What Does It Mean to Have a Fair Trial?

In my career as a jury consultant, I have been confronted repeatedly with the concept of what it means to have a fair trial. The criminal child-molestation trial of Jerry Sandusky was quite a headline-maker for 2012 and I received calls from several newspapers and news stations alike to provide commentary from a jury perspective. Each reporter was concerned with the jurors' connections to Penn State University, for whom Sandusky was the former assistant football coach. Each reporter asked about the implications of jurors' Penn State connections and, considering those connections, whether it was possible Sandusky could have a fair trial. It all got me thinking about what it means to have a 'fair' trial as a general concept.

Trial Date Set in Traffic Court Ticket-Fixing Prosecution

The federal judge presiding over the criminal cases of the Philadelphia Traffic Court judges charged with fixing tickets has scheduled their trial for November 12.

Sandusky Loses Bid to Delay Trial

The Pennsylvania Superior Court has denied an 11th-hour attempt from Jerry Sandusky?s defense to delay the trial of the former Penn State assistant coach, which is slated to begin next week.

DealBook: Jury Begins Deliberations in Tourre Trial

Protesters clamor in Harrisburg on eve of trial for Pa. voter ID law

HARRISBURG - Calling the state's yet-to-be implemented voter ID law a thinly veiled attempt at voter suppression, more than 100 people rallied in the state Capitol Thursday, just days before a trial on the controversial law is set to begin.

Judge Rules Against Apple in E-Books Trial

“Without Apple’s orchestration of this conspiracy, it would not have succeeded as it did in the spring of 2010,” the judge, Denise L. Cote of United States District Court in Manhattan, said in her ruling. She said a trial for damages would follow.

Government lawyers argued in court last month that Apple had colluded with five big American publishers to raise prices for electronic books across the publishing market.

The Justice Department brought the antitrust case against Apple and the publishers a year ago. The publishers settled their cases, but Apple executives insisted that the company had done nothing wrong, and the company continued to insist that on Wednesday.

“Apple did not conspire to fix e-book pricing and we will continue to fight against these false accusations,” Tom Neumayr, an Apple spokesman, said. “When we introduced the iBookstore in 2010, we gave customers more choice, injecting much needed innovation and competition into the market, breaking Amazon’s monopolistic grip on the publishing industry. We’ve done nothing wrong and we will appeal the judge’s decision.”

The Justice Department said the judge’s decision was a victory for people who buy e-books.

“Companies cannot ignore the antitrust laws when they believe it is in their economic self-interest to do so,” the Justice Department said in a statement. “This decision by the court is a critical step in undoing the harm caused by Apple’s illegal actions.”

It appears unlikely that the ruling will have an immediate effect on the book-buying public. The publishers who have already settled with the government are operating under the settlement’s terms, which prohibit publishers from restricting a retailer’s ability to discount books.

Since those settlements have gone into effect, prices on many newly released and best-selling e-books have gone down. One New York Times best-seller, “And the Mountains Echoed,” by Khaled Hosseini, is sold on Amazon.com for $10.99. But other e-books seem to have held closer to pre-settlement prices: “The Ocean at the End of the Lane,” by Neil Gaiman, is listed for $12.80 on Amazon.

The antitrust battle underscores the turmoil in the book industry as readers shift from ink and paper to electronic devices like tablets and smartphones, where they can buy content with the push of a button. While the publishers want to embrace new media, they are also trying to protect their profits and retain control of their businesses. Apple’s lawyers noted at the trial that the publishers had long complained that Amazon.com’s uniform pricing of $9.99 for new e-book titles was too low.

A recent survey of the publishing industry revealed that in the United States, e-books account for 20 percent of publishers’ revenue, more than $3 billion, up from 15 percent the year before. E-books have had a slower rate of adoption in Europe and the rest of the world, but analysts expect that major growth will develop in the next several years. A report by Forrester predicted that by 2017, Europe will be the largest e-book market in the world, generating revenue of $19 billion.

In his testimony, Eddy Cue, Apple’s senior vice president of Internet software and services, who was in charge of negotiating deals with the publishers, conceded that Apple opened the door for book publishers to raise prices in its own e-book store. But he said that the company was not intending to push Amazon, the dominant player in the e-book market, to raise its prices, too.

“Amazon could have negotiated a better deal,” Mr. Cue said in his testimony. “They had a lot more power.”

