US Government denies Megaupload fair legal representation for a fourth time

By Lee Kaelin on

It quickly became obvious with the raids on Megaupload and its founder Kim Dotcom in January that US authorities were taking a no-nonsense approach to the file-sharing service, in what they aptly called the biggest criminal copyright case ever brought before the courts. Now it appears the government might be taking things a step too far, after refusing the ill-fated company and its founder their forth consecutive legal counsel.

After three previous law firms had been refused by the courts, well-known and highly prominent Quinn Emanuel Urquhart and Sullivan sought permission to represent Megaupload and its founder, Kim Dotcom. Unsurprisingly, the government raised yet more objections in a filing last week, which among other points included the refusal to free up seized money to enable the prominent law firm to represent them in court.

The government's court filling (PDF) argues that Kim Dotcom's current allowance as authorized by the New Zealand courts should provide him with the funds to pay for an adequate defense. Among other objections, the government also rejected representation by the top legal firm on the grounds that several companies have employed their services in similar cases in the past, and the government's calling of several of them as witnesses would create a conflict of interest.

Quinn Emanuel Urquhart and Sullivan hit back by counter-filing an 18-page document (PDF) in support of Kim Dotcom's right to legal representation, noting under no uncertain terms that the government was deliberately trying to make a scapegoat of Megaupload.

Megaupload Limited (hereinafter, “Megaupload”) is a corporate entity charged as a Defendant in this case. It has constitutional rights to due process and to the advice of counsel. Yet, if the Government is to have its way in this case, the only lawyers before the Court will be those representing the Government.  If the Government is to have its way, the only evidence available to the Court would be that cherry-picked by the Government, for the Government, from the universe of relevant servers slated to be wiped. If the Government is to have its way, in sum, Megaupload will never get its day in Court and the case will effectively be over before it has even begun. Megaupload’s fate will have been sealed by virtue of an indictment and corresponding asset freeze executed without the benefit of any adversarial proceeding or opportunity to be heard. Megaupload’s constitutional rights to contest the charges against it in a fair proceeding would be rendered worse than nugatory; they would be transformed into empty promises.

As well as rejecting every single point stated in the government's filing, Megaupload's lawyers pointed out that the file-sharing company has no available finances to pay for legal fees in its defense, and that the New Zealand courts specifically released the previously agreed monthly allowance purely for "living expenses" of Kim Dotcom, which does not extend to the payment of legal fees for himself or his corporation. Kim Dotcom they argue, will require experts in the relevant fields of forensics, as well as expert copyright lawyers, all of which costs considerable money and would prevent a fair trial without experienced legal counsel.

They also hit back strongly at the conflict of interests arguments, stating that the "government’s putative basis for disqualifying Quinn Emanuel would stand to disqualify essentially any law firm equipped to litigate one of the largest criminal copyright cases ever brought by the United States." The filing went on to say that such a broad statement, combined with the fact that only the government knew exactly what has been discovered in the estimated 25-petabytes of Megaupload content places them in the unique position to play "Gotcha" with any forthcoming legal firm prepared to defend them in court.

It goes completely against the very fabric of the US legal system, which considers a person innocent until proven otherwise by a jury. Therefore they have the right to a fair opportunity to defend themselves, which rather worryingly appears to be dissolving further at every turn. 

It will be interesting to see the reaction of the New Zealand legal system, as the ongoing extradition battle should supposedly be granted only on the condition the person(s) are subject to a fair trial after extradition. It could be strongly argued that the US legal system with their current stance is giving the distinct impression of a completely one-sided "show" trial, which is ultimately against the best interests of Megaupload's founder.

The courts and the US government are yet to respond to the filing by Quinn Emanuel Urquhart & Sullivan.

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