(Photo by Alex Wong/Getty Images)
Judge Beryl Howell has had about all she can take of Rudy Giuliani’s bullshit.
Just days before trial in the defamation case brought by Atlanta poll workers Ruby Freeman and Shaye Moss, Rudy announced that he didn’t want to go before a jury after all. In fact, he’d just discovered that he had an absolute right to a bench trial! So, case closed, right?
Well, no.
Last night Judge Howell denied the defendant’s “trial brief” in a scathing order calling him out for yet another attempt to throw a wrench in the works of the defamation suit occasioned by Giuliani’s false claim that the defendants tabulated thousands of fraudulent ballots on election night. After suffering a year of threats and harassment, Freeman and Moss sued Giuliani, along with the parent company of One America News, in December of 2021.
OAN settled fairly quickly, but Giuliani spent upwards of a year “repeatedly flout[ing] basic preservation and production duties, frustrating plaintiffs’ procedural rights to obtain any meaningful discovery in this case.” At the end of August 2023, Judge Howell issued a default judgment as penalty for Giuliani’s bad behavior, and warned him that he was going to get a boatload of negative jury instructions if he didn’t get right with God (and the defendants).
In fact, he did not get right, and more sanctions rained down.
With voir dire scheduled to begin on December 11 and the motions deadline behind them, the parties were in the midst of negotiating jury instructions on November 20, when Giuliani filed a two-page “trial brief” asserting that there was no right to a jury trial in cases of default. Plaintiffs were understandably apoplectic at the prospect that Giuliani could deprive them of their Seventh Amendment right to a jury simply by refusing to engage in discovery.
And Judge Howell was scarcely more impressed:
Perhaps Giuliani’s submission is titled a “Trial Brief,” rather than a motion seeking to convert the scheduled jury trial to a hearing, in a fairly blatant effort to avoid being called out for filing an untimely pretrial motion. No matter how styled, however, a request for the Court to act is a motion, see FED. R. CIV. P. 7(b)(1) (“A request for a court order must be made by motion.”), and plaintiffs correctly point out that Giuliani’s motion is untimely, Pls.’ Opp’n at 4–7. Nevertheless, the merits of this request are addressed for clarity of the Court’s reasoning should this issue be raised on any appeal.
The court acknowledged that “the D.C. Circuit has not addressed the precise issue presented here, namely: whether a plaintiff’s constitutional and procedural right to a jury trial on damages survives the entry of default as to liability against a defendant, who has appeared but been sanctioned with default for repeated failure to comply with discovery obligations and orders.” But looking to other jurisdictions, Judge Howell concluded that no party has the absolute right to either a jury or a bench trial in cases of default, and that the issue is squarely within the discretion of the court.
Judge Howell noted that Giuliani intends to argue that the plaintiffs’ damages are “nominal,” while the plaintiffs are seeking punitive damages — both of which are issues usually decided by jurors.
“Quantification of damages, particularly where, as here, such calculation will require resolution of factual disputes and credibility assessments, falls within the traditional province of a jury,” she wrote.
After extended throat-clearing about Giuliani’s spectacularly bad conduct in this case, the court concluded by denying him the requested relief:
In sum, having already scuttled plaintiffs’ right to “obtain relevant evidence both to support their claims and rebut any defenses,” Default Judgment Decision, 2023 WL 5600316, at *12, Giuliani will not now be rewarded with his effort to abrogate plaintiffs’ properly pleaded demand for a jury trial on damages, particularly under the circumstances of the instant case, where the quantification of damages, an issue Giuliani contests, will require the evaluation of witness credibility and the resolution of factual disputes—matters within “the exclusive function of the jury,” Huggins, Ltd., 727 F.2d at 1234—and where sustaining Giuliani’s tardy objection to a jury trial would compound the prejudice to plaintiffs.
So next week, Rudy can get his ass to DC and explain to bunch of jurors how actually it’s no big deal to be deluged with racist threats and have to move out of your house and live in fear.
Good luck with that, dude.
Freeman v. Herring Networks [Docket, via Court Listener]
Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast.