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Opinion Sarah Palin’s attorneys prepare new salvo in New York Times case

Sarah Palin, 2008 Republican vice-presidential candidate and former Alaska governor, speaks with media in New York City on Feb. 15. (REUTERS/Eduardo Munoz/File Photo)

Attorneys for Sarah Palin are gearing up to contest the outcome of her defamation case against the New York Times, which concluded last week with a decision by federal Judge Jed S. Rakoff as well as a jury verdict — both in favor of the Times. In a telephone conference with counsel for both sides on Wednesday, Rakoff noted that the Palin team told him that they intend to file five motions. Those motions were “interesting,” commented the judge — an observation that didn’t come off as a compliment.

According to Rakoff, the motions would seek: his retroactive disqualification from the case; allowance for the plaintiff’s attorneys to interview jurors in the case; disclosure of “factual circumstances” concerning Rakoff’s communications with the media during the trial; reconsideration of Rakoff’s finding against Palin; and a decision to set aside the verdict for a new trial.

The full-court press from Palin’s side comes as no surprise, considering the drama in the final stages of the trial. After unremarkable testimony — tedious recitations of emails and Google searches — Rakoff threw the whole thing into disarray when he ruled in favor of the Times’s Rule 50 motion. Rakoff decided that there wasn’t enough evidence to support Palin’s claim that the Times had met the “actual malice” standard that public figures must establish when suing news organizations — meaning that the paper knowingly published a falsehood or acted in “reckless disregard” of truth or falsity.

That Rakoff sided with the Times wasn’t all that unusual: It’s tough to prove a journalist’s state of mind when publishing a factually tainted report. The curious part of the decision was the timing: It came after he’d dispatched the jury to deliberate on Feb. 11 but before they’d submitted a verdict. As he announced his intention to rule for the Times, he discussed his thought process: “The more I thought about it over the weekend,” said Rakoff on Feb. 14, “the more I thought that [waiting] was unfair to both sides. We’ve had very full argument on this. I know where I’m coming out and I ought to therefore apprise the parties of that.”

He said that he expected an appeal in the case, and that the “court of appeals will greatly benefit from knowing how the jury decided.” The next day, the jury found the Times not liable for defamation. Following the verdict, a law clerk from Rakoff’s chambers discussed the proceedings with jurors. A filing from Rakoff noted that “several jurors” had “involuntarily received ‘push notifications’ on their smartphones that contained the bottom-line of the ruling. 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.”

As for the request from Palin’s attorneys for Rakoff’s communications with the media during trial, Rakoff said that there were “zero.” He did note that, after his final judgment had been entered, he gave a statement to a Bloomberg reporter related to the “push notifications” situation. “If counsel still wants to file a motion about all that, he is welcome to do so,” said Rakoff on Wednesday afternoon.

The “push notifications” problem will surely provide at least one of the avenues for the expected Palin motions described on Wednesday by Rakoff. After discussing logistics for the filing and consideration of those motions, Rakoff ended the telephone conference with none of the banter that animated many of his interactions with counsel during the trial.

The news from Rakoff’s chambers confirms that Palin isn’t backing away from her defamation claims, despite the double-whammy decisions from a sitting federal judge and a nine-person jury. Her attorneys Ken Turkel and Shane Vogt made measured, astute arguments about a flawed editorial process that resulted in an errant editorial slamming Palin and her political action committee. But they fell short of producing a smoking gun indicating “actual malice” on part of the Times.

And no appeal or new trial is likely to change that. Whatever Rakoff’s alleged missteps, the core facts of this matter favor the Times: James Bennet, the editorial page editor at the time of the piece, added the errant language, sent it to the original author for another look, then published corrections after his staffers researched the mistake. Those aren’t the actions of a practitioner of “actual malice,” no matter the judge or the jury.