But the Justice Department said Apple’s deal with the publishers left Amazon with no choice but to raise prices. When Apple entered the e-book market in 2010, it changed the way publishers sold books by introducing a model called agency pricing, where the publisher — not the retailer — sets the price, and Apple took a cut of each sale. As a result, the publishers were able to set e-book prices higher. Apple proposed price caps of $12.99 and $14.99.

What Does It Mean to Have a Fair Trial?

In my career as a jury consultant, I have been confronted repeatedly with the concept of what it means to have a fair trial. The criminal child-molestation trial of Jerry Sandusky was quite a headline-maker for 2012 and I received calls from several newspapers and news stations alike to provide commentary from a jury perspective. Each reporter was concerned with the jurors' connections to Penn State University, for whom Sandusky was the former assistant football coach. Each reporter asked about the implications of jurors' Penn State connections and, considering those connections, whether it was possible Sandusky could have a fair trial. It all got me thinking about what it means to have a "fair" trial as a general concept.

Trial Date Set in Traffic Court Ticket-Fixing Prosecution

The federal judge presiding over the criminal cases of the Philadelphia Traffic Court judges charged with fixing tickets has scheduled their trial for November 12.

Trial Set for Indicted Traffic Court Judge

Philadelphia Traffic Court Judge Robert Mulgrew, who has been suspended from his judicial duties until his federal criminal case is resolved, is set to go to trial with two co-defendants June 5, 2013, U.S. District Judge C. Darnell Jones II of the Eastern District of Pennsylvania said during a court hearing today.

Bellwether Porn Trial Ends; Producer Wins Damages

In the first BitTorrent copyright infringement case over pornographic videos to go to trial in the country, a federal judge has ruled in favor of the producers, finding damages of $112,500 related to one defendant.

Sharp Exchange Between Lawyers Marks Day Seven of Priest Abuse Trial Deliberations

At the end of the seventh day of jury deliberations in the Philadelphia priest sex-abuse trial, the jury asked for an alleged sex-abuse victim?s two-day testimony to be read back to them, as well as the alleged victim?s mother?s testimony and the interview done by a church investigator with the priest who allegedly abused M.B.

Choosing Corporate Representatives for Trial - More Than Appearances Alone

When it comes to a jury trial, no detail gets overlooked by those sitting on the panel. Generally speaking, jurors do a decent job of paying attention to the evidence and testimony offered, but much more goes into their ultimate decision than those factors alone. In an effort to have control and ownership over their verdict, jurors routinely attempt to make sense of the case by relying on their own abilities to sniff out the truth. They zero in on your behavior as counsel, how the judge reacts to the case being made and how their fellow jurors seem to be managing. Your corporate representative will be held to the same scrutiny, so your choice for the face of the company rightly becomes a key consideration for trial.

E-Book Antitrust Trial of Apple to Begin

But the evidence in the case will not just determine whether Apple has violated antitrust laws. It will also tell a broader story of how the introduction of e-books created upheaval in the publishing industry — with guest appearances by major players like Amazon and Barnes & Noble and e-mails from the late Steven P. Jobs, Apple’s former chief executive.

In the case, brought a year ago, the Justice Department accused Apple and five book publishers of conspiring to raise e-book prices. The idea, the government said, was to allow publishers to set their own prices rather than letting retailers do so.

Their motivation, according to the Justice Department, was to defend themselves against Amazon, which was setting the price of most new e-books at $9.99 and becoming increasingly dominant in the market. Simon & Schuster, HarperCollins and the Hachette Book Group settled the day that charges were filed; Penguin and Macmillan settled months later.

Complaints by Amazon, which now controls at least 60 percent of the e-book market, are widely believed to have incited the investigation. Amazon declined to comment.

After the lawsuit was filed, the expectation was that e-book prices would drop sharply; the publishers that settled agreed to allow retailers to discount their e-books for two years. But the price drop has still not happened.

A government victory against Apple, which would not involve monetary damages, might also not affect e-book prices.

“Are consumers going to be better off as a result of any government win here?” said Charles E. Elder, an antitrust lawyer at Irell & Manella, which is not involved in the case. “That’s going to have to be seen depending on what happens to book publishing generally. It’s in trouble, and e-books are either the savior or they’re going to hasten the demise of book publishers.”

