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A retrial probably won't be by a jury | 211 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
korrections here ------> corrections here
Authored by: webster on Saturday, September 22 2012 @ 07:09 PM EDT
`.

[ Reply to This | # ]

Time to get more popcorn posts go here.
Authored by: charlie Turner on Saturday, September 22 2012 @ 07:19 PM EDT
SCO is over, what, 9 years now... Hope this one is a little bit shorter, but not
betting on it.

[ Reply to This | # ]

Juror misconduct.
Authored by: Anonymous on Saturday, September 22 2012 @ 07:34 PM EDT
After a brief perusal, I don't see any mention of the Hanson
interviews. OR suggestion of juror misconduct. Unless that is
on pages 13 and 14.

[ Reply to This | # ]

pdf as text
Authored by: kh on Saturday, September 22 2012 @ 07:46 PM EDT
I did a very basic OCR. Result here

Pages are separated by a row of 9 dashes. The number column didn't work well.

I hope it's useful for someone to proof and format it.

[ Reply to This | # ]

Off Topic thread
Authored by: kh on Saturday, September 22 2012 @ 07:50 PM EDT
.

[ Reply to This | # ]

Off Topic Thread
Authored by: artp on Saturday, September 22 2012 @ 07:52 PM EDT
You know you want to drift off the subject now and then. You
have a little trouble paying attention to what others are
saying. Other matters seem so much more pressing now and
again. It isn't really a problem, is it?

No mention of Dickens or long trials here, please.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

News Picks Thread
Authored by: artp on Saturday, September 22 2012 @ 08:12 PM EDT
URL will be appreciated. Google may be our friend, but it
swamps us in millions of undifferentiated hits.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

  • schadenfreude - Authored by: Anonymous on Sunday, September 23 2012 @ 05:00 PM EDT
    • Poor Apple - Authored by: marcosdumay on Sunday, September 23 2012 @ 09:04 PM EDT
      • Blind Apple - Authored by: Anonymous on Sunday, September 23 2012 @ 10:41 PM EDT
Comes Goes Here
Authored by: artp on Saturday, September 22 2012 @ 09:01 PM EDT

See link above for "Comes v. MS"

See this discussion for why we have this thread.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley sinks ?

[ Reply to This | # ]

A retrial probably won't be by a jury
Authored by: jheisey on Saturday, September 22 2012 @ 10:13 PM EDT
I have read that due to California's budgetary woes they are planning to cut the
judiciary budget, which will eliminate the possibility of jury trials in civil
cases. If this becomes a reality, then any future retrial of the case will have
to be by a judge, and Samsung won't have to worry about any more strange jury
verdicts.

[ Reply to This | # ]

Samsung Asks for JMOL, or New Trial, or Remittur - Says Apple v. Samsung Trial Was Not Fair ~pj
Authored by: Tufty on Saturday, September 22 2012 @ 11:03 PM EDT
If phones had sharp corners the ladies around here would have trouble carrying
them without damaging a couple of delicate parts - ouchie. Round corners, very
functional. As far as sliding phones into pockets or pouches I was rounding
corners back, well several decades ago, so that one part would slide more easily
into another though that was aluminium jigs for testing.

---
Linux powered squirrel.

[ Reply to This | # ]

Apple: Mac users, avoid sharp objects
Authored by: IMANAL_TOO on Sunday, September 23 2012 @ 02:59 AM EDT
Apple: "a much nicer shape to have next to your ear and in your
pocket"

So, Apple themselves knew that their Mac customers couldn't be relied with sharp
objects. Hate to tell you I told you so. :)


---
______
IMANAL


.

[ Reply to This | # ]

The reasonable jury.
Authored by: Ian Al on Sunday, September 23 2012 @ 03:06 AM EDT
Try as I might, I could not see how Judge Alsup came to his view about what a
reasonable jury would find in Oracle v. Google. I just had confidence in his
opinion because of all the other aspects of the case that he dealt with and that
I could follow.

With all the pointers provided by ~mw about trade dress, the arguments about
trade dress, functionality and the market appeal of the cool not being trade
dress protectable, I cannot see how a reasonable jury would not agree with
Samsung on all the trade dress issues.

As far as prior art is concerned, I have vented my spleen enough on that issue.

The utility patents were interesting (even considering that I believe them to be
unlawful under US law [it's OK, there is no reprise here]). Samsung appear to
show that they were not infringed.

As for the problems with the jury verdict form and the jury verdict, that has
all been said by Groklaw and Samsung.

I'm not expecting Judge Koh to give her nod in agreement to this, but I am
really looking forward to hearing her opposing arguments and citations. My guess
is that she will come up with arguments about how the issues are inappropriate
for this sort of motion.

