As jurors were deliberating in the suit by Sarah Palin against the New York Times, SDNY Judge Jed Rakoff informed the parties of his intention to grant the Times’ Rule 50 motion on the basis that the evidence was legally insufficient to establish “actual malice, as required by Times v. Sullivan and its progeny.
But the judge didn’t grant the motion, as many media outlets incorrectly announced, and stated he would let the jury deliberate and reach a verdict so that the Second Circuit would have both his ruling and the jury verdict, in case the circuit decided he was wrong.
As the Second Circuit had previously reversed his dismissal of the suit, perhaps Judge Rakoff was being prudent in allowing this very weird process to continue. it may be less “weird” that a judge, having reserved judgment on a motion JNOV, plans to dismiss if the jury doesn’t reach the verdict that he deems legally necessary, but what happened here, announcing it in advance of granting the motion, is very weird. Josh Gerstein of Reuters explained that Judge Rakoff felt it would be unfair not to tell the parties. Why, he didn’t explain.
But having done so, and the news of his decision being broadcast, mostly inaccurately, across media, what about the jury?
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.
Part of the instructions the judge gives the jury is that they are not to read about the case. Most lawyers consider such instructions highly aspirational, particularly in a high profile suit. It’s not that most jurors don’t try to adhere to the court’s instructions. They do, with surprising sincerity along with some notable exceptions. But it’s hard to imagine a competent lawyer putting his client’s cause at risk trusting that this won’t be one of those exceptions. And it turned out it was.
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.
Perhaps it happened this way, or perhaps not exactly this way. Perhaps Judge Rakoff should have considered this possibility before relying on the legal fiction that if a court instruct jurors not to read anything about the case, they won’t, including “push notifications,” even if they’re almost impossible not to notice. The jurors assured the court that even though they received these notifications, it did not influence their verdict.
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.
Judge Rakoff also pointed out that there was no objection by counsel for either side to his allowing the jury to continue deliberations despite his pre-announcement.
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.
That the parties didn’t object is the sort of waiver analysis a judge uses to shift the burden off the court and onto the parties. Sure, the parties could have raised the possibility to the court that the pre-announcement could find its way into the jury room, prejudicing the deliberations and rendering any verdict tainted by the judge, almost always the most influential figure in the courtroom, saying that the evidence was legally insufficient. Who are the jurors to disagree?
But the jurors “assured” the court that they weren’t swayed by the judge’s announcement. That may well be, and the jury may well have reached the same verdict regardless. But it’s hard, maybe impossible, for jurors to assess the influence the judge’s “ruling” would have on their deliberations. Whether it changed anyone’s mind, or confirmed what they already thought, it’s impossible to know with certainty that it didn’t carry any sway with the jury.
It’s easy, in retrospect, to see that Judge Rakoff might have been unwise to announce what his ruling on the Rule 50 motion would be while he had a jury deliberating. Was he so arrogant as to believe the jury wouldn’t get wind of his ruling? Was he so reckless as to not care? In the olden days of sequestered juries, and no smartphones, this might not have been much of a problem, but is there any serious means by which one can be absolutely certain that improper information won’t find its way to the jury?
Given that the Second Circuit already reversed Judge Rakoff once on this case, it’s quite possible that they will do so again on the issue of law that formed the basis of his Rule 50 decision, which relies on the court’s assessment of whether any reasonable jury could find that the plaintiff, Palin, proffered legally sufficient evidence of actual malice. A jury verdict for the defendant would have gone a long way in resolving that issue. In light of Judge Rakoff’s announcement, if the circuit doesn’t uphold the ruling as a matter of law, then it may require that the case be retried to an untainted jury.