Apple declined to comment, but has said it has done nothing wrong.

“The e-book case to me is bizarre,” Timothy D. Cook, Apple’s chief executive, said during an onstage interview at a business conference last week in Southern California. “We’ve done nothing wrong there, and so we’re taking a very principled position of this. We were asked to sign something that says we did do something, and we’re not going to sign something that says we did something we didn’t do. And so we’re going to fight.”

Apple certainly has the money to fight, and a brand to protect, at a time when its stock is sagging and its tax practices and manufacturing processes are under scrutiny. Yet it is bigger than ever — with hundreds of millions of its iPhones and iPads in the hands of customers all over the globe.

The trial, before Judge Denise L. Cote of United States District Court, is expected to feature testimony from chief executives from the five publishers, who will offer a window into their world of fierce price negotiations. But the star witness may well be Mr. Jobs, even though he died in October 2011.

In the case, the government cast Apple as the “ringmaster” of the conspiracy. It said that when the company entered the e-book industry in 2010 with the introduction of the iPad, it wanted to pressure Amazon to raise its prices above its uniform $9.99 for new e-books.

At the time, publishers’ agreements to sell e-books were made under the so-called wholesale model of print books; publishers charged retailers about half the cover price for a book, and the retailers then set their own prices. The government said Mr. Jobs had persuaded publishers to agree to agency pricing, which allowed publishers to set their own prices for e-books, giving Apple a 30 percent commission for books sold in its online store.

The publishers’ contracts with Apple included a “most favored nation” clause, requiring that no other retailer sell e-books for a lower price; if they did, the publisher would have to match the price of the e-book in Apple’s store. That, the Justice Department said, resulted in higher prices that harmed consumers.

DealBook: Fallen Goldman Director Appeals for a New Trial

Spencer Platt/Getty ImagesRajat Gupta, center, left court in October after being sentenced to two years in prison. He was convicted of leaking confidential information to Raj Rajaratnam, a hedge fund manager.

8:28 p.m. | Updated

It was perhaps the most critical piece of evidence in the trial of Rajat K. Gupta, a former Goldman Sachs director found guilty last year of leaking the bank’s boardroom discussions to his hedge fund friend.

“I heard yesterday from somebody who’s on the board of Goldman Sachs that they are going to lose $2 per share,” his friend, the money manager Raj Rajaratnam, told a colleague during an October 2008 conversation that federal investigators secretly recorded.

On Tuesday, a lawyer for Mr. Gupta argued that a federal appeals court should overturn his client’s conviction and grant a new trial because the verdict was tainted by the erroneous admission of that statement and other wiretapped conversations.

“The wiretaps should never have been admitted,” said Mr. Gupta’s lawyer, Seth P. Waxman, during the argument at the United States Court of Appeals for the Second Circuit in Manhattan.

Last June, a jury convicted Mr. Gupta, 64, of sharing Goldman’s confidential information with Mr. Rajaratnam. The presiding trial court judge, Jed S. Rakoff, sentenced Mr. Gupta to two years in prison. A year earlier, Mr. Rajaratnam was found guilty at trial and given an 11-year sentence. His appeal is also pending.

The men, who came to this country from South Asia as university students and rose to the highest ranks of business, are two of the most prominent figures caught up in the government’s crackdown on illegal conduct on Wall Street trading floors. Since 2009, the United States attorney in Manhattan has charged 81 individuals; of those, 73 have either pleaded guilty or been convicted.

With his freedom hanging in the balance, Mr. Gupta attended Tuesday’s hearing, accompanied by his wife, his four daughters and about a dozen friends. He was once one of the world’s most admired executives, having served for a decade as the global chairman of the management consultancy McKinsey & Company. Mr. Gupta, who lives in Westport, Conn., is free on bail pending the outcome of his appeal.

The hearing, in a cramped courtroom in the stately old federal courthouse building on Foley Square, was packed with spectators. About two dozen summer law school interns from Mr. Waxman’s firm, WilmerHale, came to watch, as did a class of curious high school students from the Beacon School on the Upper West Side. The youth-filled courtroom pushed several members of Mr. Gupta’s large legal team and a group of senior government prosecutors into a crowded anteroom, where they watched a televised simulcast of the proceeding.

