Judge In Pirate Bay Trial Biased

maglo writes "The judge who handed down the harsh sentence to the four accused in the The Pirate Bay trial was biased, writes Sveriges Radio (Sweden Public Radio): sr.se (swedish). Google translation. The judge is member of two copyright lobby organizations, something he shares with several of the prosecutor attorneys (Monique Wadsted, Henrik Pontén and Peter Danowsky). The organizations in question are Svenska Föreningen för Upphovsrätt (SFU) and Svenska föreningen för industriellt rättsskydd (SFIR)."

Comments

English Language Article.

[telchine]

If Swedish isn't your native language, this article might prove more useful:

Pirate Bay Judge Accused of Bias

Re:English Language Article.

[reachinmark]

Alternatively, from The Local, an English language Swedish paper:

Pirate Bay Lawyer calls for retrial

Though it might be worth pointing out that the "call" for a retrial isn't actually official yet, just what the lawyer has said to journalists.

Re:English Language Article.

[aliquis]

One of the jurymen had to leave to since he was a composer, but I guess a judge who are part of the council in an organisation working to improve the interest and knowledge of the industrial protection rights of patents, brands, designs, plant engineering, name and company rights and protection against inappropriate competition and member of the other organization which goals is to discuss copyright is just fine.

Re:English Language Article.

[MikeBabcock]

A judge shouldn't be a member of any group promoting any specific type of justice, imho, as they're to be an impartial judge of the facts given them in court and not to be out for personal vendettas of any kind.

In practise this doesn't happen of course.

Re:Shouldn't Judges remove themselves?

[Shrike82]

As much as it pains me to use Wikipedia for a meaningful discussion of facts:

Those with a conflict of interests are expected to recuse themselves from (i.e., abstain from) decisions where such a conflict exists. The imperative for recusal varies depending upon the circumstance and profession, either as common sense ethics, codified ethics, or by statute. For example, if the governing board of a government agency is considering hiring a consulting firm for some task, and one firm being considered has, as a partner, a close relative of one of the board's members, then that board member should not vote on which firm is to be selected. In fact, to minimize any conflict, the board member should not participate in any way in the decision, including discussions. Judges are supposed to recuse themselves from cases when personal conflicts of interest may arise. For example, if a judge has participated in a case previously as some other judicial role he/she is not allowed to try that case. Recusal is also expected when one of the lawyers in a case might be a close personal friend, or when the outcome of the case might affect the judge directly, such as whether a car maker is obliged to recall a model that a judge drives. This is required by law under Continental civil law systems and by the Rome Statute, organic law of the International Criminal Court.

Emphasis mine. Background reading and links for anyone interested here. If this description is accurate (and I remind you again it's from Wikipedia so that's a real concern) then it would appear that any affiliation with copyright organisations would present a potential bias.

Re:suck it up

[rbarreira]

Not just a group that lobbies, a group that lobbies together with the prosecution!

Re:Shouldn't Judges remove themselves?

[bumby]

Yes, yes they should, and the article mentioned this. The judge did however not consider himself biased. Go figure...

Re:suck it up

[sjames]

lawyers/judges are often memebers of many many organisations, it doesn't mean they have the same rabid bias of an apple fanboy of /.

Membership is one thing. The judge is on the board of directors! That's just a wee bit stronger connection than fanboy.

That would be like allowing Steve Jobs preside over MS's trial.

Re:suck it up

[Burkin]

Occam's Razor is that the simplest answer is true,

Sorry, but no. Occam's Razor says that the explanation of a phenomena should make as few assumptions as possible. In no way does this translate to "the simplest answer is true" because in many cases the simplest answer isn't true.

Re:Shouldn't Judges remove themselves?

[Uberbah]

Maybe he's friends with Anton Scalia:

Besides Thomas, Scalia also took part in the decision while a close relative had a substantial interest in the outcome. Scalia's son Eugene is a partner in the Washington office of Gibson, Dunn & Crutcher, where one of the senior partners is Theodore B. Olson, who argued Bush's case before the Supreme Court.

