Friday News & Notes

Quiet week in the District. Everyone seems to be away before school starts in a few weeks...

I posted earlier in the week about the Apple/Samsung opening statements. Looks like there was a lot more drama in that case. ATL has all the scoop about the Judge and John Quinn getting into it here. The latest update has Apple asking for sanctions.  And people think criminal law is contentious. 

John Pacenti covers the old Dyer building in an interesting article:

Mobster Meyer Lansky faced trial in the ceremonial courtroom. Deposed Panamanian dictator Manuel Noriega was tried and convicted there on drug charges. Crooked judges and police also faced juries in the historic David W. Dyer Courthouse, a downtown Miami landmark distinguished by its coquina stone facade.
But the courthouse was shut down in 2008 after the lung disease death of a federal magistrate and employees complained they worked in an environment fouled by toxic mold.
Now, the General Services Administration, the building's landlord, is asking developers for ideas about what to do with the one-time post office building. In a request made public Thursday, the agency said the options include an exchange, an exchange for services, a lease or sale.
On Monday, the House Subcommittee on Economic Development, Public Buildings and Emergency Management will meet at the courthouse on a hearing titled "Sitting on Our Assets: The Vacant Federal Courthouse."

 That's about it for now. Enjoy the weekend.

Khannnnnnnnnnnn!!!!!!!!!!!!

That's what Judge Scola must be feeling about the "Pakistani Taliban case."  Curt Anderson covers the recent issues here:

A once high-profile federal prosecution of an elderly Muslim cleric and one of his sons on terrorism finance charges has become bogged down in questions over the imam's mental stability and a legal fight over the testimony of defense witnesses who refuse to leave Pakistan, according to court records and interviews.
U.S. District Judge Robert Scola said in a recent order there is "bona fide doubt" regarding 77-year-old Hafiz Khan's mental fitness to stand trial. Prosecutors say Khan, imam at a downtown Miami mosque, was the ringleader of a group in the U.S. and Pakistan that funneled tens of thousands of dollars to the Pakistani Taliban terror group.
Details about Khan's mental issues were not provided in court documents, but he has appeared frail in court appearances and also suffered several physical health problems while in custody. If he is ultimately ruled incompetent for trial, under federal law Khan would undergo at least four months of treatment before a determination could be made on whether his competency might ever be restored.
Assistant U.S. Attorney John Shipley said in a court document filed Wednesday the government does not oppose a psychological evaluation of Khan, but he added that any evidence of mental problems so far is "unsupported and bare-bones, providing no detail at all." The test for competency in federal court is whether a person can effectively consult with his or her lawyer and can understand the legal proceedings involved.
The mental instability issue cropped up after prosecutors abruptly announced in June the dismissal of all charges against Irfan Khan, the elder of Hafiz Khan's sons. The younger son, Izhar, who is also a South Florida imam, remains jailed along with his father on charges of providing material support to terrorists that carry potential maximum prison sentences of 15 years for each count. Both have pleaded not guilty.

Patent trial of the century...

...between Apple and Samsung.  Opening statements were yesterday.  Some highlights (via InformationWeek):

Apple asserted in its opening statement of its infringement case against Samsung that the Korean firm analyzed and systematically copied one feature after another of its iPhone and iPad devices, then brought look-alike products to market. Apple designer Christopher Stringer, the trial's first witness, was asked by lead Apple attorney what he thought as he witnessed competitors bringing phones similar to the iPhone's design to market. "We'd been ripped off. It was plain to see, particularly by Samsung. We were offended," he said.
It was the punchline that Apple had been building toward on a day of opening statements, following Monday's jury selection of seven men and three women in U.S. District Court in San Jose on the opening day of the trial. The courtroom with limited seating was packed with attorneys, journalists, and observers, as was an overflow courtroom where sound and video were piped in. 

Looks like Apple got the better of opening statements.  You never want to start with the "keep an open mind" mantra.  And you better have your exhibits ready in opening:

Samsung lead attorney Charles Verhoeven was soon able to issue a rejoinder to the charges in his own 90-minute opening statement. But before he could launch into it, he felt constrained to remind the jury that they needed "to keep an open mind," that there was "more to the story than what you've just heard." Unlike Verhoeven's presentations, which frequently stopped and started again as he searched for the proper exhibit, Apple's narrative flowed from start to finish with a rising indignation. It moved toward what seemed an inevitable conclusion. Verhoeven seemed to understand its potential impact on a lay jury.
Apple's lead attorney, Harold McElhinny, started out, for example, by showing a simple graphic of six Samsung phones in a wide variety of form factors prior to the launch of the iPhone at Macworld in January 2007. Next to it, he showed Samsung phones being produced by 2010. They all have the rectangular proportions and rounded corners of the iPhone form factor.
McElhinny produced what he called a Samsung design document that compared iPhones, feature by feature, with Samsung's Galaxy model and noted whenever the iPhone's features were different. And the apparent design response in each instance was to "make something like the iPhone."
"To be blunt, Samsung has not been honest about this copying," he said.
Toward the end of his 90 minutes, McElhinny poured special effort into depicting Samsung as, not only an unscrupulous competitor, but so unethical that it failed to live up to its obligation to disclose pending patents to other members of an international standards body, the European Telecommunications Standards Institute (ETSI), as it was required to do.