Mr. Waxman tried to convince the three-judge panel — Jon O. Newman, Amalya L. Kearse and Rosemary S. Pooler — that the lower court had made a series of incorrect rulings at trial. Much of the discussion centered on a ruling by Judge Rakoff that curtailed the testimony of Mr. Gupta’s daughter Geetanjali Gupta. She had planned to testify that at the time of the tips cited by prosecutors, her father told her that he believed Mr. Rajaratnam had stolen money from him.

Judge Rakoff curbed her testimony, allowing her to say only that her father was upset with Mr. Rajaratnam. If the jury had heard that Mr. Rajaratnam might have cheated Mr. Gupta, “that testimony would have powerfully refuted the government’s theory of motive,” Mr. Waxman argued.

Judge Newman appeared skeptical that the daughter’s testimony would have swayed the jury given the substantial circumstantial evidence of Mr. Gupta’s guilt.

“You’re telling me that if the jury had heard that statement it would have disregarded all the other evidence in the case?” Judge Newman asked. “How realistic is that?”

Later in the argument, Judge Newman recounted damning evidence from the trial — phone logs and trading records indicating that less than one minute after hanging up from a Goldman board call, Mr. Gupta phoned Mr. Rajaratnam, who quickly bought about $35 million worth of Goldman stock.

“Are you telling us that that’s a coincidence?” Judge Newman asked.

Mr. Waxman tried to avoid answering the question, but Judge Newman persisted. “O.K., I embrace it — it’s a coincidence,” said Mr. Waxman, a former solicitor general of the United States who is considered one of the country’s top appellate lawyers.

Richard C. Tarlowe, the federal prosecutor who argued the appeal for the government, seized upon Judge Newman’s incredulity when he rose to speak. “The argument” — that the phone calls and trades were coincidental — “was made to the jury, and it was rejected because of its absurdity,” he said.

For Mr. Gupta to have his conviction reversed, the appeals court does not have to believe in his innocence. Rather, he can win a new trial if the judges decide that Judge Rakoff improperly admitted the wiretapped conversations between Mr. Rajaratnam and his colleagues suggesting that he had an inside source at Goldman, or made other faulty rulings.

“The court’s decidedly asymmetrical interpretation of the rules of evidence left the jury with a distorted picture, in which Gupta was accused by the self-serving hearsay of a known fabulist,” Mr. Gupta’s legal team wrote in court papers.

During the argument, Mr. Waxman characterized Mr. Rajaratnam’s statements as unreliable, and described him as a braggart who “lied about his sources to impress his subordinates.”

A ruling by the appeals court is expected in the coming months. One party closely watching for a decision is Goldman Sachs, which had a lawyer attend Tuesday’s hearing. In February, a judge ordered Mr. Gupta to pay Goldman more than $6.2 million to reimburse the bank for legal expenses related to an internal investigation and other costs. But because the bank’s bylaws require it to cover legal fees for top officers and directors, Goldman is paying for Mr. Gupta’s costly defense, which has reached at least $35 million.

Mr. Gupta agreed to reimburse the bank for his legal bills if a jury convicted him, but Goldman must continue to pay them until the final outcome of his appeal.

This post has been revised to reflect the following correction:

Correction: May 22, 2013

An earlier version of this article misstated the timing of Rajat Gupta's conviction. It was in June 2012, not May 2012.

What Does It Mean to Have a Fair Trial?

In my career as a jury consultant, I have been confronted repeatedly with the concept of what it means to have a fair trial. The criminal child-molestation trial of Jerry Sandusky was quite a headline-maker for 2012 and I received calls from several newspapers and news stations alike to provide commentary from a jury perspective. Each reporter was concerned with the jurors' connections to Penn State University, for whom Sandusky was the former assistant football coach. Each reporter asked about the implications of jurors' Penn State connections and, considering those connections, whether it was possible Sandusky could have a fair trial. It all got me thinking about what it means to have a "fair" trial as a general concept.

Settlement Talks Begin in Duck-Boat Accident Trial

Testimony stopped in order to hold a settlement discussion on the second day of the civil trial related to the double fatality on a duck-boat tour two years ago.

Trial Date Set in Traffic Court Ticket-Fixing Prosecution

The federal judge presiding over the criminal cases of the Philadelphia Traffic Court judges charged with fixing tickets has scheduled their trial for November 12.

