Categories
Right Angle

Smashing Justice: Sarah Palin’s Libel Case vs. NY Times Tossed by Judge as Jury Deliberates

If you were a juror, how would you feel when you return with a verdict only to hear “case dismissed” from the bench?

Smashing Justice: Sarah Palin's Libel Case vs. NY Times Tossed by Judge as Jury Deliberates

The judge in Sarah Palin’s libel trial against the New York Times tosses the case out WHILE the jury deliberates. If you were a juror, how would you feel when you return with a verdict only to hear “case dismissed” from the bench.

Scott Ott, Stephen Green and Bill Whittle, veteran news commentators, have produced five shows each week for more than 12 years, thanks to folks like you who fund the enterprise. When you become a Member (by clicking the big green button above) you unlock exclusive features, and backstage content. Plus, you join a team of committed constitutional conservatives who spread these messages across the country and around the world. If you don’t want to join, but want to help, click the big blue button above to make a one-time or recurring donation with PayPal or credit card. Either way you’re making a difference, and we appreciate you.

Listen to the Audio Version

28 replies on “Smashing Justice: Sarah Palin’s Libel Case vs. NY Times Tossed by Judge as Jury Deliberates”

One thing that needs to be noted, at least according to Robert Barnes and Nate Brody, “Actual Malice” is actually the “Known or should have known the information was false” standard, rather than meanness. Another issue of the law using different definitions than thinking people.
So, Steve, your proposed standard is actually much closer to the SCotUS’s standard. The real issue is judges throwing jurisprudence into the ash heap of history.
Also, Scott, there’s nothing wrong with “anti-federalist.” They were the people who did not trust the formation of a powerful, federal government, as opposed to amending their erstwhile confederation.

We all know how the NYT and leftists/radicals hated Sarah Palin. Obama appointed judges almost always bend the knee. They need to get their inside trading advice delivered to them and to stay invited to the Who’s Who slippery cocktail parties. I have a very dim view of our legal system now. Can you tell? Comey was the eye opener.

This whole discussion by our 3 esteemed commentators (and some of the comments) is for the most part, misdirected.
Much of the anger and angst stems, I think, from not understanding burden of proof and civil procedure. First, as Steve points out, the standard Ms. Palin had to meet was the “actual malice” standard. Whether that standard is good or bad is irrelevant as the trial judge does not have the option of ignoring it. Second, this was a civil, not criminal, matter. Because it is a civil case the court can, on its volition or on a motion, decide the merits as a matter of law without submitting the case to a jury. Every civil cause of action has certain elements that must be proven to recover. If at the close of the evidence a party has put in evidence on elements A and B, but nothing (or insufficient evidence) on elements C and D, then case must be taken away from the jury. Why? Because the jury’s function as fact finder is, under those circumstances, unnecessary. With no or insufficient proof in the record on C or D, it does not matter what the jury finds, or not finds, as to A and B.
This is what, I understand, happened here. The judge determined that Ms. Palin had not put in the proof needed to establish all the elements of the actual malice standard. Procedurally, he probably should have just pulled the plug at that point and not submitted it to the jury (for all the reasons Scott mentioned). Instead, he took the unusual step of announcing his decision but sending it to the jury anyway. I don’ think this was particularly wise because of the appearance it creates (as was discussed by Bill).
Keep in mind, however that under FRCP 50, if the court denies a motion to take the case away from the jury and submits the case to the jury, the court still can, on a motion made after the jury returns a verdict, nullify the verdict. The judge can do this if he decides he made a mistake denying the motion and should not have submitted it to the jury in the first place.
FRCP is not some nefarious rule to deny litigants the right to jury trial. It is designed to make sure that only those issues that need to go to the jury go to a jury; and to allow the trial court to correct an error it may have made. That said, I do agree with the general consensus that by doing it somewhat “backward” the judge did little but create a bad perception.

Understood. But it seems this judge sent the jury to deliberate and then dismissed the case.

By Post Author

Not exactly, the case continued to verdict.

