Though a number of the jurors were now aware that Rakoff had ruled and that their verdict would be superfluous, they nevertheless came back to court the next day. Rakoff had them continue their deliberations rather than dismissing them, and — what a surprise! — they soon reached a verdict in favor of the Times. Now, thanks to these machinations, if Palin appeals, the Times will argue not only that the learned district judge ruled that her case had no merit, but also that the jury, after carefully sifting through the evidence, concluded that Palin failed to prove her case.

There was no good reason for Rakoff to do this. The rules allow him to throw the case out and dismiss the jury before it retires to deliberate. They also allow him to permit the jury to reach a verdict, but then overrule that verdict post-trial. In the latter situation, the appellate court gets the benefit both of the reasoning of the trial judge, and of a verdict reached by a jury that deliberated in the usual manner (i.e., shielded from outside influences). But it is simply inexplicable for a judge to announce a ruling on the ultimate merits of a case while the jury is deliberating, in a way that makes it highly likely the jury will hear about the ruling, and then have the jury continue deliberating as if nothing has happened.

If it’s possible, this story gets even worse.

We know that the jurors found out about the court’s ruling against Palin because Judge Rakoff had his law clerk interview the jurors after they reached their verdict. There was no notice to the parties that the jurors were going to be interviewed by the judge’s staff (which Rakoff says is his standard practice). There was no opportunity for the parties to hear what the jurors said, or to question them about the impact on deliberations of reporting about Rakoff’s ruling. Instead, Rakoff issued a terse order, less than two double-spaced pages long, which — besides giving his spin on what happened — chastised the lawyers for failing to object to his senseless plan to announce his decision while the jury was deliberating.