Halsey Frank: Palin trial problematic

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One of the basic functions of government is to right wrongs. When all else fails, we resort to the legal system to obtain justice. When life seems unfair, we sue in the hope of vindication. Even that doesn’t seem to be working well these days.

You may recall Sarah Palin, the former governor of Alaska, and vice-presidential running mate of Arizona Sen. John McCain, who ran against Barak Obama and Joe Biden and lost in the 2008 election. She gave a great speech at the Republican National Convention in St. Paul. So great that it prompted the media to wage a protracted campaign against her.

After losing, Palin went on to try a number of roles, including running a political action committee. In 2010, Palin’s PAC ran an ad that placed crosshairs over twenty congressional districts that it targeted to try to win. One of those districts was congresswoman Gabrielle Giffords’ in Arizona.

On January 8, 2011, while conducting a meeting with constituents outside a supermarket in Tuscon, Giffords was shot and wounded by Jared Lee Loughner. Loughner killed six people and wounded 13 others. He eventually pleaded guilty and was sentenced to life in prison. The media blamed the shooting on gun rights activists in general and on Palin in particular because of the ad.

Claims that Palin’s PAC’s ad caused the shooting were debunked because Loughner had been obsessed with Giffords for years prior to the ad running, and there was no evidence that he was even aware of the ad.

Then, on June 14, 2017 in Alexandria, Virginia, James Hodgkinson shot five people, including Louisiana Republican congressman Steve Scalise, while they were practicing for the annual congressional baseball game.

Later that day, The New York Times ran an editorial lamenting the vicious state of American politics. It used Hodgkinson and Loughner as examples. Editor James Bennet was the primary author of the editorial.

Notwithstanding a factchecker’s warning that the assertion wasn’t correct, Bennet blamed Palin for Giffords’ shooting. As originally published, the editorial read, “In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and six people, including a 9-year-old-girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

After others pointed out the error, The Times corrected the editorial to disclaim any connection between Palin’s PAC ad and Giffords’ shooting.

Twelve days after the editorial was published, Palin sued The Times for libel. Because she is a public figure, she had to prove not only that the assertion that she caused Giffords’ shooting was false, but also that The Times made the false assertion with malice. In this context, malice means that the Times made the assertion knowing that it was false, or in reckless disregard of whether it was false.

On August 29, 2017, Judge Jed Rakoff, a Bill Clinton appointee, dismissed Palin’s suit for failure to state a claim after a hearing in which Bennet was the only witness and testified that he was unaware that no connection between the ad and Giffords’ shooting had ever been established.

The judge found Bennet credible notwithstanding facts such as that Bennet had been editor of The Atlantic magazine when it debunked the claimed connection, and that the initial drafter of the editorial included a hyperlink to at least one of those Atlantic articles. He ruled there wasn’t enough evidence from which a jury could find malice.

The court of appeals reversed the dismissal and remanded the case for further proceedings, and the case went to trial at the beginning of February in New York City.

According to the docket, on February 14, 2022, while the jury was deliberating, Judge Rakoff granted judgment to The Times because he did not think that there was enough evidence from which a reasonable jury could find in Palin’s favor. Not surprisingly, the media broadcast that news far and wide, although some outlets reported that the judge planned to dismiss the case while others reported he had dismissed the case. Either way, the jury became aware that the judge thought Palin’s case was inadequate, and they found against her.

Judges are supposed to be neutral. They are supposed to avoid even the appearance of partiality. They are supposed to decide questions of law, and to let juries decide questions of fact such as whether Bennet acted with malice. Judges are not supposed to do or say anything that suggests to the jury how they should decide their issues. Those principles are especially important in high profile, politically-charged cases.

That said, it is a judge’s role to prevent a jury from returning a verdict that is unsupported by the evidence, and mental states like malice can be difficult to prove. Even so, it seems there was enough evidence from which a jury could reasonably find that Bennet recklessly disregarded the lack of connection between Palin’s ad and Giffords’ shooting while writing the editorial.

If Judge Rakoff thought otherwise, then he should have taken the case away from the jury, granted judgment in The Times’ favor and let Palin appeal. If he wasn’t sure, or he wanted to see whether the jury agreed with him, then he should have summarily denied The Times’ motion for judgment subject to their renewing it after the verdict and said nothing more.

But Judge Rakoff had already let his unfavorable opinion of Palin be known. As the trial was about to begin, Palin tested positive for covid, necessitating a delay. Judge Rakoff commented disapprovingly that of course, she wasn’t vaccinated, and the media widely reported that comment, too.

Whatever you think of Sarah Palin, she was entitled to a fair trial. It doesn’t look like she got one.

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