

Samsung claims Apple patent verdict tainted by jury foreman - njx
http://news.cnet.com/8301-13579_3-57524935-37/samsung-claims-apple-patent-verdict-tainted-by-jury-foreman/

======
bitcartel
So the question now is, when and how did the lawyer find out about Hogan's
failure to disclose...

From Groklaw:

"Were you wondering how Samsung found out about the lawsuit that Hogan failed
to mention in voir dire, the litigation between Seagate and Hogan that Samsung
dug up? Apple was, as I'll show you.

You wouldn't believe it if it was in a movie script. The lawyer who sued Mr.
Hogan on behalf of Seagate back in 1993 is now married to a partner at Quinn
Emanuel, the lawyers for Samsung."

~~~
jfoutz
I couldn't give you a comprehensive list of my wife's acquaintances from 20
years ago. I could name a few. But sometimes coincidences are just
coincidental.

------
debacle
This Hogan fellow just keeps getting better and better.

~~~
ohashi
For Samsung.

------
w1ntermute
This is a great first step, but it's going to be a long, hard battle from here
on out. Any American jury is going to be biased against a foreign company when
it comes to charges like this, one of the reasons why I feel that it should
have been tried by judges, particularly considering the complex and technical
nature of the subject matter.

~~~
wtvanhest
_Any American jury is going to be biased against a foreign company_

I'm not sure if this is true. I don't think most American's see Apple as an
Apple Pie type of American company. I could be wrong, but I have never heard
anyone say, I bought an iPad because it is an American product.

I say this as someone who is probably more supportive of American companies
and not really supportive of Apple at all, so maybe I have my own bias, but I
don't think so.

~~~
randallu
Mostly on the radio I hear about Apple and Chinese labor, so they seem like a
multinational company more than an American company even though they do
"command and control" from the US.

Also they don't employ a huge number of Americans compared to other large
companies (and excluding retail they remain pretty small, esp. compared to
Microsoft). Maybe the valley is different too, because a large proportion of
the population are immigrants.

~~~
jjtheblunt
More data: they employ many Americans, and the campus is filled with them (of
all sorts of ancestries, not exclusively imigrants from India or China).
According to <http://www.wolframalpha.com/input/?i=aapl> they employ a number
of people adequate to sustain a revenue/employee of $2.351 million/year. The
factories are not Apple's, but are contracted manufacturers, the same used by
many others (Dell, etc).

------
ChuckMcM
So folks who have been wondering since day one after the trial what Samsung
was going to do, this seems to be the answer. Hard to prove that a jury
tampered with itself, but if they can construct a plausible grudge motive,
perhaps the judge will see it there way.

~~~
blrgeek
Actually it's not that hard in this case since it's not 'jury tampering' in
this case - merely 'juror misconduct'. They don't need to show motive even,
just that it happened.

The jury is not supposed to deliberate on matters of law - they are supposed
to weigh the evidence and deliberate on the specific questions they have and
the instructions they have. [added] What Juror's should/not do -- “was
applying his experience to question the law, not using his experience to
determine the facts”

For instance, they had specific instructions on what was patentable as a
design patent, and what constituted 'prior art'. The jury cannot use a
different definition of 'prior art' or deliberate on the definition of 'prior
art', or use their previous legal experience to expand or explain 'prior art'.
That would be considered jury misconduct.

This is why the jury is asked whether they can set aside their previous
experience and deliberate using only the evidence and instructions for this
case. Why is this necessary? Because matters of law could and do change, and
are not for the jury to take a call on. [Not talking about jury nullification
here].

~~~
politician
“was _applying his experience to question the law_ , not using his experience
to determine the facts”

If successful, this line of reasoning will have consequences for the doctrine
of jury nullification.

~~~
jlgreco
Unless I am mistaken, the laws that make jury nullification possible are
something that really only works one way. A jury can refuse to find someone
guilty, despite all evidence for whatever reason they wish, but I don't think
the opposite is true. An inbalance between 'guilty' and 'innocent' is built
into the system, for example you can appeal a guilty verdict, but cannot
appeal an innocent verdict.

