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In NYT Trial Jury Following Judge In Ruling Against Palin Brings Push Notification to Fore Now in DDC

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, March 1 – In the case of Sarah Palin versus New York Times and James Bennet, on July 24, 2020 U.S. District Court for the Southern District of New York Judge Jed S. Rakoff held oral arguments. Inner City Press live tweeted them - and now the 2022 trial, below.

 After Judge Rakoff said he would dismiss, and some jurors saw it on push notifications on their phone and followed suit, on March 1 Judge Rakoff issued a detailed order including that "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. FN 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.

"FN: The Court is frank to confess that it was not familiar with the term “push notification” when it was raised by counsel for the Times and did not fully appreciate the potential for jurors to be involuntarily informed about the Court’s intended ruling through their smartphones. But it must also be remembered that when defense counsel referred to the term “push notifications,” Tr. 1307, the Court responded by doing what defendants’ counsel requested, i.e., reminding the jurors of their duty to disregard anything they heard about the case in the media. Defendants’ counsel sought no further relief (such as a direction to the jurors to turn off any automated alerts for the duration of the trial)" -

Inner City Press notes that in the District for the District of Columbia for the current US v. Guy Reffitt January 6 trial (which has no call-in line unlike Palin v NYT or the SDNY criminal trial before Judge Oetken, US v. Parnas), Judge Dabney Friedrich has explicitly told prospective jurors to turn their push notifications off. Inner City Press which has asked for call-in lines reported that on February 28, here. As has been said in other contexts, Rakoff has impact.

A telephone conference was held on February 23 and Inner City Press covered it, here.

It was short, and resulted in this: "Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 2/23/2022 with court reporter Khris Sellin. Plaintiff's post trial motions not to exceed 50 pages, all motions in a single submission. Defendants' response not to exceed 50 pages, replies are limited to 15 pages."

 On August 28, 2020 Judge Rakoff issued an order denying summary judgment and finding, inter alia, that "there "there is sufficient evidence to allow a rational finder of fact to find actual malice [by NYT / Bennet] by clear & convincing evidence." So, trial. Inner City Press will cover it - having previously reported Judge Rakoff jokingly perhaps offering that time slot to a criminal case and saying, Ms. Palin may just have to wait.

It was set to start on January 24, 2022. But as tweeted by Inner City Press, "Sarah Palin v. NYT will NOT start today. Palin has tested positive for COVID three times. Judge Rakoff says she can return for trial on February 3, unless she is showing symptoms."

 On February 3 the trial started. Inner City Press live tweeted it, thread here.

 On February 7, after this song things proceeded, with Inner City Press live tweeting, thread here.

 On February 8, questioning of the NYT's Ms. Cohn continued; Inner City Press live tweeted, thread here.

On February 9, witnesses ranged from James Bennet through Ross Douthat until (finally) Sarah Palin, the beginning. Inner City Press live tweeted, thread here:

On February 10, Sarah Palin continued on the stand, including cross examination by the NYT attorney, very focused on (lack of) damages. Inner City Press live tweeted, thread here.

 On February 11, the closing arguments; Inner City Press live tweeted, below.

On February 14, Judge Rakoff issued his legal ruling on the case, adding that it could be packaged for appeal with the jury verdict. Inner City Press live tweeted, thread here:

OK - in Palin v. NYT, first full day of jury deliberations now has jury note asking for transcript of Ross Douthat's testimony.

Judge Rakoff says, prepare the Douthat transcript for the jury, there's no need to redact questions with sustained objections (such redacts were made in the recent US v. Avenatti / Stormy Daniels trial). Inner City Press will live tweet jury notes and verdict

Now at 11 am Judge Rakoff tells Palin v. NYT counsel that he has to take a 10 minute call in another case. Inner City Press will follow him there - it's Wilson v. Triller, Inc. 21-cv-11228 (Palin NYT thread will continue here)

Programming note: Judge Rakoff just set a March 28 deadline, and Sept 8 trial ready date, in that other case. Now should be returning to Palin v. NYT - and we will too, thread to continue below

Update: Another jury note in Palin v NYT: Jury wants transcript of James Bennet's testimony. Judge Rakoff, says "work with the reporter, send it in." Thread will continue.

Now in colluquy with Palin v. NYT counsel, ranging for Latin derivation of "incite" to, now, Judge Rakoff's reminiscing on the Sayoc case (which Inner City Press also covered here… 

Judge Rakoff (to NYT counsel) - So you're saying that if you run an editorial that two plus two equals five, then later a correction that "there is no evidence that two plus two equals five," that amounted to admitting that the initial editorial was false?

