The media has been closely following the criminal trial of George Zimmerman, the racially charged trial in which Zimmerman is accused of murdering teenager Trayvon Martin. Just this week, a jury of six was chosen.

For most people, when we think of juries, we think of them as being comprised of twelve people. Indeed, for over 600 years, juries in the English and American legal systems have been 12 people (men, traditionally—which highlights another interesting aspect of this case with an all-female jury panel).

In 1898, the U.S. Supreme Court ruled in Thompson v. Utah that the Constitution requires a jury to be comprised of exactly twelve persons. However, in 1970, the Court revisited that holding. After assessing the legislative history of the Sixth Amendment and the purpose of the jury, the Court in Williams v. Florida held that Florida’s law permitting a six-person jury in a criminal trial does not violate the Sixth Amendment’s guarantee of the right to a trial by jury. The Williams Court reasoned as follows:

American Express Co. v. Italian Colors Restaurant, United States Supreme Court (6/20/13)
Antitrust & Trade Regulation, Arbitration & Mediation, Class Action

An agreement between American Express and merchants who accept American Express cards, requires that all of their disputes be resolved by arbitration and provides that there “shall be no right or authority for any Claims to be arbitrated on a class action basis.” The merchants filed a class action, claiming that American Express violated section 1 of the Sherman Act and seeking treble damages under section 4 of the Clayton Act. The district court dismissed. The Second Circuit reversed, holding that the class action waiver was unenforceable and that arbitration could not proceed because of prohibitive costs. The Circuit upheld its reversal on remand in light of a Supreme Court holding that a party may not be compelled to submit to class arbitration absent an agreement to do so.

The Supreme Court reversed. The FAA reflects an overarching principle that arbitration is a matter of contract and does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery. Courts must rigorously enforce arbitration agreements even for claims alleging violation of a federal statute, unless the FAA mandate has been overridden by a contrary congressional command. No contrary congressional command requires rejection of this waiver. Federal antitrust laws do not guarantee an affordable procedural path to the vindication of every claim or indicate an intention to preclude waiver of class-action procedures. The fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.

Read more: Arbitration Backed as Court Rules for American Express

Five opinions came down today from the United States Supreme Court. Read the summaries below and read the full text of the opinions at Justia’s U.S. Supreme Court Center.

Alleyne v. United States, United States Supreme Court (6/17/13)
Civil Rights, Constitutional Law, Criminal Law

Alleyne was convicted using or carrying a firearm in relation to a crime of violence, 18 U.S.C. 924(c)(1)(A), which carries a five-year mandatory minimum sentence. The sentences increases to a seven-year minimum if the firearm is brandished, 924(c)(1)(A)(ii), and to a 10-year minimum if it is discharged, 924(c)(1)(A)(iii). The jury form indicated that Alleyne had “[u]sed or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” Alleyne objected to a sentencing report recommendation of a seven-year term, arguing that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a judge’s finding of brandishing would violate his Sixth Amendment right to a jury trial. The district court overruled the objection. The Fourth Circuit affirmed.

The Supreme Court vacated and remanded, overruling Harris v. United States, 536 U.S. 545 and applying Apprendi v. New Jersey, 530 U.S. 466. Mandatory minimum sentences increase the penalty for a crime and any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Defining facts that increase a mandatory minimum as part of the substantive offense enables a defendant to predict the applicable penalty from the face of the indictment and preserves the jury’s role as intermediary between the state and criminal defendants. Because the fact of brandishing aggravates the prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received had a different range been applicable. The Court noted that its ruling does not mean that any fact that influences judicial discretion must be found by a jury.

Read more: Supreme Court says jury should have final say on facts that trigger mandatory minimums

Assoc. for Molecular Pathology v. Myriad Genetics, Inc., United States Supreme Court (6/13/13)
Drugs & Biotech, Patents

Myriad obtained patents after discovering the precise location and sequence of the BRCA1 and BRCA2 genes, mutations of which can dramatically increase the risk of breast and ovarian cancer. The discovery enabled Myriad to develop medical tests for detecting mutations for assessing cancer risk. Myriad’s patents would give it the exclusive rights to isolate an individual’s BRCA1 and BRCA2 genes and to synthetically create BRCA composite DNA. The district court entered summary judgment, finding the patents invalid under 35 U.S.C. 101 because they covered products of nature. On remand following the Supreme Court’s decision, Mayo Collaborative Servs. v. Prometheus Labs, Inc., the Federal Circuit found both isolated DNA and composite DNA patent-eligible. The Supreme Court affirmed in part and reversed in part, noting that the case did not involve “method claims” for new applications of knowledge about the genes or the patentability of DNA in which the order of the naturally occurring nucleotides has been altered. A naturally-occurring DNA segment is not patent-eligible merely because it has been isolated, but composite DNA is patent-eligible because it is not naturally-occurring. Myriad did not create or alter the genetic information encoded in the genes or the genetic structure of the DNA. Even brilliant discovery does not alone satisfy the section 101 inquiry. Myriad’s claims are not saved by the fact that isolating DNA from the human genome severs chemical bonds that bind gene molecules together. The claims are not expressed in terms of chemical composition, nor do they rely on the chemical changes resulting from the isolation of a particular DNA section. Composite DNA, however, is not a “product of nature;” a lab technician unquestionably creates something new when introns are removed from a DNA sequence to make composite DNA.

