(This 16 Feb story refiles to add dropped words to last paragraph to say an appeals court found no evidence any juror was not impartial toward El Chapo)
By Luc Cohen
NEW YORK (Reuters) – Jurors in Sarah Palin’s defamation lawsuit against the New York Times received phone notifications that the judge had decided to dismiss the case regardless of their verdict before their deliberations had ended, a court filing showed on Wednesday.
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.
On Monday, U.S. District Judge Jed 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.
But the news traveled fast across online media platforms and on social media. A Times lawyer expressed concern on Monday to Rakoff in court that jurors might learn about it inadvertently, such as through push notifications on their cellphones.
“It’s a very difficult thing to ask jurors to do,” said Josh Dubin, president of Dubin Research & Consulting. “Media is so intrusive that you have an IV line into your veins that consists of media in all forms.”
On Tuesday, the nine-member jury unanimously ruled against Palin as well, finding that the newspaper did not defame her in a 2017 editorial that incorrectly linked her to a mass shooting six years earlier.
In Wednesday’s court filing, Rakoff wrote that “several jurors” told his clerk late on Tuesday that they had in fact received the phone notifications despite “assiduously adhering to the Court’s instruction to avoid media coverage of the trial.”
Rakoff wrote that the jurors assured his clerk that “these notifications had not affected them in any way or played any role whatever in their deliberations.” But if any party to the case was concerned, he said they should let him know promptly.
GROUNDS FOR APPEAL?
The trial was seen as a test of longstanding protections for U.S. media against defamation claims from public figures. Palin signaled before the trial that she would appeal if she lost.
Jurors are supposed to reach verdicts based on evidence presented in court.
Palin could successfully get the verdict overturned if she proves that coverage of Rakoff’s dismissal influenced jurors’ deliberations, said Melissa Gomez, president of MMG Jury Consulting in Philadelphia.
Palin’s lawyer Ken Turkel and a spokeswoman for the Times both declined to comment.
The jurors began deliberations on Friday, and spent about four hours deliberating on Tuesday – following Rakoff’s ruling -before reaching a verdict. The push notifications were sent out on Monday afternoon.
“You may have some people who say, ‘Okay, let’s go home, the decision has already been made,'” Gomez said.
U.S. judges have thrown out some verdicts when jurors do their own research.
In 2010, for example, a Florida appellate court overturned a manslaughter conviction because a juror looked up the definition of “prudent” in an online dictionary.
Dubin said a judge would have to determine whether a juror was biased by news coverage before overturning a verdict on that basis.
Last year, lawyers handling the appeal of the Mexican drug kingpin “El Chapo” from his conviction on drug-related crimes cited a Vice News report that jurors had tracked the case in the media during his trial.
An appeals court rejected that argument, finding no evidence that any juror was not impartial or harbored bias against El Chapo, whose real name is Joaquin Guzman.
(Reporting by Luc Cohen in New York; Additional reporting by Jonathan Stempel and Jody Godoy in New York; Editing by Noeleen Walder, Amy Stevens and Howard Goller)
