In an opinion today, the Second Circuit ordered a retrial of Sarah Palin’s defamation suit against the New York Times (see our prior coverage here). The suit arises from an editorial suggesting that her political action committee’s use of “stylized cross hairs” over the districts of several members of Congress in online materials incited the mass shooter who killed six people and wounded many others (including Representative Gabby Giffords) in 2011.

The Second Circuit reversed on multiple grounds, one of which relates to the unusual circumstances surrounding Judge Rakoff granting the Times judgment as a matter of law while the jury was still deliberating.  Although the jurors likewise found the Times not liable, certain of them received “push notifications” on their phones about Judge Rakoff’s ruling before reaching their decision. Judge Rakoff concluded that the notifications did not “remotely affect” the verdict, but the Second Circuit found otherwise, noting the “special position of influence” that a judge holds:

[W]e do find error in the district court’s conclusion that the jury’s verdict was not prejudiced because the jurors assured his law clerk that the push notifications “had not . . . played any role whatever in their deliberations.” It is well-settled that “an analysis of prejudice cannot be based on the subjective reports of the actual jurors.” And, after applying the required objective test, we have no difficulty concluding that an average jury’s verdict would be affected if several jurors knew that the judge had already ruled for one of the parties on the very claims the jurors were charged with deciding. Given a judge’s special position of influence with a jury, we think a jury’s verdict reached with the knowledge of the judge’s already-announced disposition of the case will rarely be untainted, no matter what the jurors say upon subsequent inquiry.