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SCO v. IBM Hearing Date Changed to April 23rd at 2:30 PM Before Judge Benson ~pj
Saturday, February 11 2012 @ 03:33 PM EST

There's been a slight change in the hearing date for the upcoming SCO v IBM hearing regarding SCO's desire to partially reopen the case. The new date is April 23, 2012 at 2:30 Utah time in Room 246. It's set to be heard by Judge Dee Benson, the new judge assigned, who, I gather, was unable to find a way to recuse himself.

Kidding. But there were a lot of recusals on this case.

Here's the latest:

02/07/2012 - 1105 - ***AMENDED*** NEW DATE AND TIME NOTICE OF HEARING ON MOTION re: 1095 MOTION to Reopen Case : Motion Hearing set for 4/23/2012 02:30 PM in Room 246 before Judge Dee Benson. (reb) (Entered: 02/07/2012)

So, it's Judge Benson. I surely hope you can go to the hearing, some of you, and send us a report.

Old timers here at Groklaw will recall that it was Judge Benson who presided over the Caldera v. Microsoft litigation. That means that despite many of the sealed documents being destroyed by his court order in 2003, this judge knows the complete story, including the side trip initiated by Microsoft in the Microsoft v. Novell antitrust litigation. Not that it helped them at all. Microsoft has filed its motion in that case to have the judge toss out Novell's claims as a matter of law, and I'll get that document up for you next.

In addition to the materials I gathered for you about Judge Benson earlier, here's a bit of info from the Federal Judicial Center website. As you can see, he was "Chief of staff, U.S. Sen. Orrin Hatch, 1986-1988", a detail I pointed out earlier. Here's a bit more detail, from the US Department of Justice.

Here's a recent, rather snippy article about him in the Salt Lake Tribune:

When attorneys for DeChristopher claimed they had it on good authority that Sen. Orrin Hatch, who was instrumental in getting Benson the judicial appointment, had discussed with Benson the proper sentence DeChristopher should get before the actual sentencing, Hatch and Benson denied they ever had such discussions.

But I wrote a few years ago about how Benson inadvertently embarrassed Hatch when Benson was on a panel at a Utah State Bar convention in Sun Valley, Idaho. Benson remarked that Hatch spoke to him while he was hearing a case in 2004 that challenged the constitutional validity of the Grand Staircase-Escalante National Monument and told the judge that he knew that he would ďdo the right thing.Ē

Benson told the story on the panel to show his independence, because he ruled in favor of the monumentís legal existence and he was under the impression that Hatch opposed it.

I don't understand why Hatch would be discussing any specific case with any judge, and so there was a bit of uproar about that. Since SCO is represented by Hatch's son, I can't help but hope there is no such discussion in this case. Then again, Utah is Utah. Judge Dale Kimball was appointed by Senator Hatch as well, and that worked out just fine. So we'll just have to wait and watch. Here's a rebuttal to the Salt Lake Tribune article, written by an attorney who practices in Utah, Curt Bentley of Bentley Briggs & Lynch, who was appalled at how quickly people assume bias on the part of judges, just because they may rule contrary to one's wishes, and he raises some important points to keep in mind:
In the vast majority of cases, our judges get it right. But if they ever miss one (which, I understand, does have major effects on the person whose rights are negatively affected ó and I canít say whether Judge Benson missed one in the Dahl case) weíre often not willing to give them the benefit of the doubt, but immediately attribute the worst motives to them, accusing them of misconduct, fraud, or even treason. And then we wonder at the fact that neither side in a political debate trusts the judiciary, and we shake our heads in amazement when the Utah legislature denies a qualified, distinguished, near-universally admired judge a place on our appellate courts because they disagreed with one of his rulings.

Itís a good thing that our judges are protected from political retribution for their sentences, because, if they werenít, retribution would, it seems, be all too quick in coming. Judge Benson is a distinguished judge who has served this state well in multiple capacities. I suspect he would be the first to admit that heís probably gotten a few decisions wrong in his 21 years. But that doesnít mean he sentences on race, religion, or political affiliation. And itís unfortunate that Rolly believes itís OK to claim that he does.

Politics ruins clear thinking, I've noticed over time, so I encourage everyone to wait and see. Remember how we thought, including me, that the new judge assigned to SCO v. Novell, Judge Ted Stewart, might show bias? I was totally, completely wrong about that fear, and so far, I have to say that Utah has been pretty impressive in handling a very difficult saga. Still, that close connection to Senator Hatch... well, I can't get it out of my mind altogether, all things considered. And the fact is, with so many recusals, there's hardly anybody left to call on. It's Judge Benson or Judge Stewart. And in Utah, if you stood in the street in Salt Lake City, and threw some confetti up in the air, at least some of it would land on somebody with a connection to Senator Hatch. He's been their senator a very long time.

Judge Benson not only has served in Utah, by the way. He completed a term on the FISA court in May. And he's co-author of a 966-page book for lawyers on the Utah rules of evidence, Mangrum and Benson on Utah Evidence. And Judge Benson has a twin brother, Dee Benson, who writes a column for the Deseret News, and who mostly seems to write about sports.

Keep in mind too, in the end, if the case is reopened, it's really up to the jury. A judge can tilt things, though they are not supposed to, but even if they do, the jury has its own mind and its own authority.


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