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."
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.
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.
> Any American jury is going to be biased against a foreign company
I disagree with that statement. If you read the groklaw piece linked below, the jury was actually siding with Samsung before Hogan started practicing law.
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.
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.
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).
I agree with you about linking Apple and Chinese. When I think of the Apple labor force I automatically think Foxconn, which leads to thoughts of labour camps and worker suicide, not that that's the whole picture of course.
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.
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].
It seemed to me like this is what the jury foreman did - he applied the law rather literally. When he said the fact that the Apple methods couldn't be invalidated by prior art because the old methods were incompatible with newer processors, as ludicrous as that sounds as an argument, it seemed to be a faithful interpretation of what they were told about the relevant laws.
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.
I'm pretty sure your understanding is correct. A jury finding of "not guilty" in a criminal case cannot be overturned by a judge, but that's not true of any other finding a jury might make.
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.
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.
(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.
How? A jury that exercise jury nullification _are_ explicitly ignoring the law and the judges instructions. That is the very foundation of the concept.
Nullification is possible only because a jury does not have to logically justify their decisions, and in some jurisdictions (such as the US) can not be overturned at all in the case of not guilty decisions in a criminal trial.
That does not change whether or not jury misconduct may have occurred. It only means that the court and the prosecution is left with limited power to prevent it and, such as in the US, with no recourse if it happens in a criminal trial.
My thoughts were that if Samsung can successfully argue jury misconduct based on the deliberations inside the jury room, then any future verdict based on the doctrine of jury nullification can be similarly argued as 'misconduct' by the losing party.
In the case of a US criminal trial, where nullification usually happens, it is irrelevant as the prosecution can not appeal an acquittal.
But even in the case of a civil trial such as this, the only reason Samsung can argue jury misconduct is because members of the jury themselves have provided evidence by talking to the press. Even then, the barrier to getting a retrial are high.
Nullification as a concept is not protected other than as a byproduct of other concepts, such as the privacy of the jury deliberations, and the strength it gets from the protection against appeals of acquittals in criminal trials.
As such, Samsungs argument has absolutely zero bearing on the concept of jury nullifications - their arguments are based on the letter of the law and mountains of precedents setting the boundaries of exactly the extents to which the jury's decision can be question or set aside.
It's not hard to prove the jury tampered with itself if you have multiple accounts of jurors saying that the foreman tampered with the jury. I can't imagine any judge not being furious at the conduct of the foreman in this case.
On the contrary, it is quite difficult, the jury is expected to deliberate. If you look at how Samsung's lawyers have made their argument, they focus on how things "outside" the trial made it into the the jury deliberation room. This is a common theme in successful tampering arguments, that it is an external influence that is extra-judicial which has tainted the jury deliberation.
So the argument Samsung makes is that the Jury foreman manipulated the process with intent and premeditation and that tainted the process. They are trying to show that by showing that the foreman had a grudge (motive), and made an opportunity (perjured themselves during the voir dire) so he brought this extra-judicial plan into the courtroom and sprang it on an unsuspecting defendant (Samsung). Just being incompetent in following the judges instructions does not rise to the level of tampering or jury misconduct.
I find it amazing this guy (the foreman) talks to the press, clearly he loves the limelight, but man he isn't doing himself any favors.
He claims that he was only asked about lawsuits from the previous 10 years but the Seagate lawsuit occurred in 1993 so he didn't feel obligated to mention it.
The interesting thing, which to me at least speaks to intent, is that there would be an understandable reason for him to omit it:
The judge didn't follow through. She asked him about the first case he mentioned, and then moved on without asking if there were any more.
If this was a totally innocent slip, the most believable excuse to me would be that he wrongly assumed that since the judge moved on, she had satisfied herself of what mattered with respect to his experience with trials and did not see a need to concern herself with any other ones, and that he did not know of Samsungs ownership interest in Seagate, and so did not see a specific reason to mention that case and he also found it embarrassing.
Instead he's inventing an excuse that is directly contradicted by the transcript, that is just serving to make the whole thing look more dubious.
At the same time, though, it seems quite inept of the judge to not dot the i's by being precise enough to ask even "any more?" or similar before moving on. Surely a trial judge ought to know that people make stupid assumptions about what a question means all the time.
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?
3. In response to Samsung’s motion detailing Velvin Hogan’s failure
to reveal his litigation with Seagate during voir dire and its impact on the
integrity of the trial and the verdict, Apple demanded that Samsung
disclose the timing of its knowledge regarding those facts. A true and
correct copy of Apple’s email, along with further correspondence
between counsel for the parties that resulted in Apple’s agreement that any
such disclosures would not constitute a waiver of any privilege, is
attached hereto as Exhibit A. By way of separate declaration,
Samsung is confirming to Apple that it did not know of Mr. Hogan’s undisclosed
litigation against Seagate until after the verdict. To date, Apple has not
revealed whether it was aware of Mr. Hogan’s litigation against Seagate
prior to the verdict or prior to Samsung’s Motion.
According to Groklaw, Apple asked via email and Samsung has denied this in a filing.
"By way of separate declaration, Samsung is confirming to Apple that it did not know of Mr. Hogan’s undisclosed litigation against Seagate until after the verdict." --Samsung, #2012
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.
Can anyone point to the actual transcript where Hogan is asked if he has been part of another lawsuit. I want to really see if the 10 year clause is in there or not.
I frankly just don't trust Groklaw to accurately report this story.
Have you ever clicked a Wikipedia citation? Half they time they don't support, or even contradict, the article's claims. Groklaw isn't Wikipedia, but they idea that an article with citations is infallible is ludicrous. People misrepresent, either intentionally or accidentally, what they've read all the time.
