The defense attorneys in Tuite v. Corbitt — the case in which Illinois’ innocent construction rule hung in the balance — have petitioned the state’s supreme court for a rehearing, on the grounds that even though the justices upheld the rule they misapplied it. But the petition isn’t half as strong as it could be.

The innocent construction rule (Illinois is one of few states that has such a rule) requires a judge to decide a defamation case in favor of the defense if the bench concludes that there’s some reasonable interpretation — not necessarily the most reasonable — of the language in question that isn’t defamatory. In this case defense attorney Patrick Tuite (pictured) sued on the grounds that a 2003 book about the mob, Double Deal, portrayed him as a corrupt fixer paid a million bucks to get aging mob boss Joe Aiuppa out from under federal charges. Attorneys for the authors and publisher countered that the book could be read as simply a tribute to Tuite’s legal skills. The court didn’t buy this argument and in December ruled for Tuite, but to the relief of journalists everywhere it rejected his request to dump the innocent construction rule. For my discussion of the court’s opinion, click here.

Writing for the court, Justice Thomas Kilbride declared, “These statements cannot reasonably be given an innocent construction…. We conclude that a defamatory construction of the disputed statements is far more reasonable than any innocent construction…. Any innocent construction of these statements would be strained and unreasonable.”  The petition for a rehearing is worth reading as an exercise in teasing out of Double Deal an innocent construction that seems less strained, less unreasonable. But the petition also chastises Kilbride — “with utmost respect” — for undertaking a “forbidden balancing process.” It points out that the innocent construction doesn’t have to be more reasonable or even as reasonable. If it’s at all reasonable the rule holds sway.

This is a decent argument, but it seems to me the petitioners missed a better one. As I explained in my earlier story, the bench can throw out a suit on the basis of the innocent construction rule. But if the bench doesn’t do that, then the suit continues to trial, where it’s up to the jury to decide if the disputed language is actually defamatory. The supreme court remanded Tuite’s suit to the circuit court, and if it now goes to trial and Kilbride’s opinion stands, the jury will be in the improper position of having had the state’s top court already tell it what to think.