Saturday, December 31, 2016

Happy New Year!

Happy New Year!

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Thursday, December 31, 2015

"Hoverboard" Patent Litigation


"Hoverboards" as they have become known, have become popular this past year.  As explained in this Wall Street Journal article, the history and intellectual property behind the device is a bit murky.  When it comes to this device, the patent systems in China and the United States interact in interesting ways that are certain to lead to litigation.  It is unclear whether the market for this device will be sustainable due to quality control safety issues and increasing regulation of the device.  Like most consumer electronics it probably has a short shelf life before something new surpasses it in either technology or culturally.  Only time will tell if the impending patent war over this device is worth it.

See also:
http://www.jdsupra.com/legalnews/patent-system-is-not-the-fire-that-61839/
http://fee.org/anythingpeaceful/the-hoverboards-patent-problem/
http://www.buzzfeed.com/williamalden/bed-bath-and-hoverboards#.kvxlpWweo
http://tech.co/hoverboard-lawsuits-copyright-infringment-2015-12
http://mic.com/articles/131397/the-knockoff-hoverboard-industry-is-exploding-faster-than-its-products
http://www.usatoday.com/story/tech/2015/12/03/razor-suing-swagway-hoverboard/76744478/
http://www.thedailybeast.com/articles/2015/12/16/the-real-reason-hoverboards-are-bursting-into-flames.html#


The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Saturday, February 28, 2015

The Second Amendment and Californa's Mandatory Microstamping Law

In 2007 California enacted a law banning the sale of handguns that lack the ability to imprint the weapon's make, model, and serial number on the cartridge when the bullet is fired.  The purpose of the law is fairly obvious.  Imprinting information that identifies the weapon on the cartridge would aid in investigating shootings.  The law took effect in 2013.

In Pena v. Cid, 09-cv-01185, in the United States District Court for the Eastern District of California, Judge Kimberly Mueller ruled that this requirement did not implicate the Second Amendment right to bear arms.  She ruled that the Second Amendment does not guarantee a right of access to a particular type of handgun.

http://www.bloomberg.com/news/articles/2015-02-27/california-gun-microstamping-law-is-upheld-by-federal-judge

http://www.mercurynews.com/crime-courts/ci_27616476/federal-court-rejects-challenge-california-gun-safety-law

http://www.ocregister.com/articles/california-652651-law-microstamping.html

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County);

Saturday, December 20, 2014

Supreme Court Original Jurisdiction

The lawsuit by Nebraska and Oklahoma against Colorado is an interesting development on the legalization issue. This case filed by a state against another state would fall under the original jurisdiction of the Supreme Court which like appellate jurisdiction is discretionary. Texas v. New Mexico, 462 U.S. 554, 570 (1983).  They usually appoint a special master to conduct the trial and then review the record if they take the case and if it is justicible.

The lawsuit alleges that Colorado's marijuana legalization provision violates the Supremacy Clause of the United States Constitution.  U.S. Const. Art. VI, Clause 2.  Under federal law marijuana possession is illegal.  21 U.S.C. Section 812; 21 CFR 1308.11(d).  In Section 538 (page 213) of the recently passed Continuing Resolution Omnibus Act, the federal government cannot use federal funds to enforce federal laws that make the possession of marijuana illegal against state licensed medical users of marijuana.  That provision does not apply to non-medical possession and in states that have not legalized medical marijuana.

http://news.yahoo.com/2-states-challenge-colorado-marijuana-legalization-205235212.html?soc_src=mediacontentstory&soc_trk=fb

http://www.natlawreview.com/article/supreme-court-asked-to-decide-whether-colorado-s-marijuana-legalization-violates-con

http://www.ouraynews.com/articles/2014/12/19/colorado-states-file-suit-declare-marijuana-law-unconstitutional

http://www.cato.org/blog/nebraska-oklahoma-sue-colorado

http://www.rollingstone.com/politics/news/oklahoma-and-nebraska-sue-colorado-over-dangerous-marijuana-law-20141219

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Sunday, November 30, 2014

Appellate Case Timelines

The Wall Street Journal has an interesting article about the length of time that recent Supreme Court cases from the last five years were pending by the time they reached the apex court.  This article only considers cases where the Supreme Court granted a writ of certiorari which is a very small percentage of the cases that are appealed there. 

