Rakoff To Palin: Stercus Accidit

After the jury went into deliberations, Judge Jed Rakoff informed the attorneys for both sides that he was granting the defendants’ Rule 50 motion, finding that no reasonable jury could conclude that the plaintiff proved malice. But this was Sarah Palin suing the New York Times and its inadequately woke now-ousted editorial page editor, James Bennett, so naturally it was going to be a big deal in the news. Judge Rakoff didn’t anticipate that.

Because this was a serious and case-dispositive motion, the Court did not rule precipitously. Rather, the Court reserved judgment, first so that it could hear the lawyers’ closing arguments and then, even after the jury had begun its deliberations late on Friday afternoon, so that the Court could receive further written and oral submissions from counsel. Ultimately, however, by the early afternoon of Monday, February 14, 2022, the Court had reached the firm conclusion that it would have to grant the motion for judgment as a matter of law and so informed the parties.

It’s unclear whether Judge Rakoff intended this to mean that if it were an unserious motion, he would rule precipitously, but his purpose was to explain that the time it took for him to decide the motion overlapped with the jury’s commencment of deliberations, so he had to make some additional decisions.

At that point, the Court could have simply entered final judgment in defendants’ favor and dismissed the jury. Instead, however, the Court, while announcing its decision, explained that it would allow the jury to continue its deliberations, so that, if the Court of Appeals were to disagree with the Court’s determination to dismiss the case as a matter of law, the appellate court would not have to send the case back for trial, since it would have the benefit of the jury’s verdict. Moreover, as a technical matter, the Court could then issue
its Rule 50 judgment, post-verdict, pursuant to Rule 50(b). While this approach was a bit unusual, neither side objected to it in the slightest.

There are two choices made here, one was to announce his Rule 50 ruling. The other was to let the jury complete its deliberations. The problem is that the two decisions had the potential for disaster.

Regardless of these procedural niceties, however, the Court never seriously considered hiding from the parties the firm determination it had reached to dismiss the case as a matter of law. This, as the Court noted at the time, would have been grossly unfair to both sides, who would have been left with the impression that the case was going to be determined by the jury’s verdict when it was not.

Would it have been “grossly unfair” to leave the parties with the impression that Palin hadn’t lost the case, one way or another, regardless of what the jury decided? If so, why let the jury continue? The putative purpose, to provide the circuit with a verdict in case the ruling was reversed, then protecting the integrity of the verdict mattered, regardless of the court’s “firm determination.” But by pre-announcing his ruling, Judge Rakoff didn’t do so.

After the jury had been excused, the Court’s law clerk discovered, during a routine inquiry, that a few jurors had inadvertently received “push notifications” (alerts automatically generated by news apps installed on their smartphones) containing the bottom-line of the Court’s intended Rule 50 determination. Although these jurors were adamant that this knowledge had not affected their determination of the verdict in the slightest, the Court promptly notified the parties of this information.

And so the drama came to be. The sincerity of the jurors aside, their being “adamant” doesn’t resolve the problem. People tend to believe well of their integrity when asked. But Judge Rakoff concluded that there was no harm, and hence no foul.

[[T]he Court is of the firm view that a few jurors’ pre-verdict awareness of news about the
Court’s intended Rule 50 decision did not nullify the jury’s verdict in any respect. But the more fundamental point is that any effect the push notifications may have had is legally irrelevant. The Court had already determined to dismiss Palin’s libel claim as a matter of law pursuant to defendants’ Rule 50 motion, and the Final Judgment reflected that determination. Even if one indulges the implausible hypothesis that the jury would have returned a verdict for Palin absent the news alerts, the operative final judgment would still have been the same: dismissal of Palin’s claim as a matter of law.

In other words, the jury verdict was just “belt and suspenders,” as he was tossing the case either way. And indeed, that should have come as no surprise. But what of the jury verdict?*

Although the Final Judgment ultimately rests on the Court’s dismissal of the action under Rule 50, that legal conclusion is reinforced by the jury’s verdict that defendants are not-liable. The Court continues to have great confidence in the integrity of the jury’s verdict, notwithstanding that a few jurors became aware, involuntarily, of the bare fact that the Court intended to dismiss the case as a matter of law. In a case attracting a high degree of public attention, it is inevitable that at least some jurors will encounter information outside the Court’s control, even if they are completely conscientious.

Here, of course, it was the timing of the Court’s announcement of its Rule 50 determination that increased the risk that some jurors would encounter some snippets of the Court’s legal conclusion, and that is unfortunate. But the jurors who saw the media coverage say they did as instructed: they turned away from the reports and set the information aside for the remainder of the deliberation.

The jurors, both those who reported awareness of the Rule 50 decision and the others, insisted to the Court’s law clerk that the information played no role whatsoever in their deliberations and did not affect the outcome. While some outsiders, totally unfamiliar with the exceptional jury in this case, have been quick to assume otherwise, the Court knows of no reason why the highly conscientious citizens who served as jurors in this case would be so firm that they were unaffected by this information unless it were true. The Court is thus left with the definite conviction that the information did not remotely affect the ultimate verdict.

Relying on the legal fiction that jurors do as they’re told, and rubbing the tummies of this particular jury as being especially conscientious, may be the best Judge Rakoff can come up with to paper over this glaring miscalculation. More to the point is that in high profile cases, it’s essentially impossible to keep jurors from learning things from the media they shouldn’t know, which suggests that high profiles cases and unsequestered juries don’t work. But this rather lengthy and prolix rationalization doesn’t make the problem go away.

The jury verdict, as a result, is no longer reliable no matter how well Judge Rakoff thinks of these conscientious citizens, but that doesn’t change his Rule 50 ruling. Rather than proffer such a prolix explanation, Judge Rakoff would have done better to invoke the ancient legal doctrine of Stercus Accidit. If his Rule 50 ruling couldn’t be kept from the jury, then it should not have been announced. Once it was announced, this should have been expected, whether counsel objected or not.

*I’ve broken up a very long paragraph from the opinion to make it somewhat more readable.

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