Scalia refused to recuse himself from Bush v. Gore, although the lead lawyer for the plaintiff was, in effect, his son's boss. He took the same position in the various legal proceedings that accompanied the impeachment of Bill Clinton, beginning with the Supreme Court's decision to permit Paula Jones to proceed with her lawsuit against Clinton for sexual harassment, in which Olson provided legal assistance.

and

WASHINGTON - U.S. Supreme Court Justice Antonin Scalia refused on Thursday to remove himself from a case about Vice President Dick Cheney's energy task force, even though their recent duck-hunting trip raised questions about his impartiality.

But then, hackery has never been much of a problem

But Scalia's liberal critics have a point: His moral views have a habit of grafting themselves onto his constitutional philosophy. No one expects him to be a libertarian; he has stressed that his opposition to expanded federal power applies only to instances in which it is explicitly limited by the Constitution. But you might at least expect him to be oppose federal intervention within the parameters of his originalist vision. Or rather, you might have expected that until Gonzales v. Raich, this year's medical marijuana case.

Scalia voted to uphold the federal government's prerogative to go after medical consumers of homegrown pot, on the grounds that this activity supposedly affects interstate commerce. This ruling prompted Thomas to note in a caustic dissent, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers."

...for Scalia

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." If another judge used that rationale to find rights in the Constitution, Justice Scalia's reaction would be withering. He went on, in that 1991 decision, to throw out a suit by Indian tribes who said they had been cheated by the State of Alaska.

Re:Can you say conflict of interest?

[miffo.swe]

Its fairly common in sweden that the first instance of the court system (Tingsrätten) is viewed upon as a bunch of clowns you have to pass to get to the real court. They consists of local politicians and if your local ones are anything like ours you know they suck on a professional level in every way possible when it comes to just about anything they do.

Im fairly sure the TPB lawyers has been set for going to the highest level court from the beginning and planned accordingly. This little gem with a clearly biased judge doesnt really help the TPB guys other than for PR since whatever a retrial will result in the trial will be taken higher up in the court system.

Its just a huge PR win for us in the PirateParty and the public opinion. It paints a very clear and vivid picture of us small ones against greedy, corrupt, self-loving, elite and above-the-law politicians.

US rules do not apply

[Ibn al-Hazardous]

But since Sweden is not a part of the same judicial tradition as the US, this has no bearing on the TPB trial. In Sweden, you are pretty much guaranteed a second trial at a higher level, unless it is a question of a small-time crime (or the case is very simple). This being a high profile trial, making an appeal to the second level was a given, even before the trial started.

If the second level court decides the judge was biased, they will order a re-trial at the first level - which will then be followed be an appeals process. The reason the lawyers may not go through with a re-trial, is that it will only mean another trial that won't add anything of interest. Since this is a very special trial, the Supreme Court may take the case too - or order a re-trial at the second level. So a re-trial at the first level may not be worth it, we were probably looking at 3 or 4 trials anyway.

IANAL, but my cousin is a judge here in Sweden.

Re:Theoretical Issue, Not Practical

[lacoronus]

SFU is basically an organization for people who want to keep up to date with IP law.

SFU is a bit more than that when you look at the supporting members" where you find AB Svensk Filmindustri (Swedish Filmindustry inc.), IFPI, STIM" and several other organisations who have direct interest in a the case going against TPB

Yet, the SFU may not be biased. First of all, there are no organized anti-copyright organizations besides Piratpartiet, and they have so far not joined any professional interest groups. Second, participating in an organization vital to their business need not mean that they use that organization as a lobbying group. Third, there has not been any evidence of the judge having any personal connections to anyone with self-interest in seeing TPB fall.

So far, the defense has called it "delikatessjäv", or "delicate bias" - which is a "catch all" bias clause stating that even if no real connection can be proven, the trial should be re-done if there are circumstances that would make a suspicion of bias reasonable.

Of course, this needs to be understood in context - a judge having a bias against murder does not mean they're banned from judging murder trials because of delikatessjäv.

Of all cases of bias, the "delikatessjäv" is the weakest claim. You can't prove obvious bias, so you go for the catch-all.

We'll see. There's definitely something here that needs to be examined, but so far I haven't read anything that would cause me to scream "corruption!"