family about plans to come to DC (and teenage son’s role in sending a tip to the FBI) …
      Nestler recites some of the comments Reffitt was recorded making on the camera he wore on his head to the Capitol, apologizes in advance for the language:
      “We’re taking the Capitol before the day is over, ripping them out by their hair, every f–king one of them.”
      More from Nestler:
      “Dragging them out kicking and f–king screaming.”
      “I just want to see Pelosi’s head hitting every f–king stair on the way out, and Mitch McConnell too”
      “I’m packing heat and … I am going to that f–king building and I am dragging them the f–k out” …
      Nestler now describes how after Jan. 6, Reffitt talked about his experience at the Capitol on a zoom with other Texas Three Percenters, how he had a gun, “They are lucky we didn’t shoot them, they really need to be grateful” …
      Next up is Reffitt’s lawyer William Welch, he begins by saying the evidnece won’t show that Reffitt assaulted anyone or helped commit an assault, helped anyone disarm police, interfered w/ arrest; says he didn’t threaten harm, wasn’t aggressive …
      Welch says that Reffitt was hit by pepperballs/projectiles/pepper spray, and once he was sprayed, that was “the end of it.” Reffitt does brag, he exaggerates, he uses “a lot of hyperbole” and that upsets people, Welch says …
      One other notable thing from Welch — he told the jury that Reffitt was not armed, setting up a dispute over whether the black object seen on Reffitt’s hip was, as the govt contends, a handgun in a holster …

      They’re taking a short break before hearing from the first witness.

      1. Zoe Tillman:
        “While we wait: It appears a member of the Oath Keepers seditious conspiracy case has taken a plea deal — Joshua James is set to appear later today before the judge” at 5pm.

        James is another Jan. 6 defendant, and his case is before Judge Mehta.

        Guy Reffitt’s case is before Judge Friedrich.

        1. Joshua James has pleaded guilty to seditious conspiracy and obstruction.

          Marcy Wheeler: “James, a veteran, is trying to cooperate his way out of that, at least against Stewart Rhodes and presumably against Roger Stone, with whom James was with the morning of Jan 6. The most important detail from his statement of offense, as I heard it, is they had a plan to surround the White House, with arms, to ensure no one got to Trump.” (She will be writing about this in more detail tomorrow at her blog, emptywheel.net)

          Statement of the offense:
          https://storage.courtlistener.com/recap/gov.uscourts.dcd.239212/gov.uscourts.dcd.239212.60.0.pdf
          And plea agreement:
          storage.courtlistener.com/recap/gov.uscourts.dcd.239212/gov.uscourts.dcd.239212.59.0_4.pdf

          He won’t be sentenced until he’s done cooperating.

          I doubt Turley will write anything about either Reffitt’s trial or James’ guilty plea and the new information revealed today. But he should.

          Some discussion of the details in this thread:
          https://twitter.com/kenbensinger/status/1499174152267198465

    2. I doubt this makes a difference to you, but this is not a New York state trial, judge or appeal. It is a federal case. Try not to be ignorant, it might help you to make an intelligent point.

      1. Tort law is typically state law. When there is diversity jurisdiction a state law case can be tried in federal court but the federal court only provides a forum. State law is applied though it may have been shaped by federal law like NYT v. Sullivan.

        1. ignorance is bliss

          2. commits a tortious act within the state, except as to a cause of
          action for defamation of character arising from the act; or
          3. commits a tortious act without the state causing injury to person
          or property within the state, except as to a cause of action for
          defamation of character arising from the act, if he

          https://law.justia.com/codes/new-york/2012/cvp/article-3/302/

          https://www.scribd.com/document/352487908/352404642-Sarah-Palin-Sues-the-New-York-Times-for-Defamation#from_embed

          1. You’re looking at the wrong NY law.

            Apparently you can’t be bothered to read Rakoff’s ruling, where he notes (among other things) that “On December 29, 2020, the Court granted defendants’ motion for reconsideration and held that the amendment to New York’s so-called “Anti-SLAPP Statute,” 18 N.Y. Civil Rights L. § 76-a(2), applies to this action.”

            Next time, instead of relying on a single document uploaded by “John Hinderaker,” you might try looking at other relevant documents in the full public docket for the case: https://www.courtlistener.com/docket/6081165/palin-v-the-new-york-times-company/

            1. That just says the Constitutional requirement is the same as the SLAPP law. Are you people literate? This has no affect on the case, it was related to an appeals strategy by the ny times. It may come into play with the award of damages. State laws must follow the Constitution

              For the foregoing reasons, defendants’ motion is granted. The
              Court holds that N.Y. Civil Rights Law § 76-a, as amended on
              November 10, 2020, applies to this action and requires plaintiff,
              as a matter of state law, to prove by clear and convincing evidence
              what she had already been tasked with establishing under the
              federal Constitution: that defendants made the allegedly
              defamatory statements in the Editorial “with knowledge of [their]
              falsity or with reckless disregard of whether [they were] false”
              — that is, with actual malice. See § 76-a(2).

              1. Actually, it means that even if the Supreme Court were to overturn NYT v Sullivan, NY’s statute would still apply.

                It also means that NY precedent about the interpretation of “actual malice” applies.

