Sarah Palin’s Vindication

Our David Zimmermann has a comprehensive report on the Second Circuit’s entirely justified panning of Judge Jed Rakoff’s conduct in presiding over Sarah Palin’s libel suit against the New York Times. The court has thrown out the verdict that the paper was not culpable for libel in peddling, for the second time, the grotesque falsehood that Palin had encouraged political violence. She has been granted a new trial.

I wrote about the case in February 2022, recounting what happened at the trial, laying out the complexity of judge-made U.S. libel law, and giving a forecast that was not overly hopeful for the former Alaska governor: I thought the court would find that Rakoff’s conduct undermined the jury verdict but that his alternative resolution — his own dismissal of Palin’s complaint — was a correct application of the Supreme Court’s libel precedents. I’m happy to say, that last part was overly pessimistic.

In the column, I described Judge Rakoff’s conducting of the trial as follows:

At some point during the proceedings, Rakoff decided that Palin had not met her burden of proof on actual malice/reckless disregard. He thus decided to dismiss the case. I don’t agree with his decision, but that’s not because I think he’s wrong in a bottom-line sense: As I’ve said, the Supreme Court’s demanding proof standards in libel cases make this a close call, one on which reasonable minds can differ. Instead, Rakoff was wrong because the question whether the Times acted with reckless disregard for the truth is an issue of fact, and issues of fact are supposed to be decided by the jury in a jury trial such as this one. The judge can give the jurors instructions on the relevant legal principles that should inform their decision, but the decision is supposed to be theirs, not his.

There is, as usual, an exception: The judge has the authority to dismiss the case if he finds that the evidence presented is so weak that no rational juror could decide in the plaintiff’s favor. In my view, for what little that’s worth, it would be rational to find that Palin had met her burden of proof. That, however, would not mean that a juror’s finding in the Times’ favor would be irrational. It would mean that a verdict for either side would be defensible, and thus the jury should decide.

All that said, I don’t even have much heartburn over Rakoff’s determination to decide the case himself. After all, Palin can appeal. Rakoff’s ruling on the merits may have been wrong, but it wasn’t crazy. Palin could argue to the Second Circuit that Rakoff’s bottom-line ruling was wrong, and that, at the very least, he should have deferred to the jury. If she persuaded the appeals court, she would get a new trial.

Rakoff, however, did not want to risk that scenario. Yes, he decided to rule against Palin, but he didn’t want to appear to be doing so unilaterally, or in defiance of the jury. Manipulatively, he waited until the jury was already deliberating to announce his decision. Now, that’s odd timing. When a judge decides to throw out a case during a jury trial, the normal procedure is to announce the ruling and simultaneously dismiss the jurors, since there is no point in having them reach a verdict. By contrast, Rakoff announced that he was ruling against Palin after deliberations had begun, even though, at that point, no one is supposed to do anything that could extraneously influence the jury. And then he had the jurors continue deliberating.

Even worse, Rakoff timed the announcement of his ruling against Palin to come at the end of a trial day, when it was clear that the jury had not yet reached a verdict and would be going home. So the jurors were not sequestered when the announcement was made; everyone knew they’d be returning to continue deliberations the following day. With the jury gone, Rakoff made his ruling from the bench, reasoning that Palin’s evidence of actual malice/reckless indifference was insufficient. He had to know that his ruling, in a case that had drawn intense national media coverage, would be widely reported. It was virtually inevitable that at least some of the jurors would learn, in the middle of deliberations, that the judge from whom they took their guidance about the case had decided that Palin should lose.

To what should have been no one’s surprise, that is exactly what happened.

If a lawyer for one of the parties pulled a stunt like this — publicly announcing information that was not part of the evidence in the case and that had a high potential to influence the jury while deliberations were ongoing — a good judge would be profoundly offended, and the lawyer might well face disciplinary proceedings. While Rakoff cavalierly observed that he had told the jury not to read or watch media reports, he well knows that this is not always sufficient. Sometimes news emerges that is so big, even conscientious jurors cannot avoid it. (In my terrorism prosecution in 1995, the jurors were instructed to refrain from relevant news coverage, but when the Oklahoma City courthouse was bombed, no one seriously believed they’d remain unaware of it.) It is the judge’s job to preserve the integrity of jury deliberations. It is not enough to instruct the jury to avoid news coverage of the case; the judge has an obligation to resist taking any unnecessary action that might intensify such news coverage.

In this instance, Rakoff’s announcement that he was ruling against Palin inevitably ignited a burst of news coverage. At least three of the jurors got unsolicited push-notifications about it on their mobile phones. Could there be anything more unfairly prejudicial to Palin than to have the jury informed, in the middle of its deliberations, that the presiding judge was ruling that the Times had not acted with actual malice or reckless disregard for the truth?

Though a number of the jurors were now aware that Rakoff had ruled and that their verdict would be superfluous, they nevertheless came back to court the next day. Rakoff had them continue their deliberations rather than dismissing them, and — what a surprise! — they soon reached a verdict in favor of the Times. Now, thanks to these machinations, if Palin appeals, the Times will argue not only that the learned district judge ruled that her case had no merit, but also that the jury, after carefully sifting through the evidence, concluded that Palin failed to prove her case.

There was no good reason for Rakoff to do this. The rules allow him to throw the case out and dismiss the jury before it retires to deliberate. They also allow him to permit the jury to reach a verdict, but then overrule that verdict post-trial. In the latter situation, the appellate court gets the benefit both of the reasoning of the trial judge, and of a verdict reached by a jury that deliberated in the usual manner (i.e., shielded from outside influences). But it is simply inexplicable for a judge to announce a ruling on the ultimate merits of a case while the jury is deliberating, in a way that makes it highly likely the jury will hear about the ruling, and then have the jury continue deliberating as if nothing has happened.

If it’s possible, this story gets even worse.

We know that the jurors found out about the court’s ruling against Palin because Judge Rakoff had his law clerk interview the jurors after they reached their verdict. There was no notice to the parties that the jurors were going to be interviewed by the judge’s staff (which Rakoff says is his standard practice). There was no opportunity for the parties to hear what the jurors said, or to question them about the impact on deliberations of reporting about Rakoff’s ruling. Instead, Rakoff issued a terse order, less than two double-spaced pages long, which — besides giving his spin on what happened — chastised the lawyers for failing to object to his senseless plan to announce his decision while the jury was deliberating.

Meantime, in another jaw-dropping move, Rakoff gave a self-serving interview about the case to Bloomberg News, in which he expressed “disappointment” that the jurors had learned about his ruling “if they did” (of course, he knows they did), but defiantly concluded, “I continue to think it was the right way to handle things.”

Good grief.