Hmm...now the judge in question (David Harvey) has recused himself from the DOTCOM trial: Megaupload judge quits case after inflammatory comment
What a complete surprise (NOT
Kim Dotcom loses a sympathetic New Zealand judge.
by Timothy B. Lee - Jul 18, 2012 12:10 pm UTC
The New Zealand judge overseeing Kim Dotcom's extradition fight has removed himself from the Megaupload case. At a recent conference on copyright, Judge David Harvey stated, "we have met the enemy and he is US," a reference to tough US intellectual property policy. Critics argued that the statement called his impartiality into question, and the judge apparently agreed.
"He recognises that remarks made in the context of a paper he delivered on copyright law at a recent Internet conference could reflect on his impartiality and that the appropriate response is for him to step down from the case," said the district court's chief judge, Jan-Marie Doogue, to the New Zealand Herald.
The comments came last week at the NetHui conference in Aukland. The conference was organized by a group that opposed strong copyright language in the Trans-Pacific Partnership treaty.
The development is a blow for Kim Dotcom, because Harvey's May ruling suggested he was sympathetic to Dotcom's arguments. "The United States is attempting to utilize concepts from the civil copyright context as a basis for the application of criminal copyright liability," he wrote, echoing the views of Dotcom's own lawyers. He ordered the US government to give Kim Dotcom data from his hard drives, ruling that their seizure had deprived the defendants of access to information they need to defend themselves.
Harvey has also granted Dotcom easier bail terms, allowing him to return to his mansion and freeing him from electronic monitoring requirements.
According to the Herald, the case will now be overseen by Judge Nevin Dawson. Dawson was previously involved in Dotcom's bail request back in February.
The most rational conclusion for this that I can come up with at the moment is that he may have deliberately contrived the situation
where he repeated the Twittered quote about "we have met the enemy and he is US", in such a public manner, in anticipation of subsequently recusing himself because of it. (I mean, after making such a statement, he would have to, wouldn't he? It's not like he wouldn't have known that.)
This conclusion is based on an assumption that, generally, judges are not complete idiots - debatable, perhaps, but just bear with me.
Knowing the little that we are allowed to know, at least two possibilities occur:
- (a) Judge David Harvey had to be removed for granting Dotcom easier bail terms: they had been incredibly stern terms initially, presumably at the behest of the US SS, who would seem to have been orchestrating the whole Dotcom SWAT by a sort of remote control over the NZ authorities. So, perhaps to please the US contingent, he could have been quietly "got at" by the NZ government and told to manufacture his own recusal.
- (b) Judge David Harvey wanted or saw no ethical option but to recuse himself: after reading the published ruling of New Zealand High Court judge Helen Winkelmann - that the Dotcom raid was illegal - probably no self-respecting judge would be able to rest easy.
Even without that judgement, in his arriving at a judgement over Dotcom's bail terms, David Harvey would presumably - even had his hands been tied - have been able to make his own observations of the egregious wrongness/illegality about the whole business, and could therefore have ruled leniently on the bail terms. He could thus have become biased in this way, and especially if he had sincerely put 2 and 2 together in quoting the Twittered comments about the TPPA (Trans-Pacific Partnership Agreement) at the NutHui Internet conference. For example, look at the possible reasoning:
"We have been instructed, and have complied, to carry out an illegal act (QED) against a New Zealand citizen over unsubstantiated charges (QED) of crimes related to Internet business, at the behest of the SS of a foreign power who is apparently regarded as being "the Enemy of Internet freedoms". Regardless of whether he has committed a crime (as yet unproven), NZ has thus done a great wrong to Dotcom, his family and his business and has thus breached his statutory and legal rights to protection by the government, justice and privacy. This is generally wrong on statutory, moral, ethical and legal grounds, and we have been complicit in it. It is tantamount to discrimination, victimisation, harrassment of an NZ citizen, compounded by theft, all committed by the NZ government."
My take on it is that it is probably (b)
. If the above suggested reasoning is generally correct, then most judges involved must be sick to their stomachs at what has happened. Even to a casual onlooker, it would seem to be a gross corruption of NZ authority and justice, and it now needs to be rectified. I'm not sure whether or to what extent the Big Bully is twisting NZ's arm over this (probably via threat of economic sanctions), but the NZ government must be sweating as to how to now gracefully extricate themselves from this mess and make proper reparation. The situation would be no different if Dotcom were subsequently found to be guilty of some crime. It is wrong on so many fronts that it beggars belief. Arguably no government deserves to be re-elected if it allows and/or continues to be complicit in this sort of thing. Judges need to remain impartial amidst the chaos.
If there is one thing that successive NZ governments have shown themselves to be, it is that they can be relatively legally balanced
One of the best examples of this would be the agreement over the Treaty of Waitangi claims and settlements
Whether you agree with it or not, the disenfranchisement of the Maori (aboriginal tribes) and the theft of their land via the TOW has been confronted, addressed and rectified. I think this reflects what any civilised society could do - if it put it's collective mind to it - to try to give back to the aboriginal inhabitants what was taken from them not so long ago by the colonists.
Try doing that for the American Indians or the Australian Aborigines and see how far you get.
We're all watching with acute interest here in NZ, because this Dotcom saga is turning into a watershed not only for NZ justice, but also apparently for Internet freedoms worldwide.