Yesterday, the jury in the Sarah Palin case found that the New York Times is not liable for the false claim it made against Palin in an editorial. The judge had already ruled in favor of the Times but, in an unusual move, he allowed the jury to continue deliberating to a verdict.
Palin always faced an uphill battle because of the high level of protection current law affords journalists in cases involving public figures. Thus, the decision of a New York jury isn’t surprising.
However, there’s a wrinkle. As John Sexton points out, this jury wasn’t sequestered. Therefore, it’s quite possible, and even likely, that jurors learned before they reached a verdict that the judge had already decided there wasn’t sufficient evidence to support Palin’s case.
If so, was this a factor in the verdict? It might have been. Some jurors might have been swayed on the merits by what the judge concluded. “Holdout” or undecided jurors, if any, might have concluded it was a waste of time to maintain or take a pro-Palin position, since the verdict no longer really mattered.
Sexton also notes that the judge has advised jurors not to talk to the media. The New York Times argued against so advising jurors, but the judge rejected that position.
If jurors follow the judge’s recommendation, we won’t know whether they knew about his decision before they reached their verdict.
Will Palin appeal? Her lawyers say they are considering their options.
Is there a fruitful basis for appealing based on the the fact that judge ruled and then allowed the jury to deliberate without eliminating the possibility that it would learn of his ruling while still deliberating? I don’t think so. The appeal would be from the judge’s ruling on the merits. If the judge is found to have been right to toss the case, that should be the end of the matter (absent a petition to the Supreme Court). If he is found to be wrong, I assume there will be a new trial.
Either way, any error in the judge’s handling of the jury would be deemed “harmless.” That, at least, is my initial take. NOTE: I now think this initial take is incorrect. If the appeals court finds that the judge was wrong to take the case away from the jury, the Times can try to rely on the jury’s verdict, saying that even if the judge hadn’t taken the case away, Palin would have lost. Palin will want to argue that the jury’s verdict can’t be relied on because it was tainted by the judge’s ruling and the jury’s knowledge of it, which has now been established.
Even if the court of appeals affirms the judge’s ruling as a sound application of existing law — the likely outcome — there would still be the question of whether existing law is correct. That would be a matter for the Supreme Court to decide.
Two Justices — Thomas and Gorsuch — have signaled unhappiness with the high barrier existing law provides journalists. However, it would take two more votes for the Supreme Court to consider Palin’s case and an addition vote to overturn the existing rule.
That’s another uphill battle, it seems to me.