Judge Rakoff tells Palin v. NYT counsel he's going to think about this for an hour or more, and that he has another matter at 2 pm. (That's Zurich American Life Insurance v. Nagel, 20-cv-11091 - may cover it, with eye on a DDC bond hearing). Thread will continue

He's back. Judge Rakoff: I'm going to give you my decision now, but I will only enter it after the jury comes back with its verdict. I want non-lawyers to understand that the question is whether the plaintiff failed to prove a central element to the claim

Judge Rakoff: I think there is one central element the plaintiff has not carried its burden on: actual malice. This is a high standard, under NYT v. Sullivan.

Judge Rakoff: So you'll have my decision on the law, and the jury decision, so the Court of Appeals will have both. The plaintiff can object to my decision. Anything else? No your Honor. Judge Rakoff: I've got another 3:30 matter. Ask the jury if they want to stay.

Judge Rakoff: Jury says it will continue until 5 pm.

Inner City Press@innercitypressUpdate: Judge Rakoff retakes the bench, asks if the parties want the jurors brought in face to face and told not to look at the media [which will be saying, case is decided, in a sense].

 Judge Rakoff: This might highlight it too much, if I keep saying it.

On February 15, a second shoe dropped, with the jury ruling against Palin.
And on February 16, this: "ORDER: It is the Court's uniform practice after a verdict has been rendered in a jury trial to have the Court's law clerk inquire of the jury as to whether there were any problems understanding the Court's instructions of law, so that improvements can be made in future cases. 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. These jurors reported that although they had been assiduously adhering to the Court's instruction to avoid media coverage of the trial, they 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. The Court also notes that when it proposed to the parties, during oral argument on Monday morning, to render its Rule 50 decision later that day but to permit the jury to continue deliberating so that the Court of Appeals would have the benefit of both the Court's legal determination and the jury's verdict, no party objected to this plan. Nor did any party object when the Court reconvened later that day, outside the presence of the jury, and the Court indicated that it was prepared to issue a Rule 50 decision at that time. Indeed, no party objected to this procedure at any time whatever. Nevertheless, in an excess of caution, the Court hereby brings the foregoing facts to the parties' attention. If any party feels there is any relief they seek based on the above, counsel should promptly initiate a joint phone conference with the Court to discuss whether any further proceedings are appropriate. SO ORDERED. (Signed by Judge Jed S. Rakoff on 2/16/2022) (kv)" Watch this site.

From February 11: Palin's lawyer: ... So Ross Douthat sent James Bennet two tweets, from Jonathan Chait and Chris Hayes, "another liberal journalist."[ALJ, also Administrative Law Judge]. 

Palin's lawyer: They switched the correction from Sarah Palin's PAC to "a PAC."

 Palin's lawyer: The Times is trying to argue that it's about Sarah PAC, not Sarah Palin. Reject that. The last witness, not on the editorial board but the Reader Center, called it the "Sarah Palin editorial."

Palin's lawyer: Notice how in their correction they don't mention Sarah Palin once. It's up to you to decide if that's because they don't like her politics.

 Palin's lawyer: The Republican baseball practice shooter, there was anti-Trump politics in his social media, it was reverse engineers. But here, my client became the casualty of their politics. She doesn't like to complaint. Suck it up, cupcake.

 Now NYT lawyer's closing argument (which, Judge Rakoff notes, will be broken in half by jurors' lunch). NYT lawyer: The judge cautioned you, when you get back to the jury room, work together to remember the evidence.

 NYT lawyer: What's shocking about the closing we just heard if they shift to opinion. The opinion of Mr. Bennet, of Tom Friedman. In this country you're allowed to have opinions. Opinions can't be wrong.

NYT lawyer: This honest mistake made James Bennet stay up all night thinking about it. For Governor Palin to prevail in this case she needs to show you it was not an honest mistake, but that it was intentional defamation, or reckless.

 NYT lawyer: The Editorial Board is there to express shared values. Take yourself back. President Trump had just been elected. This a county awash in misinformation. We needed to say something about it. The Times made a natural connection to Gov Palin

 NYT lawyer: They could have called Bob Semple -- Judge Rakoff: Jurors, either side could have called him. NYT lawyer: Yes, though could have called him-- Palin's lawyer: Objection Judge Rakoff: The point is, the not-calling could give rise to an inference. Or not.

 NYT lawyer Axelrod: So he went an hour and 45 minutes and I objected only once. Now he -- Objection!

