Tainted Verdict: Sarah Palin Jury Knew During Deliberations That Judge Was Going To Throw Out A Liability Verdict

Tainted Verdict: Sarah Palin Jury Knew During Deliberations That Judge Was Going To Throw Out A Liability Verdict

Judge Jed Rakoff pulled a highly unusual move as the jury in Sarah Palin’s defamation case against the NY Times was deliberating. He ruled that he would dismiss the case based on Palin’s alleged failure to prove a key element of her claim.

The move was very strange because normally if a case is not proven, a judge rules on legal insufficiency either before the jury gets the case, or after it returns its verdict. That way there is a clean issue for appeal.

Since the jury was not sequestered, there was a strong likelihood that the jury would learn of the ruling before it reached its own conclusion.

This note from the jury during deliberations seemed unusually legalistic:

NOTE & REPLY: Sarah Palin v. NYT trial jury note w/ Judge Rakoff's response.

*Remember, Rakoff decided he will toss the case after the verdict, deciding no reasonable jury could return a verdict for Palin given the evidence.*

But jurors don't know that…deliberations continue. pic.twitter.com/36sdfUVSSc

— Frank G. Runyeon (@frankrunyeon) February 15, 2022

And that’s what happened according to a disclosure by the judge, as reported by Politico:

Jurors in former Alaska Gov. Sarah Palin’s libel trial against The New York Times became aware during deliberations that the judge overseeing the case had ruled that it should be thrown out, the judge disclosed in an 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,” the Manhattan-based Rakoff wrote in a two-page order.

While rulings by judges to throw out a case at the close of a civil or criminal jury trial are not uncommon, many legal experts faulted Rakoff for revealing his plan in the middle of the jury’s deliberations. Doing so raised the prospect that jurors would learn of his decision and that it might prompt them to side with the Times regardless of their view of the evidence.

However, Rakoff said in his order that the jurors assured him his decision had not influenced them.

“The jurors repeatedly assured the Court’s law clerk that these notifications had not affected them in any way or played any role whatever in their deliberations,” wrote the judge, who is an appointee of President Bill Clinton and joined the court in 1995.

How did the jurors find out? From news alerts sent out by, among others, the NY Times, as Buzzfeed reports:

“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,” he wrote.

Several outlets, including BuzzFeed News and the New York Times itself, alerted readers to the judge’s decision via push alerts on Monday, although for these notifications to appear on phones, users must first download the relevant apps and then have alerts enabled via their settings.

Here’s the text of Judge Rakoff’s Order (pdf.):

ORDER

It is the Court’s uniform practice after a verdict has been rendered in a jury trial to have the Court’s law clerk inquire of the jury as to whether there were any problems understanding the Court’s instructions of law, so that improvements can be made in future cases. 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. 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. The jurors repeatedly assured the Court’s law clerk that these notifications had not affected them in any way or played any role whatever in their deliberations.

The Court also notes that when it proposed to the parties, during oral argument on Monday morning, to render its Rule 50 decision later that day but to permit the jury to continue deliberating so that the Court of Appeals would have the benefit of both the Court’s legal determination and the jury’s verdict, no party objected to this plan. Nor did any party object when the Court reconvened later that day, outside the presence of the jury, and the Court indicated that it was prepared to issue a Rule 50 decision at that time. Indeed, no party objected to this procedure at any time whatever.

Nevertheless, in an excess of caution, the Court hereby brings the foregoing facts to the parties’ attention. If any party feels there is any relief they seek based on the above, counsel should promptly initiate a joint phone conference with the Court to discuss whether any further proceedings are appropriate.

SO ORDERED.

It’s ridiculous to say the jury was not influenced, how could they not be? Why did the judge instruct them not to listen to or watch news coverage of the case unless news coverage in itself would be a taint? Why didn’t the jury immediately call this violation of the court’s instruction to the court’s attention? Why did it come out only after the verdict when asked by the Clerk if there were any problems? That the jury concealed the information during deliberations in itself is improper.

This leaves Palin deprived of her most meaningful appeal — to reinstate a jury verdict in her favor if the appeals court reversed Rakoff’s dismissal of a verdict. Instead, Palin has a murky appeal on substance because she has a negative jury verdict, so the most the appeals court could do is order a new trial, not reinstate a favorable verdict.

This is a terrible situation, an injustice was perpetrated. Sarah Palin deserves a new trial now, start next week. She should not have to appeal.

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