At least I _hope_ my understanding is correct...

~~~
vidarh
Nullification is not tied to double jeopardy, but the _method_ by which it can
happen is far more restricted in jurisdictions where a not guilty verdict can
be appealed, as it requires that the jury is either entirely in agreement
(nobody talks about the nullification) or that the issue is simply not brought
up by jurors who wish to nullify just refuses to budge.

~~~
jlgreco
In what jurisdictions can a not guilty verdict be appealed? Am I understanding
correctly that the fact that nullification occurred would be grounds for an
appeal in those jurisdictions?

My thought here is that in jurisdictions where jury nullification is normally
possible and effective, it is only really effective if they give a not guilty
verdict. A guilty verdict, given "just because" (or whatever), could be
overturned in those jurisdictions, possibly even immediately by the judge.

~~~
vidarh
(this wall of text brought to you by procrastination)

Canada allows appealing not guilty verdicts.

Also Norway, which is the system I know best, as do a substantial number of
other European states, including e.g. Germany, France.

Norway (and most other European countries) do have forms of double jeopardy
protection, but in Norway as in many other European countries as well as
Canada, it does not attach until the case has been fully litigated and all
appeals exhausted. Instead it prevents the government from bringing the case
again once the case is _final_.

In Norway, the system has three levels. In criminal cases the lower court
usually hear cases with a panel of three co-judges, two of which are lay
persons selected from the jury pool. They deliberate together, and so
nullification is effectively impossible at this stage as the professional
judge can set aside a majority decision by the two lay judges voting together
if their decision is a clear misapplication of the law. This right is used,
but not frequently, given that the professional judge obviously in this system
has ample opportunity to discuss the issue with the lay judges.

The higher court (lagmannsretten) will in more serious cases have three
professional judges and a separate jury like in the US. In this case,
nullification would be possible, but if the three professional judges
unanimously believe that the evidence clearly indicates guilt, they can still
set aside the jury decision. If they set it aside, the case is then retried at
the same level without a jury, but with lay judges as in tingretten.

The last step is the supreme court, which only hears matters of law in the
case of criminal cases, so in criminal cases an acquittal on matters of fact
after (at worst) a second trial in lagmannsretten is almost certain to stand.
As in the US, once the supreme court has either heard a case or refused to
hear it (or neither side has appealed to the supreme court), the case is
final. This is the point where double jeopardy attaches in Norway (there may
be some very narrow exceptions, I'm not sure).

> Am I understanding correctly that the fact that nullification occurred would
> be grounds for an appeal in those jurisdictions?

I'm not a lawyer, but in general my understanding is that nullification _if
proven_ would be grounds for appeal in any situation where an appeal is
allowed pretty much everywhere, including in the US in civil cases.

This is also presumably the reason why we rarely hear about nullification
outside the context of US criminal trials, because if/when it occurs it would
need to be subtle and nobody on such a jury could really talk about it
afterwards.

The problem in bringing an appeal in such cases is that given that the jury
deliberations are private, substantiating appeals on such grounds can be
extremely hard.

E.g. in the Apple vs. Samsung case a lot of Samsungs allegation of jury
misconduct hinges on the fact that the foreman and at least one other juror
(were there more?) have kept giving interviews and saying more and more things
about the deliberations that are seemingly at odds with the instructions.

> My thought here is that in jurisdictions where jury nullification is
> normally possible and effective, it is only really effective if they give a
> not guilty verdict. A guilty verdict, given "just because" (or whatever),
> could be overturned in those jurisdictions, possibly even immediately by the
> judge.

You're right, it is vastly more powerful when the decision can't be appealed
because they have the freedom to totally ignore evidence and instructions.

It can still happen in other situations, but it needs to at least be nominally
possible to arrive at their decision while staying within the jury
instructions which of course often will remove the opportunity to nullify in
the type of clear-cut cases where nullification is most effectively used as a
protest against unjust laws.

------
theycallmemorty
Given the amount of money that goes into Juror Analysis in huge cases like
this, is it possible Samsung knew about this all along and was keeping as an
ace up their sleeve in case they lost?