Read More: Natural DNA Cannot Be Patented, Supreme Court Rules

Gary Friedrich Enters., LLC v. Marvel Characters, Inc., US 2nd Cir. (6/11/13)
Contracts, Copyright, Intellectual Property, Trademark

Plaintiff sued Marvel, contending that he conceived the comic book character “Ghost Rider,” the related characters, and the origin story. Plaintiff also claimed that he owned the renewal term copyrights in those works. On appeal, plaintiff challenged the district court’s grant of summary judgment in favor of Marvel, holding that plaintiff had assigned any rights he had in the renewal term copyrights to Marvel when he executed a form work-for-hire agreement (the Agreement), six years after the initial publication of the issue in question. The court, by applying the “strong presumption against the conveyance of renewal rights,” concluded that the district court erred in holding as a matter of law that plaintiff had assigned his renewal rights to Marvel by signing the Agreement; plaintiff’s claim was not untimely as a matter of law because there were genuine disputes regarding whether plaintiff should have known about Marvel’s repudiation of his claim of ownership; and there were genuine disputes of material fact that precluded granting summary judgment on the issue of authorship. Accordingly, the court vacated and remanded for trial.

Read More: Marvel Must Defend ‘Ghost Rider’ Copyright, Court Says

A lawsuit filed in the U.S. District Court for the District of Wyoming alleged that the plane of Amelia Earhart had been located. Plaintiff Timothy Mellon stated in his Complaint that during its NIKU VI expedition around Nikumaroro from May 18, 2010, through June 14, 2010, Defendant The International Group for Historic Aircraft Recovery (TIGHAR) had obtained “footage of the wreckage of the Lockheed Electra flown by Amelia Earhart when she disappeared in 1937.”

Maryland v King, United States Supreme Court (6/3/13)
Civil Rights, Constitutional Law, Criminal Law

After his arrest on first- and second-degree assault charges, King was processed through a Wicomico County, Maryland, facility, where personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act), which authorizes officers to collect DNA samples from persons charged with violent crimes. A sample may not be added to a database before an individual is arraigned, and it must be destroyed if he is not convicted. Only identity information may be added to the database. King’s swab was matched to an unsolved 2003 rape. He unsuccessfully moved to suppress the DNA match. The Maryland Court of Appeals set aside his conviction, finding portions of the Act authorizing DNA collection from felony arrestees unconstitutional.  The Supreme Court reversed.  Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment when officers make an arrest supported by probable cause to hold and bring the suspect to the station to be detained in custody, for a serious offense.  DNA testing involves minimal intrusion that may significantly improve both the criminal justice system and police investigative practices; it is quick and painless and requires no intrusion beneath the skin. When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving interests in properly identifying who has been arrested, ensuring that the custody of an arrestee does not create inordinate risks for staff, for the existing detainee population, and for a new detainee, and in ensuring that persons accused of crimes are available for trials. Identifying an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned. The Court noted that the test does not reveal an arrestee’s genetic traits and is unlikely to reveal any private medical information.

Read More: Justices Allow DNA Collection After an Arrest

Back in January, key provisions of FISA – the Foreign Intelligence Surveillance Act – were renewed by Congress.  I wrote about the troubling situation of access to FISA Opinions, which is basically non-existent. Up until January, only one opinion had been released by the FISA Court, and only two opinions released by the FISA Court of Review. The FISA Rules of Court allow on the federal government or the FISA Courts themselves to release opinions without a court order.

Well, the Guardian UK got ahold of a recent opinion that compels Verizon to produce the telephony data for millions of domestic customers for the Government. This opinion, which you can read on the Guardian’s site, is marked as top secret and almost certainly was not released by the FISA Court itself. The Guardian only says that it “obtained” the opinion.

Others have tried to get the opinions, using a procedure (detailed in the last blog post) established to declassify opinions that contained “important rulings of law.” A 2012 FOIA Request, however, yielded “no records.”

California is proposing to charge citizens to access and read court files and other public documents. The Administrative Office of the Courts has proposed that the state charge $10 for every name, file, or information that comes back from a search. Techdirt has the story. Charging for search results – where have I heard that before?

VoxPopuLII has a great post from few days ago about access to published court opinions by the guys at Ravel Law. In their post, they discuss the de facto privatization of the law, and how to effectively change that. It’s a concise, organized overview of the problem and solution.

President Obama issued an executive order last month calling on the federal government to open access to public documents by making them “open and machine readable.” He called on government information to be “managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable.”

Well, I can think of a huge dataset waiting to be opened: case law from the US Federal District and Appellate Courts. Right now, some of the case law is published in slip format (the unofficial decision) in FDSys. It is machine readable, and contains metadata – both good things, consistent with this directive. However, it’s not official. If we are to take the White House mandate seriously, the official, published case law (issued by a private publisher), should be hosted in FDSys. This would make it “usable” under the Order.

In support of this move, President Obama references the release of government GPS and weather data, which encouraged entrepreneurs to create applications and tools of value to the American people.

Comcast Cable Communications, LLC v. FCC, et al, U.S. D.C. Cir. (5/28/13)
Communications Law

Tennis Channel, a sports programming network and intervenor in this suit, filed a complaint against Comcast Cable, a multichannel video programming distributor (MVPD), alleging that Comcast violated section 616 of the Communications Act of 1934, 47 U.S.C. 536(a)(3), and the Commission’s regulations by refusing to broadcast Tennis as widely as it did its own affiliated sports programming networks, Golf Channel and Versus. An ALJ ruled against Comcast, ordering that it provide Tennis carriage equal to what it afforded Golf and Versus, and the Commission affirmed. The court concluded that Comcast prevailed with its third set of arguments on appeal, that even under the Commission’s interpretation of section 616, the Commission had failed to identify adequate evidence of unlawful discrimination. The Commission had nothing to refute Comcast’s contention that its rejection of Tennis’s proposal was simply “a straight up financial analysis.” Accordingly, the court granted the petition.