Samsung raises jury misconduct in bid for new Apple trial

Samsung is alleging juror misconduct in new court filings asking a federal judge to throw out Apple's billion-dollar jury verdict and allow a new trial.

In a flurry of court documents, Samsung's attorneys list a series of cases, including ones that federal courts in California must follow, in which juror misconduct prompted a new trial. Their apparent argument: interviews that jurors in the landmark case gave to news organizations provide evidence of misconduct serious enough to have influenced the verdict.

One document reviewed by CNET shows Samsung predicting its arguments will likely "subject all of the jurors to extra-judicial scrutiny and public criticism which they may find unwelcome and intrusive" and that both sides be "ordered to have no further contact with any of the jurors" for now. In addition, Samsung warns, "future proceedings on this matter may be compromised by further inquiries from the parties, the media and others, and attendant publicity."

A federal jury in San Jose last month overwhelmingly sided with Apple, rejecting all of Samsung's claims, and finding that the South Korea-based smartphone maker was liable for about $1.05 billion in damages arising from software patents on mobile devices. The initial verdict appeared to have been prepared hastily: the jury decided that Samsung was liable for damages even for patents that were not infringed, then amended its verdict about an hour later at the judge's request.

"I think it's going to be a little tough" to overturn the verdict because of allegations of jury misconduct, says Brian Love, a law professor at Santa Clara University who's followed the trial closely. "You're looking for material or something else coming in that wasn't introduced at trial, a juror reading reports about the case and they're being influenced by outside forces."

While two key pages from a brief filed Friday were redacted, a separate index (PDF) listing relevant cases from those pages was not. It reveals that Samsung is citing two 9th U.S. Circuit of Appeals cases involving juror misconduct, including one in which a jury was found to have improperly relied on information not presented during the trial.

Another newly-filed Samsung document -- this one was highlighted by the venerable anti-software patent site Groklaw.net -- includes a transcript (PDF) from when the judge asked juror Velvin Hogan, a video recording patent holder, if he will apply the law as instructed "and not based on your understanding of the law based on your own cases." Hogan -- who became the jury's foreman -- replied that he could.

In an interview with CNET a day after a verdict, juror Manuel Ilagan said that Hogan used his understanding of the process from his own experience with patents to sway the jury. "Hogan was jury foreman," Ilagan said. "He had experience. He owned patents himself...so he took us through his experience. After that it was easier."

And, in a video interview with Bloomberg TV, Hogan said: "Some were not sure of how prior art could either render a patent acceptable or whether it could invalidate it. What we did is we started talking about one... (I) laid it out for them."

The jury instructions (PDF) from U.S. District Judge Lucy Koh told jurors that they must "decide the case solely on the evidence before you."

A Samsung spokesperson today declined to comment on the company's legal strategy or the contents of the partially-redacted documents, only noting that Friday's filing was the company's first trial-related item since the verdict.

"The press having the right to talk to jurors is a First Amendment freedom of speech issue and they should certainly be allowed -- they can't compel the press to do anything," said Raj Abhyanker, a partner at LegalForce, a Silicon Valley law firm that specializes in intellectual property.

"Could have affected the verdict"
In general, U.S. law discourages post-verdict probes into jury deliberations. There's even a formal rule in federal court, Rule 606(b), saying that "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." One exception to that rule, however, is if "extraneous prejudicial information was improperly brought to the jury's attention."

Courts have overturned verdicts because a juror misstated the law. In a 1986 civil case, a retired policeman on the jury erroneously described what he believed the law to be. A California appeals court tossed out the jury verdict, saying it was not a fair trial and amounted to juror misconduct, and sent the case back to a lower court.

One of the cases that Samsung cites, Gibson v. Cannon, is a Ninth Circuit criminal case also dealing with juror misconduct. In it, a juror injected into deliberations outside information -- not presented in court -- about the effects of morphine.

The jury delivered a guilty verdict, and the judge refused to grant a new trial, saying he thought the misconduct was "harmless." But the 9th Circuit overruled him, saying what matters is if there was a "reasonable possibility" that the outside material "could have affected the verdict."

Love, the Santa Clara law professor, said that's what Samsung might be trying to do with Hogan, the loquacious jury foreman: "Imagine if I was on the jury and the trial is over and we're deliberating and I said 'I'm a lawyer -- I know all about the law and this is what we should do. I disagree with the judge cause I'm bringing my outside knowledge of the law.' They might be saying that Hogan is bringing his outside knowledge of the patent system and essentially trying to become a legal expert inside the jury room."

Jurors had the option to speak with media directly after the verdict was delivered late last month, though they chose instead to sneak out of a back exit of the Robert F. Peckham Federal Courthouse in San Jose, Calif. Nonetheless, some of its nine members spoke with the media by phone, and videotaped interviews, even doing live question and answer sessions with readers.

Illagan, who was the first juror to speak after the trial, told CNET that the group had several "heated" debates before reaching a conclusion, but that the group was largely in agreement after a day or so of deliberations. Hogan was seemingly far more willing to speak about the trial in public, appearing for a live video interview with Bloomberg, as well as doing a live question and answer sessions with Gizmodo readers.

During the trial, the only time the reliability of the selected jurors was ever brought into question was on the very first day. A male juror told Judge Koh that he had seen an article about the case in the media, but it was just a headline.

Koh told the jury that they should do their absolute best to stay away from any articles surrounding the trial, and that the court would be compiling a collection of the stories about the case to give them when it was all over.

Time crunch
Besides the jury factor, one of Samsung's chief complaints in its filing is that the two companies simply did not have time to make their cases. Both companies were given 25 hours of court time for testimony and cross examination. Samsung burned through much of its time cross-examining Apple's witnesses, effectively making it rush through its side.

"The court's constraints on trial time, witnesses and exhibits were unprecedented for a patent case of this complexity and magnitude, and prevented Samsung from presenting a full and fair case in response to Apple's many claims," Samsung's new trial request reads.

Judge Koh may disagree with that point. Near the end of the proceedings, the judge chided Samsung for its strategy and warned not to file anything about not having enough time.

"Samsung made a strategic decision to use more time to cross examine," Koh told the two companies last month. "I am not going to allow the parties to file something that says you were unable to file, because you made a strategic decision."

CNET's Greg Sandoval contributed to this report

Last updated at 4:45 p.m. PT