Left: Sarah Palin speaks briefly to reporters as she leaves a courthouse in New York, Feb. 14, 2022 (AP Photo/Seth Wenig, File). Right: Judge Jed Rakoff speaks on science and the legal system in 2019 (American Academy of Arts & Sciences/YouTube).
Sarah Palin, the former Republican governor of Alaska and onetime candidate for vice president, got a measure of vindication Wednesday as an appellate panel agreed that she should get a new libel trial against the New York Times based on the judge’s decision to toss the case while jurors were deliberating, a decision the jury got wind of by push notifications, calling into question the “reliability” of their subsequent “not liable” finding in favor of opinion editor James Bennet and his former employer.
A panel on the U.S. Court of Appeals for the Second Circuit, led by Senior U.S. Circuit Judge John Walker, a George H.W. Bush appointee, said that while Senior U.S. District Judge Jed Rakoff may have regarded the notification snafu as “legally irrelevant,” given that jurors were “adamant that this knowledge” of his controversial Rule 50 dismissal of the case “had not affected their determination of the verdict in the slightest,” it was clear that Palin is entitled to both the overturning of the “not liable” verdict and a new trial because there were “several major issues” at play.
Those issues included Rakoff’s decision to rule, on his own during deliberations, that no reasonable jury could find that the Times and Bennet acted with actual malice when the then editor’s 2017 editorial linked a “cross hairs” map “circulated” by Palin’s political action committee, SarahPAC, to the 2011 mass shooting in Arizona carried out by Jared Lee Loughner, who killed six people and “grievously wounding Representative Gabby Giffords,” a Democrat. While the original version of the editorial was corrected under 14 hours after publication, Palin embarked on a long and winding road to sue, and eventually she reached a roadblock.
“My job is to decide the law,” Rakoff wrote in February 2022. “The law sets a very high standard, the court finds that that standard has not been met.”
On Wednesday, the Second Circuit said that Rakoff committed other errors and ultimately cast doubt on the “reliability” of the jury’s verdict.
“Unfortunately, several major issues at trial—specifically, the erroneous exclusion of evidence, an inaccurate jury instruction, a legally erroneous response to a mid-deliberation jury question, and jurors learning during deliberations of the district court’s Rule 50 dismissal ruling—impugn the reliability of that verdict,” Walker wrote. “The jury is sacrosanct in our legal system, and we have a duty to protect its constitutional role, both by ensuring that the jury’s role is not usurped by judges and by making certain that juries are provided with relevant proffered evidence and properly instructed on the law.”
More Law&Crime coverage: Sarah Palin renews challenge of landmark precedent as ‘obsolete’ in libel case against New York Times that Justice Thomas may be watching closely
Instead, Rakoff should have left the actual malice question to the jury, the panel said without taking a “position on the ultimate merits of Palin’s claim.”
“After reviewing the record and making all reasonable inferences in Palin’s favor as the nonmoving party, we conclude that there exists sufficient evidence, detailed below, for a reasonable jury to find actual malice by clear and convincing evidence,” Walker wrote.
The panel also expressed doubt that jury verdicts rendered with knowledge that the judge’s has already decided to toss the case would be “untainted.”
“Given a judge’s special position of influence with a jury, we think a jury’s verdict reached with the knowledge of the judge’s already-announced disposition of the case will rarely be untainted, no matter what the jurors say upon subsequent inquiry,” the court said. “We therefore conclude that a new trial is warranted on this basis.”
Despite overturning Rakoff for “erroneous” decision-making, however, the Second Circuit declined to side with Palin’s request to disqualify the judge from presiding over the case.
“We do not find it necessary to remand the case to a different district judge,” the panel said, saying that it is “confident” Rakoff will “adhere to the principle of complete impartiality, and its appearance, in fulfilling his future judicial responsibilities in this case.”
The New York Times reported on Palin’s court win with comment from a spokesman who called the Second Circuit ruling “disappointing” but expressed confidence “we will prevail in a retrial.”
Palin’s attorney Shane Vogt told Law&Crime his client is “very happy with today’s decision, which is a significant step forward in the process of holding publishers accountable for content that misleads readers and the public in general.”
“The truth deserves a level playing field, and Governor Palin looks forward to presenting her case to a jury that is ‘provided with relevant proffered evidence and properly instructed on the law’ as set forth in the Second Circuit Court of Appeals’ opinion,” Vogt said.
Read the decision here.
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