Judge Rakoff: He had every right to object. This is not proper argument. NYT lawyer Axelrod: Bob Semple said something about NRA. Who cares? It's irrelevant. NYT lawyer: If we intended to defame Governor Palin, would it have done straight to James Bennet, and not like this, just a fluke?

NYT lawyer Axelrod: James Bennet was sitting on his couch. Maybe it was watching SportsCenter. The point made in the editorial is that both shooting took place in a political environmental. He wrote, Maybe we don't know. Maybe he was watching the Mets game

NYT lawyer: Governor Palin is showing no credible evidence of harm. James Bennet didn't add Sarah Palin's name - Elizabeth Williamson did!

 NYT lawyer: The editorial ends by praising Donald Trump! It wasn't anti-Republican. Look at the website, Governor Palin wasn't even in the headline.

 NYT lawyer: Look at James Bennet here at 5:08 am, rally his people to make a correction. If Mr. Bennet knew that was false, why would he fall on his sword? And like Linda Cohn told you, the Times has a policy of not repeating the error in a correction.

NYT lawyer continues: It is not enough for that to prove that a newspaper like the New York Times made a mistake. That's not good enough.

 NYT lawyer: If James Bennet had intended to falsely charge Gov Palin, why did he link to the ABC piece? Did he make a mistake? Yeah. But there was no motive to go after Governor Palin.

NYT lawyer: Mr. James Bennet's reputation is incredibly important to him. We all saw how you looked at him, while he was on the stand... Even conservative columnist Ross Douthat said he had a lot of respect for him

NYT lawyer: Gov Palin says her reputation suffered harm. There's no evidence in this case of that. Her lawyer is pushing a conspiracy theory. Governor Palin has brought this case for money.

OK, last of the arguments - Palin's lawyer's reply argument: Look at Elizabeth Williamson's draft - it's not in it. Linda Cohn's? Not there. It came from Mr. Bennet. He tried to reverse engineer the facts.

Palin's lawyer: Mr. Bennet said he associated this violence with the right. Opinions are fine; false facts are not.

 Palin's lawyer: It's been a privilege talking to y'all. If you want to go nominal [damages], go nominal.

 Judge Rakoff: We'll take a 5 minute break to find if you want to stay late to hear my instructions. If not, we'll do it Monday. Jury leaves. Jury returns.

Judge Rakoff: Has the jury reached a verdict... on staying? [Laughs]

They will stay and get legal instructions / jury change now.  Judge Rakoff gets in HEPA filtered counsel box and launches into it. This could take a while

 Early on February 8, Palin's lawyers put in a memo on their entitlement to punitive damages: "At the February 7, 2022 Charging Conference, Defendants suggested certain changes to the Court’s proposed jury instruction on punitive damages based on Morsette v. “The Final Call,” 309 A.D.2d 249, 254 (1st Dep’t 2003). Specifically, Defendants claim Plaintiff is only entitled to punitive damages if she proves that the Defendants’ “sole motivation in publishing the challenged statements was hostility toward and a desire to injure the plaintiff.” See Defendants’ Proposed Revisions to Instruction No. 17 (provided at the Feb. 22nd Charging Conference). Defendants’ proposed revision improperly seeks to limit the grounds upon which Plaintiff can prove her entitlement to punitive damages and flies in the face of well-established law. As recognized by the Second Circuit in DiBella v. Hopkins, 403 F.3d 102, 122 (2d Cir. 2005), “[u]nder New York law, punitive damages in a defamation case are justified “‘to punish a person for outrageous conduct which is malicious, wanton, reckless, or in willful disregard for another's rights.’” (quoting Prozeralik, 82 N.Y.2d at 479–80) (emphasis added); see also Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163 (2d Cir. 2000) (“all of the relevant circumstances surrounding the dispute” should be considered in establishing entitlement to punitive damages)."

  Back on January 19 the New York Times filed its proposed questions for jurors, including "do any of you believe that the New York Times has a bias against certain political parties or issues?"Also, do you know Ross Douthat? Andrew Sullivan? Robert Semple?

On January 20, Sarah Palin's lawyers filed their proposed questions, including "Have you followed any recent high profile court cases closely?" Can you say, Ghislaine Maxwell? We'll be there.

On January 17 - MLK Day - the New York Times filed a request that juror before opening statements be read a statement including that "Plaintiff claims that two statements in the Editorial falsely communicated to readers that she directly caused Jared Loughner to shoot people in Arizona in 2011." Then, the cross-hairs. Watch this site.

On January 11, Judge Rakoff convened a pre-trial session. Inner City Press live tweeted it here.

 The case is Palin v. The New York Times Company, 17-cv-4853-JSR (Rakoff)


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