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The Palin Trial: It Ain’t Over ‘Til It’s Over

Was the Judge naïve, foolish or perhaps manifesting something deeper by believing his order of dismissal would not be discovered?



Sarah Palin

The federal district court jury hearing the defamation trial against The New York Times brought by Sarah Palin, the former Governor of Alaska, reached a verdict that the New York Times was not liable. Case over? Not quite.

While the jury was deliberating, the presiding Judge Jed Rakoff issued an order dismissing the case. He ruled, additionally, that he would allow the jury to continue to deliberate and reach a verdict which would be a basis for an appeal by Palin if the jury found in her favor against the New York Times. In an article jurors receive push alerts of judge’s ruling, it was disclosed that several of the federal jurors who rejected Sarah Palin’s defamation lawsuit against the New York Times received “push notifications” on their phones informing them that the judge had dismissed the case a day earlier.

An excellent summary of the case to date is presented in an article by Paul Mirengoff posted on, Judge Tosses Palin Case. Mirengoff also addresses an evidentiary ruling by Judge Jed Rakoff not presented in the many other blogs and posts I have seen. Judge Rakoff’s ruling is perplexing and may illustrate a bias that could cause an appellate court to reverse the Judge Rakoff’s ruling and the jury’s finding.

Judge Jed Rakoff has ruled that Sarah Palin’s libel suit against the New York Times over a 2017 editorial that falsely said she incited violence against Gabby Giffords and others fails due to lack of evidence that the Times knew what it wrote about her was false or that it acted recklessly in publishing the editorial. Judge Rakoff will allow the jury, which is in its second day of deliberations, to reach a verdict. That way, if he’s reversed on appeal based on the current legal standard for suits against public figures, and the jury finds for Palin, he can enter a verdict in her favor.

Mirengoff acknowledges that he didn’t follow the trial closely enough to know whether Rakoff is correct in concluding that Palin didn’t present evidence sufficient to allow a jury to find that the Times acted illegally under the stringent standard applicable when public figures are sued for defamation. I’m confident, as Rakoff said he is, that Palin will challenge that standard on appeal.

The standard was set by the Supreme Court. Thus, that Court would have to take the case and change the law. Two Justices — Gorsuch and Thomas — have indicated their willingness to revisit the issue, but it will take four to have the Court hear the case and five for Palin to prevail.

Mirengoff then proceeded to make a point about one of Judge Rakoff’s evidentiary rulings. According to this account, Judge Rakoff excluded evidence that the editor responsible for including the defamatory material, James Bennet, is the brother of Sen. Michael Bennet whom Palin attacked when he ran for the Senate. “There might be a sound basis for this evidentiary ruling. I haven’t seen a report of Rakoff’s reasoning. However, the ruling seems questionable to me. Why isn’t evidence that James Bennet may have had it in for Palin for personal and/or political reasons relevant to the question of malice?” Mirengoff adds: “On the witness stand, Bennet explained his mistaken attack on Palin with a shaggy dog story about how he initially looked for an instance in which a liberal politician incited violence but somehow ended up with an instance in which a conservative politician didn’t. Or something.”

“The jury might believe Bennet’s story,” Mirengoff added. “On the other hand, it might believe that Bennet wanted to attack Palin for personal and/or political reasons, and that’s why he didn’t perform the minimal work required to fact check what he wrote. (“Too good to check,” in effect.) Evidence that Palin attacked his brother, if the Times editor knew about this, might cause a jury to believe the second, more culpable story.”

The jury reached its verdict in favor of the New York Times. “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,” Rakoff wrote in a two-page order on Wednesday. Also, Judge Rakoff wrote that the jurors told his clerk that his ruling did not factor into their deliberations.

How could a person presumably as intelligent, informed and worldly as a federal district court judge is supposed to be not know that jurors would learn of his ruling or that there was an articulable risk that they or any of them would learn of his ruling? Was the Judge naïve, foolish or perhaps manifesting something deeper by believing his order of dismissal would not be discovered? In the words of the late great movie mogul, Samuel Goldwyn, “I can give you a definite maybe.”

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1 Comment

  1. Dexter Wilson

    February 21, 2022 at 1:28 pm

    I can’t wait for a Republican President and enough Senators and Congress persons who will remove such judges that do not follow the law because they keep their positions as long as they do the law and not make up their own. Better known as misbehavior. Yes for as simple as misbehavior they can be removed.

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Florida Gov Signs Law Making It Illegal To Protest Outside An Individual’s Home



Ron DeSantis

On Monday, Republican Florida Governor Ron DeSantis signed a bill that makes it a crime to protest outside an individual’s home.

“Sending unruly mobs to private residences, like we have seen with the angry crowds in front of the homes of Supreme Court justices, is inappropriate,” DeSantis said. “This bill will provide protection to those living in residential communities and I am glad to sign it into law.”

The law will go into effect on October 1, and once “this law takes effect, law enforcement officers will provide a warning to any person picketing or protesting outside of a dwelling and will make arrests for residential picketing only if the person does not peaceably disperse after the warning. Residential picketing will be punishable as a second-degree misdemeanor,” DeSantis’ office explained.

“It is unlawful for a person to picket or protest before or about the dwelling of any person with the intent to harass or disturb that person in his or her dwelling,” the text of the bill says. “Before a person may be arrested for a violation of this section, a law enforcement officer… or a local, state, federal, or military law enforcement agency must go as near to the person as may be done with safety and shall command any person picketing or protesting before or about the dwelling of a person to immediately and peaceably disperse. If any such person does not thereupon immediately and peaceably disperse, he or she may be arrested for a violation of this section.”

The new law comes in response to leftist protests outside the homes of Supreme Court justices following the leak of a draft of a Supreme Court majority opinion that would overturn Roe v. Wade was leaked to Politico.

“Roughly 100 protesters appeared outside Justice Brett Kavanaugh’s house, where they carried signs and chanted slogans before walking a half-mile to Chief Justice John Roberts’s home, then back to Kavanaugh’s home, where police ordered them to leave the area,” The Washington Examiner reported last week.

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SCOTUS Rules Federal Courts Do Not Have Power To Decide If Illegals Will Be Deported



Supreme Court

On Monday, the Supreme Court ruled 5-4 that federal courts do not have the jurisdiction to decide whether noncitizens will be deported or allowed to stay in the country.

The case involved a couple from India — Pankajkumar Patel and his wife, Jyotsnaben, — who illegally entered the United States in the 1990s. They applied for “adjustment of status,” which would have made them both lawful permanent residents. United States Citizenship and Immigration Services (USCIS) denied their request after finding out that Patel intentionally falsely claimed he was a United States citizen in a Georgia driver’s license application.

Justice Amy Coney Barrett wrote the majority opinion for The Court and Justice Neil Gorsuch joining the three leftist justices in dissent.

“Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States. When noncitizens violate those rules, Congress has provided procedures for their removal,” Barrett wrote. “At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances.”

“Federal courts have a very limited role to play in this process,” Barrett continued. “With an exception for legal and constitutional questions, Congress has barred judicial review of the Attorney General’s decisions denying discretionary relief from removal. We must decide how far this bar extends—specifically, whether it precludes judicial review of factual findings that underlie a denial of relief. It does.”

The Court ruled that “Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings.”

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