That said, I agree with those who suggest the judge was wrong for making the jury decide something IF he already had made up his mind before. IF the judge had decided in his own mind the case was insufficient before the jury was sent out, then I don’t think it was wise for him to send them out, and even worse to then say in court he was going to dismiss the suit. As it has now been reported, the verdict came back against Palin, but one of the jurors reportedly found out about the judge’s intent to dismiss anyway.

It was a bush league move by the judge to announce the JMOL before the jury came back. If he felt that strongly about the plaintiff’s failure to meet her evidentiary burden under the actual malice standard, he should have granted the motion before sending the case to the jury. If they are going to grant the motion, most judges (in my experience) tend to wait until the jury has come back, so the appellate court will have both the jury verdict and the motion and order on the JMOL to review.
The real culprit here is the Warren court’s invention of the actual malice standard for libel of public figures. I would like to see the current court re-visit NY Times v. Sullivan.

Agree. Didn’t make a lot of sense for him to do what he did; and may have blown up his appellate insurance by producing a tainted jury verdict to boot.

Would it be too hard for you to enlighten us as to the criteria for a malice verdict? Really appreciated your post.

Michael – a couple of questions in line to what I had posted earlier:
If the judge does not believe that the plaintiff has met the level of burden, but chose to send it to the jury anyway; are you saying procedurally he could have just stayed silent awaiting the results, and if the jury came back for the plaintiff then still invoked his opinion and nullified the juries decision?
If that is so, why would he speak up prior to? That doesn’t make much sense.
Not having followed the case, isn’t the burden in civil trials generally much lower than in criminal cases? So while the SC had invoked this “malice” argument, it seems that the nebulous nature of the term is what we rely on juries to determine.
That said, seems like this judge should have just kept his mouth shut.

Under the rule the judge could still “nullify” a Palin verdict if the NYT asked it to and the judge, in retrospect, decided that he should not have let the case go to the jury in the first place. Allowing the case to go to the jury is not some waiver of the judge’s right to rule otherwise as a matter of law (assuming such a motion is made and supported after the verdict).
I am not making any value judgment on whether the judge made the right call in granting a directed verdict against Ms. Palin. I didn’t read the transcript or his decision, so I don’t know how solid his reasoning is. To have done what he did he had to determine that there was no “legally sufficient evidentiary basis” to support one or more of the elements that Ms. Palin had to prove.
I didn’t mean to suggest that the judge weighed the evidence himself regarding the burden of proof. Burden of proof, legally understood, means both burden of production (coming up with some evidence on all the elements) and burden of persuasion (having strong enough evidence to carry the day). I meant the former. I believe the burden of proof (persuasion) here is “clear and convincing” which is a middle burden that lies somewhere between a preponderance of the evidence and beyond a reasonable doubt. Whether that standard is met is a jury function.
I am sure Ms. Palin will appeal and say the judge erred by rendering a directed verdict. Who knows what the appellate court will do. However, this probably explains, somewhat, why the judge did what he did. With the jury now coming back and saying Palin loses, on appeal the judge’s error is rendered basically harmless because the jury decided against her anyway. Although, as I mentioned in another post, one of the juror’s found out about what the judge was planning–thus probably tainting the entire verdict..

Comey is teaching law (!) at Columbia or some other big wig University now. This dismissal of the Palin Civil case against the NYT sounds eerily similar to what Comey did. He delineated the clear evidence against H. Clinton and then summarily dismissed and deterred any court of law from taking it up. The Comeyfish with the rotten head has corrupted the rest of the body and is teaching others the same level of corruption.

I, too, am not an attorney and if there are any trial attorneys or judges on the site, please chime in.
Isn’t a motion to dismiss by the defendant in any case; civil or criminal, fairly routine? After the prosecution “rests” wouldn’t the defense make a claim that they have not come close to the standard required and ask for a summary dismissal or something like that?
That would be the point the judge would say, members of the jury thanks for your time but we are done here.
By waiting, this judge is basically nullifying the jury without knowing their decision.
How does one recall/impeach a judge?