I don't think they are claiming that at all. They are questioning Groklaw's unabashed partisanship. The thing that I find utterly absurd about these discussion is the partisanship that goes on. The Google and Android faithful are particularly bad in this area. They will call articles that disagree with their world view biased, yet an article that does is undeniable and unquestionable.
There he says the court specified a 10-year limit to the lawsuit question.
So the real question is: is the juror confused about what he was asked, or is Samsung trying to get the verdict thrown own by including a half-truth in their filing.
If Mr. Hogan introduced the 10 year limit himself, and if bankruptcy remained on his credit history for 10 years, that could serve as the starting point for an argument that he was thinking specifically about his own bankruptcy-inducing lawsuit during his deliberations.
One of the other jurors mentioned a case from more than 10 years ago. So we know that at least one of his fellow jurors did not believe that the inquiry was listed to the past 10 years.
We also know, per his own admission, that he had not forgotten about the case, but instead that he deliberately withheld that information, allegedly because he believed it irrelevant due to it having been so long ago.
Therefore, he has cleverly established that he intentionally disregarded the court's actual orders in favor of whatever he imagined the court's orders to be.
I read over the question in the transcript and there was no 10-year clause, but there was also no indication that he should disclose all previous cases. To me it read as the judge verifying with those people who had been in court before that they understood that the trial was not to be influenced by their own understanding of the law as it applied to previous cases. If he wanted a complete history of all the cases, he should have asked more directly. That said, Groklaw's transcript is missing 3 pages of the discussion, so I stopped reading shortly after the judge started talking to Hogan. Maybe he asked the question more specifically in those missing pages.
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.
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.
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?
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.
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.
Is it not possible that he didn't know that Seagate was owned by Samsung (I didn't)? Or at least not blame them for the actions of Seagate nearly 20 years ago.
It would have been a lot easier to believe that if he hadn't now a couple of times insisted the question was limited to ten years, in direct contradiction of the transcript, and have lashed out at Samsung and insinuated they intentionally got him on the jury to use this to get a retrial.
His reaction makes me question his credibility. But of course it is possible that he genuinely didn't know.
> 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,
It's not possible for this statement to refute my point about the court's intention in asking the original question. Your quote comes after the show of hands question, and before the judge's own explanation of why the show of hands question was asked. Your quote is not part of the judge's explanation. We have to take the judge at her words.
What's more, to have anything to do with the Seagate issue, this question would have had to be have been phrased:
THE COURT: ALL RIGHT. ANYTHING ABOUT THAT EXPERIENCE, __OR ANY OTHER ENCOUNTER WITH THE COURT SYSTEM__, THAT WOULD AFFECT YOUR ABILITY TO BE FAIR AND IMPARTIAL TO BOTH SIDES IN THIS CASE?
That wasn't the phrasing, and the judge immediately followed the narrow question with returning to an explanation of the original "would anyone raise their hand" binary question: just want to make sure you jurors know this case may have different process and rules. The context shows what was on the judge's mind at the start and the end.
> 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]
If it were such a linchpin, Samsung would have included it in the filing. It's not.
Even if the judge had been asking about the Seagate case, which the judge was not, Hogan could -- in his mind -- truthfully answer "No" to this question. It's not easily falsifiable. For all we know, a juror may not be the sort to hold grudges, or may have an infinite "ability to be fair and impartial to both sides" even if one side stole his pancakes and the other side saved his life. This is why the law has restrictions on someone testifying as to a defendant's state of mind.
"that experience" is referring to Mr. Hogan's experience being sued by someone who worked for him. So he's being asked whether experience with a particular lawsuit would affect his ability to be fair and impartial, not whether he's capable of being fair and impartial.
Ali haven't bothered to read the transcript, but I cannot imagine that "THAT EXPERIENCE" can in any way refer to a case that wasn't mentioned in the trial.
"That experience" properly refers to his "ever [having] participated in a lawsuit" in which he failed to disclose the whole truth, as he promised to. It's pretty strange to leave out the case that cost you your house. His failure to disclose a relevant case when questioned by the judge is inexplicable.
He also claimed during voire dire that he would set aside his understanding of the law from any past cases. Then he gave media interviews in which he talked about using his past, incorrect knowledge, told interviewers about doing things that were contrary to the court's instructions, and explained how he turned around the jury's verdict.
Oh, and he also claimed that the court only asked him about 10 years back to one interviewer: a claim that has proven to be inaccurate both due to that not having been said and due to another juror remembering a case older than that.
> EDIT: Personally I'm amazed they find so many patent holders and so few active Facebook users among the potential jurors.
I find that it helps explain the verdict, personally.
EDIT: Hey Cloven? You commented right below me, but all of your comments started going dead a couple months ago. I'm not sure why. They don't appear offensive.
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.
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 :)
"Foreman" has nothing to do with being an thought leader, they're just the person selected to interact directly with the judge. In the jury I was on, he also moderated the discussion when it got too heated. But he deliberately avoided giving his opinion until after everyone else had spoken and tried not to have any more influence than any other juror.
(That didn't keep the jury from making a decision I disagree with, but I certainly don't blame the foreman.)
In the criminal trial I served on (rape, kidnapping, theft, assault with a deadly weapon), I was not elected to be jury foreman, but asked to by the judge. The duties were pretty minimally specified, but mostly to be the point of contact with the judge. During deliberations I would attempt to keep our one pontificator from droning on by asking him a question about something he'd just said and then asking others the same question so as to keep all involved, and also ll feeling as if they'd been involved, without pissing anyone off - unhappy people often make rash decisions.
That just underscores how important the process of jury selection is, and how potent it will be if Samsung can show that they did not get a fair chance to evaluate the jury through actions of others in the trial (they don't have to blame the foreman; they could blame the judge for not questioning him well enough).
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.
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."