                1. Likely true, just as if Roe were overturned state laws allowing abortion would still be valid.

      2. You’re the one making the ignorant comment. Which you might know if you’d bothered to read Rakoff’s rulings or even other legal commentary, such as this point by law prof. Howard Wasserman (and this isn’t the first time I’m pointing this out): “It turns out the use of NYT and actual malice as the standard is based in part on New York’s anti-SLAPP statute, which codifies actual malice (likely as a hedge against SCOTUS overruling) although in an amendment enacted after the op-ed was published. Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment. Overruling New York Times as the constitutional standard would not change the standard under New York law, meaning the result would be the same. SCOTUS typically does not take cases that turn on state law.”

        1. “SCOTUS typically does not take cases that turn on state law.”

          +++

          SCOTUS typically doesn’t take most cases. They leave much to the Courts of Appeal to hammer out.

          However, when state law also involves the Constitution or other federal law then they may elect to get involved. If a case on state law handled in state courts up to the state supreme court does not brush against federal issues then the Supreme Court has no jurisdiction to get involved. Unlike state trial courts of general jurisdiction, all of the federal courts, including the Supreme Court, are courts of limited jurisdiction.

              1. It is in a federal court, presumably because of diversity jurisdiction and because the Plaintiff is in Alaska and the defendant is in New York, but it appears to be NY state law. You do know that you cited New York law don’t you.

                Do you understand diversity jurisdiction?

                  1. Can YOU read?

                    You’re citing a law about “acts of non-domiciliaries,” and that doesn’t apply here, since the NYT is domiciled in the state of NY.

                    If someone here is “either a moron or illiterate,” that would be you.

                    1. I already told you: you’re citing a law about “acts of non-domiciliaries,” and that doesn’t apply here, since the NYT is **not** a non-domiciliary in NY. The law you’re citing is totally irrelevant to this case.

                  2. BTW, if you don’t like Rakoff’s description, you could instead read the Court of Appeals’ description: “Twelve days after the editorial was published, Palin sued the Times in federal court. She alleged one count of defamation under New York law.

                    1. Despite his rudeness I was giving him the benefit of a doubt though it seemed clear enough to me. I think he fell prey to a common enough problem, that of stopping when you find something you think supports your view.

                      I once was asking for a remedy formerly known as scire facias.

                      Opposing counsel cited FRCP 81b “The writs of scire facias and mandamus are abolished. Relief previously available through them may be obtained by appropriate action or motion under these rules”.

                      The writ was abolished. He liked that but he should have read all of it

                      I agreed that the writ was abolished but the remedy was still available by motion and that was why we were making a motion rather than applying for a writ. Granted.

                      Anonymous the Rude needs to revise his approach.

                      Thanks for pitching in.

        2. “Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment.”

          +++

          A federal judge can interpret state law in a case such as this, but it cannot really change it as any of the state’s courts of appeal or legislature can do. At best the federal court interpretation of state law in its forum would be a persuasive precedent rather than a mandatory precedent. It’s the difference between “might be right” and “is right and must be followed”. Unless, of course, the federal court bases its decision on federal law…but not when it is on state law.

          1. yes, the same as the Constitution and federal law, because Constitution supersedes state law. this was relevant with damages, in case the ny times lost the case

            1. I have changed my mind on one thing.

              I no longer think you are the one they call Anonymous the Stupid.

              You must be Anonymous the Stupider.

    3. Hey there, Salem Witch burners, we are all wondering when the trials will begin for those loony, violent Leftists (but I repeat myself) attempting to overtake the White House , the President and his family, or burn the historic St. John’s Church, or barricade a police station and attempt to incinerate the police therein, or cause billions of dollars in damage to property and businesses, or instigate 100s of “mostly peaceful” riots, resulting in thousand of injuries to civilians and police, and on and on. But you soy boys are obsessed with a DNC /FBI-contrived scuffle? Three hundred Leftist riots in one year compared to one riot in 300 years from the opposition? WTF is wrong with you traitorous, Blue Kool-Aid-inebriated fools? Your day of reckoning is coming…..and soon.

  10. The request for a new trial was just a routine pro forma step needed to be done before filing an appeal and those requests are almost always declined. The toxic media might make a big deal out of it. The judge has made an extraordinary mess of this however. I think he wanted a jury verdict to further thwart Palin but he went too far, almost to the point of jury tampering.

    Some federal judges need to get over the sense of godlike invulnerability. A few targeted impeachments might serve even if they don’t end in convictions. Not all guilty criminals are convicted either but you don’t stop trying if you have a meritorious case. They are supposed to be judges, not mini-gods. They need reminding. Play politics, expect to be treated like a politician.

  11. his ruling was….if you are republican…you are guilty and if you are a democrat you are not guilty.

    just fill in the blank for what crime!

  12. Palin will get her next trial at the Holy Gates.
    She will get sent to Hell in a hand basket. Unless they cut her up and put her in a pale.

    1. unlike the Democrats who will never see the Holy Gates…they are going the other way!

      Have you ever heard of a judge ruling that the jury is irrelevant? You recall some thing about Americans getting a jury trial? Democrats handbook…juries are ignored when we don’t trust them!

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