 McElhinny seemed to be talking the jury's language.  Not so much for the other guy:

Samsung's Verhoeven, when his turn came, disputed the last assertion first. Samsung has made important contributions to wireless standards and under ETSI rules, confidential, proprietary information did not have to be disclosed during its application for a Korean patent. "Any suggestion otherwise is without merit," he said.

That's how lawyers talk.  Not jurors.  I wonder what the jury will think of this:

Verhoeven didn't deny that Samsung studied and duplicated some features of the iPhone. "Being inspired by a good product is not copying. It's competition, people competing with each other. There's nothing wrong with that," he said.

 If I'm Samsung, I'm hammering this point:

Samsung is a key supplier to Apple. Twenty-six percent of the iPhone is built using Samsung components, a situation that is expected to continue, regardless of the outcome of the trial. Under an avalanche of charges that Samsung copies rather than innovates on its own, Verhoeven responded that Samsung employs 1,000 of its own designers. It designs both components and its own products. It must be able to innovate on its own, if Apple keeps buying its products for its devices, he asserted. 

The cross of the first witness didn't go much better with asking the one question too many:

Apple lavished similar care on the user interface. "We wanted to make a device that was breathtakingly simple, something very easy to understand, something that you just wanted to pick up and use."
"It felt like an entirely new thing," he concluded.
Under cross examination, Verhoeven asked him if he had seen the similar Samsung designs. Stringer answered that he might have. "Did you see a design with four soft buttons at the bottom," Verhoeven persisted. Stringer answered that he might have, he wasn't sure.
"Did you think it was beautiful?" asked Verhoeven.
"Well," said Stringer, "it didn't stick in my mind." 

No more appellate judges till election

That's according to the BLT.  Totally ridiculous. The 10th Circuit nominee was supported by both parties and yet the Senate won't confirm because of election year politics.  Absurd.

Rumpole is asking about the all-time great judges.  I'm biased -- hands down it's Judge Edward B. Davis.  Everything you could ever want from a judge.  Fair, treated lawyers and clients with respect, funny when appropriate...  didn't care about stats, or pushing cases, or reversals.  Just cared about doing the right thing in the right way.

On a different topic, here's an article about an army trial in which the jury acquitted the defendant on some serious charges and convicted on lessers.  According to the article, the military jury will conduct a sentencing hearing and then sentence the defendant.  I absolutely love this idea and think we should use it in federal court, at least as a recommendation.  The jury -- which has heard the actual evidence -- is much better able than the federal sentencing commission to give advice to the federal judge as to the appropriate sentence.  Agree?

Monday morning

1.  Justice Scalia is still making the circuit.  His Fox News appearance was entertaining.  Here's one exchange, as summarized by Ann Althouse:
Wallace quoted [Judge] Posner's saying that part of Scalia's dissenting opinion in the Arizona immigration case had "the air of a campaign speech." Scalia went comically snobby:

SCALIA: He is a court of the appeals judge, isn't he?

WALLACE: Yes.

SCALIA: He doesn't sit in judgment of my opinions as far as I'm concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That's what happens.

Wallace commented that Scalia knew how to "push people's buttons," and Scalia said "It's fun to push the buttons." Wallace pursued him — "Is it?... Why" — and Scalia basically says Posner started it: "When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative."

2.  SCOTUSblog covers the dog-sniffing cases coming up:

Police forces across the country have found that dogs, which have a highly developed sense of smell, can be trained to detect specific odors, such as scents from a human body, or the odors given off by illegal drugs. This makes police dogs highly valued partners to police as they search for missing persons, or for illegal narcotics. When a trained dog’s capacity to detect a certain odor has been formally certified by an expert, the evidence that police gain from dog searches frequently is permitted in criminal cases in court. But the Supreme Court several times has had to rule on whether a search by a trained police dog is the kind of inspection that must be done so that it does not violate the constitutional right to privacy of the individual targeted. The Court will give further constitutional guidance in two new cases, both originating in Florida.

3.  BLT is discussing the Senate showdown over judicial nominees:

A showdown on the confirmation vote of a federal appellate judicial nominee, scheduled for Monday, could be a pivotal moment for how many appeals court bench spots the Senate will fill during the rest of this year.
Majority Leader Sen. Harry Reid (D-Nev.) is forcing a vote Monday afternoon on Robert Bacharach, of Oklahoma, for the U.S. Court of Appeals for the Tenth Circuit, a nominee considered to be highly qualified and noncontroversial. The move is a direct challenge to Republicans who have leaked plans that they will block all circuit court judges for the rest of the presidential election year.
But it is also Reid's only option for moving forward on the circuit court nominees this congressional session, as Republicans cite a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president's term, dubbed "The Thurmond Rule."

If Reid succeeds in getting enough Republicans votes to overcome the filibuster, it could pave the way for other noncontroversial circuit court nominees awaiting confirmation this year, including William Kayatta, Jr., of Maine for the U.S. Court of Appeals for the First Circuit, and Richard Taranto, nominated to the Federal Circuit.
If Reid does not succeed, it would suggest Minority Leader Mitch McConnell (R-Ky.) has party members in line to solidify a freeze on any circuit court confirmations until next Congress, nomination watchers say.

 

4.  Rumpole is all over the registry controversy in state court.  I don't like the posting of attorneys' names and numbers though.
5.  Roy Black has been a busy blogger lately.  Good stuff, especially his stuff on cross-x.