~~~
thrill
I believe that is entirely possible, legal, and wise.

~~~
vidarh
It might be legal, but if found out it would almost certainly get their motion
denied, which is why Apple aggressively pursued a statement from Samsung about
whether or not they knew. As a result, Samsung has made a declaration they did
not know, and so at this point if it later turns out they did now, they're in
trouble.

------
DanBC
Another article with some details of his case with Seagate

([http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews...](http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=57594))

~~~
mih
Groklaw's take on this
<http://www.groklaw.net/article.php?story=20121002201632770>

~~~
Terretta
Groklaw coverage is a convenient place for the latest links, but their
commentary is beyond biased. They attempt to color what you're about to read.

Here's a particularly obvious example:

Commentary:

 _Hogan did not mention the case brought against him by Seagate in voir dire,
significantly enough, even though he was specifically asked by the judge, as
were all the prospective jurors, to list all cases any of them was ever
involved in as a witness or a party. Hogan told Reuters (see 2012 [PDF]) that
he wasn't asked about all cases. But he was, as you can see for yourself in
the transcript [PDF] of the voir dire._

No, Hogan was _not_ "specifically asked ... to list all cases" according
either Samsung's filing or the linked transcript.

At least Samsung's filing gets it right:

 _Asked by the Court whether “you or a family member or someone very close to
you [has] ever been involved in a lawsuit, either as a plaintiff, a defendant,
or as a witness?” he disclosed one such lawsuit but failed to disclose two
others..._

Sorry, Groklaw, Hogan was not "specifically" asked to "list all" cases. The
actual question, including sentences before and after for context (all caps in
transcript):

 _LET'S CONTINUE WITH THE QUESTIONS. THE NEXT QUESTION IS, HAVE YOU OR A
FAMILY MEMBER OR SOMEONE VERY CLOSE TO YOU EVER BEEN INVOLVED IN A LAWSUIT,
EITHER AS A PLAINTIFF, A DEFENDANT, OR AS A WITNESS? LET'S SEE. ON THE FIRST
ROW, WHO WOULD RAISE THEIR HAND TO THAT QUESTION? ALL RIGHT. LET'S GO TO MR.
HOGAN._

The question "specifically" asks about the singular, "a lawsuit". Note the
phrase "who would raise their hand to that?" It's a _binary_ question.

At the time of the question, it wasn't about patents, it was to determine if
jurors have encountered the court system as a participant, yes or no. The
followup questions did drill into the nature of the case Hogan mentioned, but
the judge didn't follow up further because that wasn't the purpose of the
original question.

Skipping down in the transcript a bit, the judge _tells us_ the purpose of the
"have you been involved in a lawsuit" question:

 _WE'LL TALK FURTHER ABOUT WHO'S BEEN ON JURY DUTY, BUT THERE ARE DEFINITELY
DIFFERENT, YOU KNOW, STANDARDS OF PROOF IN DIFFERENT CASES, AND I JUST WANTED
TO MAKE SURE -- YOU ALL HAD CIVIL CASES, SO I WOULD ASSUME THAT YOU ALSO HAD,
YOU KNOW, PREPONDERANCE OF THE EVIDENCE. DOES THAT SOUND FAMILIAR?_

This makes it clear the question wasn't how many cases the juror was involved
in, but whether the juror had been exposed to concepts around rule of law in
different types of cases. The judge continues:

 _AND WE'LL TALK ABOUT THIS A LITTLE BIT LATER ON, BUT IN DIFFERENT TYPES OF
CASES, THERE MAY BE DIFFERENT STANDARDS OF PROOF, AND ALSO THE LAW MAY HAVE
CHANGED SINCE WHENEVER YOU WERE A LITIGANT. SO I WANT TO MAKE SURE THAT BOTH
MR. HOGAN, AND MS. ROUGIERI, THAT YOU WOULD APPLY THE LAW AS I INSTRUCT YOU
AND NOT BASED ON YOUR UNDERSTANDING OF THE LAW BASED ON YOUR OWN CASES._

So no, Hogan was responsive and accurate and the question was not asking for
an itemized list of cases. It was to set up the point about standards of proof
and judicial instructions.