BP Trial Opens, With Possible Deal in Background

James P. Roy, the lead lawyer of private plaintiffs, started the trial with a scathing attack on BP for ignoring multiple signs of problems on the rig and in routine maintenance of safety tests and equipment that led to the Macondo well accident.

“BP made a series of decisions to save time and money that substantially increased risk,” Mr. Roy told a packed courtroom. He said the decisions were typical of “a culture of profit and production over safety.”

In more than an hour of testimony, Mr. Roy noted that BP had decided to employ single-walled drill pipe, which provided inferior barriers to leaks, and it decided that it was not necessary to circulate drilling mud, a method designed to strengthen cement, before installing a seal on the well. He reminded the court that BP opted against conducting a cement bond test, an acoustics test that could have identified the gas that had leached into the piping during the well cementing process.

And finally, he said, using information that has previously been described in numerous government and private reports since the accident, BP ignored the results of a failed pressure test shortly before the well was sealed and blew out.

But Mr. Roy also argued that Transocean, the owner and operator of the Deepwater Horizon rig, had failed to adequately train its employees in emergency operations, and Halliburton was deficient in testing and mixing the cement to seal the well.

The first phase of the trial, which was expected to last three months under Judge Carl J. Barbier of Federal District Court in New Orleans, will determine whether BP or its contractors were “grossly negligent” in causing the accident. The private plaintiffs in the trial, including thousands of businesses and individuals, are suing for damages from all the companies.

In his opening statement, Michael Underhill, the Justice Department’s lead attorney, said the government would prove that BP was grossly negligent. “Reckless actions were tolerated by BP, sometimes encouraged by BP,” he said. “These damages were caused by actions that cannot be seen as anything but inexcusable behavior.”

He discussed a phone call between Donald Vidrine, a BP supervisor on the rig who has already been criminally charged, with Mark Hafle, an onshore engineer, in which Mr. Vidrine described problems with a critical test less than an hour before the explosion. But neither man took action to stop operations to prevent the eventual blowout.

Separately, details of a settlement offer by federal and state officials to the oil company began to emerge over the weekend. The plan, worth a total of $16 billion, would limit the fines paid by BP under the Clean Water Act to $6 billion, a proposal that could help reduce its tax liability, one person briefed on the plan said Sunday, speaking on the condition of anonymity.

BP would also pay $9 billion in penalties to cover damages to natural resources as well as the cost of restoration, that person said. The remaining $1 billion would be set aside in a fund that could be tapped if unanticipated environmental damages related to the spill developed.

No one at BP, the Justice Department or the states involved has commented on any settlement proposal, but several lawyers briefed on the negotiations said that a $16 billion proposal had been made. The affected states are Alabama, Florida, Louisiana, Mississippi and Texas, although only Alabama and Louisiana are participating in the trial.

Even if settlement talks slow or stall, the proposal represents a big breakthrough for several reasons, lawyers briefed on the talks said. For one, it represents the first time that Louisiana, which was hardest hit by the spill and would receive the largest payout of any state from a settlement, has participated in an offer.

In addition, the proposal signals the first agreement among states and the federal government on two other crucial issues: a rough plan for how the states would divide any settlement money, and how the settlement would balance fines and penalties against BP.

BP pleaded guilty last year to 14 criminal charges, including manslaughter; admitted negligence in misreading important tests before the blowout; and agreed to pay $4.5 billion in fines and other penalties. The Justice Department has also filed criminal charges against four BP employees.

Last February, a trial to resolve claims against BP by individuals and businesses affected by the spill was delayed by Judge Barbier on the eve of trial because of settlement talks. BP subsequently agreed to create a fund now valued at $8.5 billion to settle those claims. However, numerous individuals and businesses chose not to participate and are also parties to the trial that started Monday.

Trial Set for Indicted Traffic Court Judge

Philadelphia Traffic Court Judge Robert Mulgrew, who has been suspended from his judicial duties until his federal criminal case is resolved, is set to go to trial with two co-defendants June 5, 2013, U.S. District Judge C. Darnell Jones II of the Eastern District of Pennsylvania said during a court hearing today.

Internet Law: Trial Courts Yet to Find Consistency in 'Facebook Race'

Highlighting the need for guidance from the state's appellate courts, a Monroe County judge's recent decision on a discovery motion into a woman's social media account appears to have deviated from the growing school of thought among Pennsylvania jurists.