Two problems here …

As Steve points out, there’s a serious failure in our libel/slander/defamation laws. The Constitution guarantees Freedom of Speech. There is no amendment in the Bill of Rights that guarantees Freedom from Consequences.

You can say anything you like, you should also face the consequences for any action you take including what you say. Truth is always a defense against a charge of libel/slander/defamation. If you can’t demonstrate something to be true then you shouldn’t be saying it in a media outlet. If you do, then you’d better be able to back it up.

That does not hobble the truth, it biases for truth and discourages untruth.

Second issue is a judge usurping the authority of a jury. Generally you have a choice whether you want a jury or if you are willing to accept the verdict of the trial judge. If you demand a jury then the US Constitution says you get a jury. Full stop, end of discussion.

Some trial judges will penalize you for demanding a jury if you lose and that goes for either criminal or civil cases. They justify imposing a harsher sentence or judgement because there’s more expense and more bother with impact on more people’s lives when a jury has to be empanelled. As far as I know, there’s nothing that can be done about this subtle coercion to avoid a jury trial. The judge won’t come out and say he’s doing that, he just establishes a pattern of doing it that becomes known to the attorneys in his venue.

Be that as it may, this judge allowed a jury to be empanelled and hear the case. He used some pretty vigorous legal contortionist gymnastics to then supplant the jury with his own judgement. As far as I can see and like Steve, I’m no lawyer but, that’s not legal and the Palin plaintiff has ample grounds to appeal.

Normally judges are loath to do things that throw their judgement into question. Losing a decision to an appeals court is a black mark on a judge’s record. It’s roughly the equivalent to a prosecutor losing a case. It doesn’t look good and enough overturns on appeal pretty much guarantee that judge will never advance higher than the bench he’s sitting on today.

Thus being as there’s no way to know the future and no means to decide how many hits his career can take by being overturned on appeal … Most judges avoid doing things like this judge did like they would avoid the plague. It’s likely that a judge will make some mistakes or just see his decision overturned by a hostile appeals court so there will be those upsets no matter what. To invite one on purpose is asking for a career killer.

This is an automatic and natural safeguard built into the system. It has the effect of keeping judges on the straight and narrow path their boundaries are defined by. It’s a “checks and balance” sort of thing.

So when you see a judge do something like the one we’re talking about here it’s a very suspicious move.

Put it this way. If a football player snags his pass and has the ball, running for the end zone for the winning touchdown with seconds left in the game and with no possibility of being stopped and … He “trips” 2 yards from the end zone and the ball hits the ground just as the game ends … What might you think? You’d think he threw the game on purpose, that’s what.

You might not be able to prove it but the taint is going to be there nevertheless.

Born in Sidney with much family in Western Hills. Love Skyline and get Gliers goetta from Cincy’s Favorites. Arrives in North Florida still frozen like logs of granite!! 97 yr. old uncle still lives at the top of Queen City Ave. Have other family in Covington.

My dad used to take me and one of my cousins around the Cincy area to sample different chili parlors. If we happened to hit a couple of the old German family bakeries while out, well, so be it!! There are none of the old family bakeries left in the Western Hills area.

No “good” reason depends on your definition of good. There’s a very good reason for a Democrat appointed judge to do this – send a message that powerful media outlets can abuse citizens however they want, and it’s the serfs’ role to take it.

These people operate under the “Any means necessary” mode of power. If they have the power then they can wield it any way they see fit to accomplish their goals. I heard it put pretty well as they are playing Calvinball and we are trying to play football. We need to start playing a different form of Calvinball (one with a few rules not none like the left) instead of begging the referees (who have joined the other team) to call fouls. We cannot stoop to their level but we must understand that the old rules are dead and gone.

Conservatives really are behind the 8-ball when it comes to dealing with leftists – cheating, even sorta-cheating and coercion and lying aren’t typically most conservatives go-to solutions. We aren’t naive so much as unpracticed in the art of Machiavellianism.

In the field of personality psychology, Machiavellianism is a personality trait centered on manipulativeness, callousness, and indifference to morality.

Leave a Reply