~~~
lusr
I find it amazing you would write a 557 word reply and not include the
following critical statement from the court that completely refutes your
entire point about the court's intention in asking that question, and fully
supports Samsung's argument:

 _THE COURT: ALL RIGHT. ANYTHING ABOUT THAT EXPERIENCE THAT WOULD AFFECT YOUR
ABILITY TO BE FAIR AND IMPARTIAL TO BOTH SIDES IN THIS CASE?_ [1, p149:14]

This was a DIRECT question to Hogan. He _and_ his wife both filed for
bankruptcy as a result of Seagate's 1993 _countersuit_ and nearly lost his
house [2]. It's hardly a stretch of the imagination to wonder if he bears a
grudge against Seagate and its currently majority shareholder, Samsung. If I
were the judge I'd be furious.

[1]
[http://newsandinsight.thomsonreuters.com/uploadedFiles/Reute...](http://newsandinsight.thomsonreuters.com/uploadedFiles/Reuters_Content/2012/09_-_September/samsung
--completejurorvoirdire.pdf)

[2]
[http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews...](http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=57594)

~~~
SystemOut
Samsung is not the majority shareholder of Seagate. Samsung owns almost 10% of
Seagate which makes them the single largest holder of stock but definitely not
the majority.

This transaction also took place in 2011 when Seagate bought Samsung's HD unit
and as part of the deal Samsung got a chunk of Seagate in return.

How would hurting Samsung hurt Seagate? It would only really matter if Seagate
had a large stake in Samsung, would it not?

~~~
kqr2
In order to pay the billion dollar fine, Samsung could be forced to liquidate
some of its assets, including its stake in Seagate. This in turn could cause
the price of Seagate to drop.

~~~
vidarh
The billion dollar fine is two weeks of Samsungs last quarter operating
profits. I very much doubt they're losing any sleep worrying about having to
liquidate any assets.

------
thechut
I wonder how many members of the jury, including Hogan, owned iPhones?

~~~
hayksaakian
If I remember correctly, he actually owned an android device Based on a bbc
interview shortly after the trial

------
DigitalSea
This changes everything. Even if it wasn't intentional, the very fact the
foreman didn't reveal he was sued by Seagate is a dramatic blow to this case
(not that it was much of a case to begin with). I'm neither a fan-boy of
either companies, but fair is fair and I believe the case has been heavily
one-sided from the start in favor of Apple so it's good to see the corrupt
wrongdoings in this case are coming to light.

If this case isn't thrown out, I will be very surprised and disappointed in
the US legal system. Can any law experts here weigh in on whether or not Apple
can sue Samsung again if the case gets thrown out? Considering it's so high
profile it would seem like that any jury would have the previous case on their
mind and perhaps make a biased decision.

------
JimmaDaRustla
"I laid it out for them."

~~~
Terretta
Anyone who thinks that isn't how most juries go probably hasn't done much jury
duty.

There's always someone who thinks they know what's going on, or who the others
think knows what's going on.

That's why they get elected foreman.

~~~
ryanmolden
As a counter point, on my grand jury only one or two people even wanted to be
foreman, and neither were viewed as "knowing what they were talking about",
since election happens on day one and no one really knows anyone else at that
point. Civil cases may be different but I don't get the general impression
lots of people are vying for the job. It may be a case of adverse selection:
anyone angling to be foreman probably shouldn't be made foreman :)

------
sabret00the
No shit Sherlock!

------
Freestyler_3
So the jury got some instructions on how it works and then they got a test
which they couldn't fail. They should have been examined on prior art cases.

OR of course no jury but judges instead.

