OPINION: This article may contain commentary which reflects the author's opinion.
Liberal Harvard Law School professor emeritus Alan Dershowitz says he believes the federal judge who handled former Alaska Gov. Sarah Palin’s defamation lawsuit against The New York Times has made a “mistake” that could lead to a redefinition of the term and give Palin a good case on appeal.
Dershowitz’s remarks during an interview with Newsmax TV came after U.S. District Judge Jed Rakoff noted in an opinion he would toss her lawsuit before deliberating jurors had even returned a verdict, which was then relayed to jurors via push notification, something that the judge may not have taken into account.
“I was very surprised,” Dershowitz told Saturday’s “America Right Now,” in reference to Rakoff overlooking the notifications.
“I know Judge Rakoff. He’s a terrific judge, but he made a mistake here, and the Court of Appeals will discount the jury verdict,” he continued.
“The Court of Appeals will take this case on the assumption that the judge called the jurors all in and said, ‘oh, by the way, ladies and gentlemen of the jury, while you’re deliberating, I want you to know I’ve dismissed this case, and so what you’re doing is all moot,'” Dershowitz continued.
“That’s the way in which the court will deal with it. It will discount the jury verdict because the jury verdict may very well have been influenced. And we know jurors were aware of that judgment,” he continued.
Now, Dershowitz told host Tom Basile, Palin’s appeal may lead to a changing of the libel standard regarding the “concept of malice.”
“Now, whether the Court of Appeals will say there was enough evidence to establish malice, that’s the hard question, and that issue may go to the Supreme Court, and we may see a redefinition of the concept of malice,” he added.
Dershowitz noted the mistake of ignoring the possibility the jury would get alerts on their cell phones was made because of a concerted effort by Judge Rakoff to write an opinion on the case that he otherwise would not be permitted to officially file.
“The judge should have either dismissed before the jury went into deliberate or wait until the jury verdict came back,” Dershowitz said. “But the judge wanted to write an opinion, and if the jury verdict came the way it did – in favor of The New York Times – the judge would have no opportunity to write an opinion.
“So, he wanted to write an opinion, and the only way to do it is in the middle of jury deliberation, because if he did it at the beginning of jury deliberations, then the issue would be a legal one on appeal.
“He wanted to make an edict. He wanted to have a verdict in his favor, and he wanted to have an opportunity to write, and it may come back to bite him in the end,” the famed liberal lawyer continued, adding that Palin’s attorneys may be able to use Rakoff’s mistake to her advantage on appeal.
Last week Reuters reported on the push notification:
The case highlights the increasing difficulty for jurors to avoid media coverage of high-profile cases, and could provide Palin, a former Alaska governor and Republican vice presidential candidate, with grounds to appeal or to seek to have the verdict overturned, legal experts told Reuters.
…Rakoff said in open court but outside the jury’s presence that he would dismiss the case regardless of what the jury decided because Palin had failed to prove that the Times acted with “actual malice.”
In an unusual move, the judge did not tell them what he had decided, while repeating his caution that they avoid news coverage of the trial.
The nine members of the jury unanimously ruled against Palin, deciding that The Times did not defame her in a story from 2017.