In which case, bring on the appeal!

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Shin was Apple's designer, and a former Sony designer, but didn't show up at trial
Authored by: IMANAL_TOO on Sunday, September 23 2012 @ 03:15 AM EDT
http:/ /www.idownloadblog.com/2012/07/30/apple-vs-samsung-us-trial/
" Shin Nishibori, the designer Apple hired from Sony to create a Sony-inspired iPhone prototype, no longer works for Apple and Nishibori’s lawyer wrote in a letter to the court yesterday that his client has no plans to testify in the upcoming trial."
Shin Nishibori wasn't even coming to the trial!

In my view, this would have been a very relevant witness to Samsung.

This makes wonder if Koh has been under some sort of threat to allow all this. This is so blatantly ... [redacted]



---
______
IMANAL


.

[ Reply to This | # ]

Ok things just got interesing... :-O
Authored by: SilverWave on Sunday, September 23 2012 @ 08:54 AM EDT
Proving "possible jury misconduct" looks very unlikely...

...Unless someone didn’t tell all they should have during voir dire?

But that the jury didn't follow instructions seems to be a slam dunk, the
confirmation of this given in the interviews after the trial.

>Samsung says a new trial is necessary "due to inconsistencies in the
jury's verdict on the '915 patent", in that the jury found that the Ace,
Intercept and Replenich devices don't infringed the '915 patent but all the
other accused devices do

This seems like a straight forward logical win for Samsung.

Interesting times :-)


---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

We can guess a lot about the blacked out region
Authored by: SLi on Sunday, September 23 2012 @ 10:59 AM EDT

Since the table of authorities is not redacted, I guess it's fair game to speculate on the contents of the blacked out section from the authorities and statutes. (PJ: If you think that making such guesses is ethically questionable for some reason, please tell me, and I'll refrain from doing so again on Groklaw.)

First, the single statute mentioned for page 2 is Fed R. Evid. 606(b)(1). This already is very revealing. The title of Rule 606 is "Juror's Competency as a Witness", and paragraph (b)(1) is:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

The table of authorities lists these cases for the relevant pages (2 and 3). I will list first the authorities for page 2, then the one for both pages, then those for page 3.

I haven't read them yet, but on a superficial inspection they seem very much related to juror disqualification and misconduct. Some summaries:

Dryer v. Calderon:

The court held that under the Sixth Amendment, a murder defendant is denied a fair trial when a juror obtains her seat by lying about family members' history of involvement with the criminal justice system."

United States v. Colombo:

This appeal principally concerns a juror's alleged misconduct. It is claimed that one member of the jury that convicted appellant deliberately violated her oath during the voir dire by failing to disclose that her brother-in-law was a government attorney and that she did so in order to sit on this case. We remand for a finding of fact as to whether her brother-in-law is a government attorney. If it is found that he is, appellant's conviction must be vacated.

US v. Gonzales:

1. Julio Gonzalez appeals from his conviction and sentence imposed for conspiracy, cocaine distribution, and money laundering. On appeal, Gonzalez raises four principal issues. He contends that the district court erred by: 1) overruling his challenge for cause to a juror; 2) barring him from presenting evidence going to a defense of duress and refusing to instruct the jury on duress; 3) deciding a material element of the money laundering scheme as a matter of law--namely, whether a federally run sting operation qualifies as a financial institution for purposes of the money laundering counts; and 4) admitting the testimony of an accomplice who testified in exchange for government leniency. While we find the second and third issues troubling, we reverse on the basis of the first.

Hard v. Burlington:

1.Thomas Hard appeals from a jury verdict awarding him compensatory damages for injuries suffered while working for Burlington Northern. He urges that jury misconduct, an inadequate damage award, and a verdict against the weight of the evidence require a new trial. We remand to the district court for an evidentiary hearing on the issue of juror misconduct.
[...]
3. After trial, Hard's attorney learned that juror Donald Fraser and his father were former employees of Burlington Northern or its predecessor, Northern Pacific Railroad. He moved for a new trial on grounds that Fraser concealed the identity of the former employer during voir dire and introduced extraneous and prejudicial information into the jury's deliberations. He presented the affidavits of three jurors stating that during deliberations Fraser made statements regarding Burlington Northern's settlement practices. The court refused to consider the affidavits, finding that they were excluded by Federal Rule of Evidence 606(b) and were the product of improper post-verdict interrogation. Hard v. Burlington Northern R.R., 618 F.Supp. 1463, 1465-68 (D.Mont.1985). The court also refused to hold an evidentiary hearing. It then denied Hard's motion for a new trial. Id. at 1468.