Not surprisingly most the cases were pending for 4-6 years.  Criminal appeals and some interlocutory appeals take priority, but after conviction criminal cases can take far longer than civil cases where collateral habeas corpus review is sought especially in death penatly cases.  Some cases may also be remanded back to the lower courts and come back for further review.  Other cases may first reach the appellate courts on preliminary procedural matters and once those are resolved return on appeals from the judgment.

http://online.wsj.com/articles/why-supreme-court-cases-are-marathons-1417394399

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Friday, October 31, 2014

Jurors and the Plea

In Williams v. Swarthout the U.S. Ninth Circuit Court of Appeals reversed a conviction, because the judge erroneously stated after swearing in the jury that the defendant pleaded guilty at the beginning of the trial.  The defendant had in fact pleaded not guilty hence the ensuing trial.  Earlier during voir dire the judge told the prospective jurors that the defendant pleaded not guilty. 

The mistake did become clear until the next day when the jurors, after deliberating for one hour, sent the judge a note asking the judge if he had said that the defendant pleaded guilty.   The judge reviewed the transcript and admitted the mistake on the record.  The prosecution and court reporter had noted the error, but did not say anything.  The defense move for a mistrial.  The judge summoned the jury and corrected the record.  The judge asked the jurors whether they were unable to accept the correction, but the jury was silent.  The judge asked if they didn't pay attention because of a mistaken belief that the defendant pleaded guilty.  Again the jury was silent.  The judge asked a third time if the jurors would be unable to set aside the mistaken statement that the defendant pleaded guilty.  The jury was silent.  Lastly the judge asked the jurors to raise their hands if they could not provide the defendant with a presumption of innocence, the right to remain silent, and the standard of proof beyond a reasonable doubt, but no hands were raised.  At this point the judge denied the motion for a mistrial. 

A few days later one juror sent a note to the judge admitting that he or she had assumed the defendant pleaded guilty and that the issue was simply whether the evidence supported the plea.  The juror was dismissed, but had already told the rest of the jury about the note and its content.  The remaining jurors each stated individually that they could disregard the court's misstatement as to the defendants plea.  The defendant was convicted of false imprisonment and two CSC counts and was sentenced to at least 50 years in prison.

On appeal to the California Court of Appeals the judgment was affirmed.  The California Court of Appeals concluded that an error occurred, but that it was cured and hence harmless.  The California Supreme Court denied leave to appeal.  The defendant then filed for habeas corpus relief.  The federal district court agreed with the California Court of Appeals. 

The Ninth Circuit reversed.  Federal habeas review is limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  Only claims where the state court decision is contrary to or is an unreasonable application of clearly established federal law or where the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."  28 U.S.C. Section 2254(d).  The Ninth Circuit ruled that in this case it had to defer to the state court's determination as to whether a federal constitutional error occurred.  It ruled that the state court held there was an error according to federal law as well as state law. 

However, the Ninth Circuit did not agree that the error was harmless.  In fact it noted that the misstatement as to the defendant's plea would have completely eliminated the prosecution's burden of proof if it was not corrected.  The court ruled that the judge's first instruction did not cure the error as one juror sent a note showing it had not been corrected days after remaining silent when asked if there was an issue.   The second correction was also not adequate even though the jury was silent when asked if any issues remained.  The court found that the judge had essentially rebuked the juror who sent the note to such an extent that no other juror would want to freely admit in open court that they were not fair and impartial.  Hence the error was not harmless and the defendant was entitled to a writ of habeas corpus and a new trial. 

There was a dissent in this case which agreed with the California Court of Appeals that the error was fully cured and hence harmless.

The Ninth Circuit Court of Appeals opinion can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/10/23/11-57255.pdf

http://www.courthousenews.com/2014/10/23/72743.htm

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler