What Does The Palin Verdict Really Mean?

Sarah Palin lost her libel trial against The New York Times on Tuesday but a question lingers about whether she was treated fairly.

Palin, a 2008 GOP candidate for vice president, is not beloved by the powers that be. She is a gun-toting hick from Alaska who is not well read and who makes hokie references to “hockey moms” and “lipstick on a pig.” Palin, a former Alaska governor, is especially loathed by Harvard grads and urban elites.

Still, the beauty of the American justice system is that even the most despised are entitled to basic fairness and justice under the law.

It rankles that U.S. District Judge Jed Rakoff, 78, the semi-retired judge who presided over the trial, announced Monday that Palin had not met the high standard for malice to prevail in the case. He said he would dismiss the case regardless of the jury’s verdict.

The jury was deliberating at the time. Reuters reported Wednesday that jurors received phone notifications that the judge had decided to dismiss the case regardless of their verdict. Clearly Judge Rakoff’s pronouncement could have prejudiced the jury.

Timing Is Everything

It was Judge Rakoff’s job to tell the jury what the law is and the jury’s job to apply the law to the facts in the case.

The jury was in the process of deciding whether the NYT showed actual malice in 2017 when it published a preposterous allegation that a political ad by Palin’s political action committee incited the 2011 shooting of former U.S. Rep. Gabby Giffords and 18 others at a constituent meeting in Tucson. Indeed, the editorial said “the link to political incitement was clear.” The editorial was written by two NYT editorial writers and cleared by a NYT fact checker.

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Flynn Pardon Ends Costly Judicial Vendetta

The Code of Conduct for U.S. Judges requires judges to perform the duties of office “fairly, impartially and diligently.”

Americans have watched an unseemly spectacle unfold for many months involving a federal judge who has used scarce public resources to engage in what appears to be nothing more than a political vendetta.

That vendetta ended Thursday when President Donald Trump pardoned his former national security advisor, retired three-star Army general Michael T. Flynn, who pleaded guilty to making false statements to the FBI but then recanted.

Evidence emerged that high-ranking FBI officials, holdovers from the Obama administration, had orchestrated an ambush of Flynn to trap him into making statements that they could allege to be false.

After Attorney General William Barr ordered a review of Flynn’s case by a federal prosecutor, the Department of Justice in May sought to drop the charges against Flynn. The government said the evidence of FBI misconduct meant Flynn’s statements were not material to a legitimate investigation, which was an essential element of a false-statements offense.

That should have been the end of it. The prosecutor is uniquely capable of determining whether it can prosecute a criminal defendant. But it wasn’t .  


U.S. District Judge Emmet G. Sullivan of the District of Columbia refused to dismiss Flynn’s case.

In an unorthodox move, Sullivan appointed a retired federal judge to argue contrary to the DOJ’s position that Flynn should proceed with sentencing on his guilty plea. (Nevermind that the retired judge earlier penned an op-ed piece In the Washington Post stating the dismissal of Flynn’s case “reeks of improper political influence.”)

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Today’s “Hanging Judge” May Be Young And Female

A new study shows that younger female judges are tougher on serious crime than their male and older female colleagues.

Researchers found that, on average, younger female judges (under age 56.4) sentenced defendants convicted of “high harm” crimes to 24% more incarceration (4.9 years more) than did their male colleagues, and to 25% more incarceration (5.1years more) than did their older female colleagues.

The study, published in the Columbia Journal of Gender and Law, is entitled, “The Intersectionality of Age and Gender on the Bench: Are Younger Female Judges Harsher With Serious Crimes?” The lead author is Morris B. Hoffman, a Colorado judge and member of the John D. and Catherine T. MacArthur Foundation Research Network on Law and Neuroscience.

Although the title poses a question, the study concludes that younger female judges are significantly harsher in sentencing “high harm” crimes or serious felonies.

The researchers found that age, gender and the degree of harm of the crime standing alone did not account for the difference:  “Only when we considered age, gender, and harm levels together did we see these three factors impact—and impact substantially—the sentences imposed by these judges,”  Interestingly, length of service on the bench was not a factor.

The study offers no explanation for the findings, though one possible explanation is that younger women tend to be more punitive than men when it comes to men-on-women violence and crimes against children.

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Federal Appeals Court Chills Whistleblowing in the Judiciary

The U.S. Court of Appeals for the Fifth Circuit based in Louisiana has issued a decision that promises to chill future whistleblower complaints of judicial corruption in state and federal courts.

A three-judge panel of the appeals court on Jan. 14 dismissed a lawsuit filed by a staff attorney who complained  about alleged corruption by then Chief Justice Rogelio Valdez of the Texas Thirteenth District Court of Appeals and then was blackballed by Valdez in 2014 apparent in retaliation for his complaint.

The decision notes Bruce M. Anderson was required to swear an oath to report judicial misconduct when he was hired as a briefing attorney for a judge on the Texas state appellate court.

He complained in 2012 that Valdez doublebilled (at least ten times) travel expenses to both Valdez’ political campaign and the court’s local fund.

At the time, Anderson worked for Justice Rose Vela of the Thirteenth Court who, along with another Justice, Gregory Perkes, unsuccessfully sought an audit of a court fund controlled by Valdez. (Vela and Perkes also had a professional obligation to report Valdez’ alleged misconduct under the Texas Code  on Judicial Conduct but they did not do so.)

As of about two weeks ago, Valdez is no longer on the Texas court. He chose not to run for reelection and his term expired  on December 31, 2018.

After Vela’s term expired in 2013, both she and Anderson left the court. He provided additional information about Valdez’ alleged corruption  to the Public Integrity Unit of the Travis County District Attorney’s Office in his capacity as a private citizen.

In 2014, Justice Perkes offered Anderson a position as senior staff attorney. When Valdez found out about this, he told Perkes that hiring Anderson was a “bad idea”  because, among other things, Anderson had a bad attitude. According to the 5th Circuit: “After Valdez told Perkes in May 2014 that he and the other justices did not approve of Anderson’s hiring, Perkes rescinded Anderson’s offer.”

The facts point to an open and shut case of retaliation against a whistleblower.

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Science Group Asks Congress to Change Sexual Harassment Laws

A study committee of the National Academies of Sciences, Engineering & Medicine is urging sate legislatures and Congress to pass new laws to better protect targets of sexual harassment from retaliation.

In a recently released report,  the Committee on the Impacts of Sexual Harassment in Academia states that current laws, policies and procedures don’t work because targets of sexual harassment fear retaliation if they report the perpetrator. The group stresses a change in culture and climate is necessary to halt sexual harassment in academia.

The committee, which began its work in 2016 prior to the #metoo movement, estimates that more than 50 percent of women faculty and staff and from 20 to 50 percent of women students “encounter and experience” sexually harassing conduct in academia.

The committee  includes scientists, engineers, physicians and experts in sexual harassment research, legal studies and psychology.

Judicial decisions encourage employers to achieve legal compliance and avoid liability, not to prevent sexual harassment.

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