Casanas v. Yates:

On June 17, 2008, Petitioner Paul Casanas, a state prisoner incarcerated at Pleasant Valley State Prison, filed a petition for a writ of habeas corpus alleging three claims based on allegations that the trial court improperly investigated Juror Number Five's alleged misconduct and improperly imposed the upper term sentence. Respondent filed an answer and Petitioner has filed a traverse. Having read all the papers filed by the parties, the court DENIES the petition. The court grants a certificate of appealability on two of Petitioner's claims."
[...]
The state appellate court summarized the facts regarding this claim as follows: [...] the jury foreperson reported to the court that Juror No. 3 had admitted to having discussed the case with an outside party. The prosecutor, defendant and defendant's counsel were all present. The judge asked the foreperson to elaborate, and he explained: "In the process of our deliberating about the counts for--I believe it's two, three, and four, sex with an under-age individual, the--one of the jury members stated that this weekend he had a discussion about a buddy of his. And in the process of relating his thought to us about the charges, he said that his buddy said, 'Well, remember when you were seeing Becky? You've got to think of it that way.' [¶] And in that case, he stated that the jury member was 22 and the--Becky was 17, which means that--which implied to me that he had, in some ways, revealed some of the details of the case and was using external sources to figure out what was going on and reach a conclusion."

Gibson v. Clanon:

This is an appeal from a judgment of the District Court for the Northern District of California denying petitioners' writ of habeas corpus. The two petitioners, Gibson and Justice, are presently serving life sentences in California state prisons for the 1973 murder conviction of a prison guard at San Quentin. Gibson and Justice allege that the trial jury that convicted them impermissibly relied upon facts that were not in evidence. In doing so they claim they were denied their constitutional right to a fair trial. The district court, which reviewed the state court record, but did not take additional evidence, concluded that any error that may have occurred was harmless beyond a reasonable doubt. Our review of the historical facts in this case convinces us that there is a reasonable possibility that the jury's consideration of facts not introduced into evidence contributed to the jury's verdict. Accordingly, we reverse the judgment.

[...]

2. At one point during the deliberations, Juror Colin Grist went to an encyclopedia to confirm his belief that blood type "AB" was rare. He reported his findings back to other members of the jury. Jurors Chapman, Gauger and Cox remembered some comment by Grist. Grist was unsure whether he made the comment before or after the balloting on Justice.

3. Another juror, Mona Gauger, stated that while the jury was considering Kranzelic's testimony she had commented on the dosage of morphine. Other jurors were unsure what effect the morphine may have had on Kranzelic, which Gauger interpreted as a request for more information. She then consulted a medical encyclopedia from which she apparently concluded that the morphine dosage was too small to have affected Kranzelic's perceptions. At least eight other jurors remembered some comment by Gauger, but there was some disagreement as to exactly what she had said.

4. In both cases there were apparently some comments in the jury room to the effect that the jury should not consider this evidence.

Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co.:

1. This is one of several appeals before this panel relating to the Exxon Valdez oil spill litigation. The subject of this appeal is whether the $5 billion punitive damages verdict against Exxon, and the $5,000 punitive damages award against Hazelwood, should be set aside because of irregularities during jury deliberations. We affirm the district court order that it should not. This decision goes only to the motion to vacate the judgment for irregularities during jury deliberations. It does not purport to decide the issue of the amount of damages, compensatory and punitive, awarded to the plaintiffs.

[...]

6. One juror, Juror B, testified that the bailiff motioned him aside as he came to deliberations one morning and "said something about, you know, you guys, you're really having problems with her, or something like that, pulled his gun out, took a bullet out and said maybe if you put her out of her misery or something." Juror B said he might have told the jury foreman about it, but told no one else, and "it really shook me up." Juror B perceived the remark as a tasteless joke rather than as a threat or serious suggestion. The bailiff testified under oath that "I haven't heard anything so absurd in my life. Nothing like that ever came from me." The district judge ruled that "the court is not convinced that the incident ever occurred," but that if it did, it did not warrant a new trial, because Juror A never learned of the communication, and Juror B and the jury foreman did not understand it to be a threat directed at them.

7. The United States Marshal in Anchorage, John R. Murphy, directed the investigation of the alleged incident. Juror B passed a lie detector examination, and the bailiff's lie detector examination "indicated deception" in the opinion of the polygraph examiner, Investigator Robert Sheldon. [...]

