Former Alaska governor and Republican vice presidential nominee Sarah Palin won a new defamation trial against the New York Times on Wednesday, with a federal appeals court panel citing multiple legal errors in the case. The 2nd U.S. Circuit Court of Appeals rebuked the trial judge (though it didn’t remove him) in reviving Palin’s lawsuit against the paper and its former opinion editor James Bennett.
The New York-based appellate panel highlighted “several major issues” at the trial presided over by U.S. District Judge Jed Rakoff, 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.”
The Times said in a statement after the ruling, “This decision is disappointing. We’re confident we will prevail in a retrial.”
The suit stemmed from a 2017 Times editorial called “America’s Lethal Politics,” which compared two political shootings: the 2011 killing of six people and the injury of 13 others in Arizona, including then-Rep. Gabrielle Giffords, a Democrat; and the 2017 Virginia shooting that seriously injured four people, including Rep. Stephen Scalise, R-La., at a congressional baseball game practice. The Times editorial argued there was a clear and direct link between the Arizona shooting and the political incitement arising from a digital graphic published in March 2010 by Palin’s political action committee. The graphic was a map that superimposed crosshairs over 20 congressional districts represented by Democrats, including Giffords’.
But a relationship between the crosshairs map and the shooting “was never established,” the circuit panel wrote, adding that the incident was rather “viewed as a tragic result” of the shooter’s serious mental illness. (A correction on the editorial currently reads: “An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.”)
Wednesday’s ruling for Palin is the latest appellate outing in her favor. In 2019, the circuit previously reversed the trial court’s dismissal of the case. This latest ruling stems from the 2022 trial.
During jury deliberations, the judge decided that he sided with the defense and would render what’s known as judgment as a matter of law (the Rule 50 dismissal to which the appeals court referred). The judge said that he would dismiss the case only after the jury had returned its verdict but wouldn’t tell the jury about his decision so as not to interfere with the verdict.
The jury found the defense not liable, but it turned out that several jurors had learned about the judge’s ruling before they reached their verdict, from push notifications on their phones.
On appeal, Palin challenged both the verdict and the Rule 50 decision, and the circuit court agreed that both must be vacated.
“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 panel wrote in its decision, authored by Judge John Walker, an appointee (and cousin) of former President George H.W. Bush. He was joined by George W. Bush appointee Reena Raggi and Donald Trump appointee Richard Sullivan.
But the panel declined to reassign the case to a new judge — a subject that is also top of mind in special counsel Jack Smith’s appeal of U.S. District Judge Aileen Cannon’s dismissal of Trump’s classified documents case.
“On remand, we are confident that the district judge will adhere to the principle of complete impartiality, and its appearance, in fulfilling his future judicial responsibilities in this case,” Walker wrote of the Clinton-appointed judge.
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