United States v. Perkins:

1. Appellant Paul C. Perkins was convicted of conspiracy to obstruct justice in violation of 18 U.S.C. Sec. 3711 and obstruction of justice in violation of 18 U.S.C. Sec. 1503.2 Perkins appeals, claiming that the indictment was invalid, that the evidence was insufficient to support the jury's verdict, and that the trial court erred in denying him a new trial on the basis of jury misconduct. We find that, because of juror misconduct, appellant is entitled to a new trial; therefore, we reverse and remand.

[...]

46. Appellant filed post-trial motions for acquittal and for a new trial, together with affidavits stating that at 11:00 p.m. on the evening that the verdict was announced he received a telephone call from one juror and that two days later he received a call from another juror. Both jurors indicated that the verdict was not their verdict, that they had been pressured by the other jurors to vote for conviction, and that they succumbed to this pressure because they were physically and mentally exhausted. One of the jurors also reported that a fellow juror who had been "especially committed to return a 'guilty' verdict" had said that he knew Paul Perkins and had served on "some committee" with him. In a subsequent call to appellant's counsel, this juror related that the juror who said that he knew Paul Perkins also said that he knew where Dr. Scanks lived and "took issue" with defendant's testimony on this matter. The two jurors sent letters to the trial judge expressing their belief that the verdict was not their verdict.

[...]

71. Appellant Perkins alleges that there were two instances of juror misconduct in the course of his trial, each of which requires a new trial: (1) juror Goad withheld information during voir dire; (2) juror Goad injected extrinsic evidence into the jury's deliberations. We find merit in both claims.

(See 48-70 in US v. Perkins for quite an amusing case of a juror's inability to remember his prior court cases.)

About Seagate Tech and In re Velvin R. Hogan I couldn't find anything.

[ Reply to This | # ]

Footnote 3 HAD to be in there
Authored by: artp on Sunday, September 23 2012 @ 12:13 PM EDT
They quote the "Apple v. Microsoft" opinion back at them
about their last effort to reserve functional aspects of
software to themselves.

I had to chuckle. The irony is soooooo delicious. It's like
saying "You were wrong last time, and you're still wrong this
time."

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Samsung Asks for JMOL, or New Trial and Remittitur - Says Apple v. Samsung Trial Was Not Fair; Jury Messed Up ~pj
Authored by: Anonymous on Monday, September 24 2012 @ 12:10 AM EDT
Irony goes here

[ Reply to This | # ]

Exhibit 42 is a killer...
Authored by: Anonymous on Monday, September 24 2012 @ 01:28 AM EDT
especially the final non-highlighted paragraph... in fact all of it is
dynamite...

[ Reply to This | # ]

Samsung Asks for JMOL, or New Trial and Remittitur - Says Apple v. Samsung Trial Was Not Fair; Jury Messed Up ~pj
Authored by: Torinir on Monday, September 24 2012 @ 05:20 AM EDT
I wonder if this will affect whether Judge Koh even gets to preside over the
second case between Apple and Samsung.

---
Gaming like it's going out of style.
West/Zampella vs Activision should be covered on Groklaw. :o

[ Reply to This | # ]

Questions questions
Authored by: Anonymous on Tuesday, September 25 2012 @ 03:24 PM EDT
I have sooo many questions...

1. If a new trial is granted, what does that do to Samsungs
efforts to get the preliminary injunction vacated? I mean
isn't a new trial like a reset? So if the jury's verdict
doesn't stand doesn't that include the verdict that the
Galaxy Tab 10.1 doesn't infringe? Wouldn't Apple have a
compelling argument that the injunction to should stand
based on this?

2. If it goes back for a new trial... would only the trial
stage have to be done again? Would anything else open back
up? Summary judgments, discovery? Or would it only be the
trial stage?

3. Is there any indication that Hogan wasn't truthful in
voir dire? Other than his promise to follow instructions?
What I mean is, does anyone see any indication that he
attempted to hide anything from his past? Or hide a bias he
might have?

I understand that he did not follow instructions but did
exactly what he was instructed not to do. However, I also
believe it may not have been his intent to do so. In other-
words I am not prepared to believe that as he sat in voir
dire and answered the questions that he was thinking, I'm
going to do exactly what the judge told me not to.

I do not even believe that he realized that he was doing it
when he was doing it. i think he just got caught up in
things. I'm even willing to believe that had another juror
pointed out what he was doing and said, "We're not suppose
to do that." He would have modified his behavior. This may
not be true... but I'm generally like to believe the best of
people unless they prove to me that I should not (SCO).

So I'm wondering, is there any indication that during voir
dire he hid anything from his past, about his beliefs, or
about his bias? If he did not, I think the issue of juror
misconduct may be difficult to show.

Z

[ Reply to This | # ]

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