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Update in United States v. Lori Drew:
The Associated Press has a report on today's hearing in the Lori Drew case.
einhverfr (mail) (www):
This is encouraging. It allows Lori to be charged with the specific crimes the DA is pushing. FWIW, I agree with the judge here.

It also does suggest this will go to trial and the jury will have to decide whether registering a fake profile is a felony.
11.10.2008 6:20pm
Ex-Fed (mail) (www):
I have appeared before Judge Wu. He is very smart and a decent guy.

But just once I'd like to have something ruled on when it is briefed and argued, rather than pushed off for some future date.
11.10.2008 6:28pm
Fub:
einhverfr wrote at 11.10.2008 6:20pm:
It also does suggest this will go to trial and the jury will have to decide whether registering a fake profile is a felony.
Exactly. Ironic that the prosecution opposed a bench trial too. They probably thought the suicide evidence wouldn't be excluded, so they could hoodwink a jury with appeals to gut wrenching emotions.

This is one of those cases where I'd almost like to see both sides lose. But it's ultimately better for everybody that the government lose.

If using a false name to register at a website is a felony by law, then the law truly is an ass, along with some prosecutors and judges.

Not to mention that most of the commenters here would be felons.
11.10.2008 7:08pm
Mahan Atma (mail):
"If using a false name to register at a website is a felony by law, then the law truly is an ass..."


The CFAA truly is an ass. The wording is far too overbroad.
11.10.2008 7:11pm
PDXLawyer (mail):
Has "prosecutorial discretion" become a complete oxymoron? Seriously, I'd be interested to know of examples where prosecutors have decided not to proceed for reasons other than: (1) fear of an embarrassing loss at trial; or (2) resource constraints.
11.10.2008 7:16pm
Zero Signal (mail):
It makes me sad for you Orin that you have to defend such a terrible waste of humanity for all the right reasons.
11.10.2008 7:44pm
Jeff R.:
If psychologically terrorizing a minor to the point of suicide isn't a felony by law, then the law is also an ass. (Presumably by some other law than the one being used here, but still...Capone, Income Tax...)

Also, I don't see how this ruling actually does anything practical. Excluding the 'world would be better off without her' messages would be extreme overreach, and that evidence plus the fact that there won't be any testimony from the victim (and the lawyers circumlocute around her status throughout the trial) will be enough for any jurors with two brain cells to rub together to figure out. [And, of course, admonitions from the judge not to reach any such conclusions will only make things worse.]
11.10.2008 8:00pm
Oren:

And, of course, admonitions from the judge not to reach any such conclusions will only make things worse.

IANAL, but I presume that instructions from bench are limited to the possible. At least for myself, I don't think I could do otherwise but to conclude that the victim snuffed it.
11.10.2008 8:06pm
More importantly . . .:

If psychologically terrorizing a minor to the point of suicide isn't a felony by law, then the law is also an ass.


If a simple "the world would be better off without you," delivered via the internet, can constitute "psychological terrorism" . . . we may as well all lock ourselves up.
11.10.2008 8:08pm
Lior:
Forcing a defendant to face a lay jury against her wishes is rather tyrannical, isn't it? Surely the government cannot claim that the court may be biased against them (the usual argument for the jury?).

The only potential justification for the government's move can be tactical -- their case is weak, so they are going to gamble they can hoodwink a jury. That think kind of behaviour is ethical speaks to the problems of the jury system.
11.10.2008 8:10pm
Curt Fischer:
To follow up on Lior's point, I'd love it if a smart lawyer-y type could enlighten me on how the right to a jury trial specified in Amendment 6 came to be a right for the prosecution as well as the defence?
11.10.2008 8:44pm
GV:
The Sixth Amendment just says that the defendant has a right to a jury trial; it does not say that a defendant has a right to a bench trial. And by statute, Congress has provided the Government with veto power if the defendant wants a bench trial. So, to answer Curt Fischer's question, the right to a jury trial became a right for the Government because Congress gave it the right.
11.10.2008 8:52pm
Curt Fischer:
Thanks GV! Any chance someone could further explain when Congress passed the relevant statute, and how the debate around the law shaped up?

(Maybe we need a political historian for that.)
11.10.2008 8:58pm
einhverfr (mail) (www):
Jeff R Wrote:

Excluding the 'world would be better off without her' messages would be extreme overreach, and that evidence plus the fact that there won't be any testimony from the victim (and the lawyers circumlocute around her status throughout the trial) will be enough for any jurors with two brain cells to rub together to figure out.


What do you mean? MySpace is the victim of these specific crimes right?

Or are you alleging that Lori broke into the teenager's computer?
11.10.2008 8:58pm
einhverfr (mail) (www):
Correction:

MySpace is the victim of these specific crimes right?

Should read:
MySpace is the victim of these specific alleged crimes right?
11.10.2008 9:02pm
David M. Nieporent (www):
Also, I don't see how this ruling actually does anything practical. Excluding the 'world would be better off without her' messages would be extreme overreach,
How do you figure? You can't get a more blatant case of prejudicial effect substantially outweighing probative value.
and that evidence plus the fact that there won't be any testimony from the victim
Uh, the "victim" according to the prosecution's theory is Myspace, not the teenager who killed herself.
11.10.2008 9:03pm
Mahan Atma (mail):
"To follow up on Lior's point, I'd love it if a smart lawyer-y type could enlighten me on how the right to a jury trial specified in Amendment 6 came to be a right for the prosecution as well as the defence?"



Probably by statute. The defendant doesn't have a constitutional right to trial by judge.
11.10.2008 9:13pm
Ken Arromdee:
If a simple "the world would be better off without you," delivered via the internet, can constitute "psychological terrorism" . . . we may as well all lock ourselves up.

The whole pattern of statements over months was psychological terrorism. No individual statement can be considered that alone without the context of the rest of the statements.
11.10.2008 9:30pm
einhverfr (mail) (www):

If using a false name to register at a website is a felony by law, then the law truly is an ass, along with some prosecutors and judges.


Fortunately even after a trial by jury, that is an issue that judges can and should decide.
11.10.2008 9:34pm
Lior:
The defendant doesn't have a constitutional right to trial by judge.


Indeed. But just because the right is not explicitly mentioned doesn't mean that it should be taken away.

In any case, I think a more interesting question for the experts here is the following: does the government have to justify to the court its preference for trial by jury, or is it enough that they ask, just like the defendant?
11.10.2008 9:36pm
GV:
Lior, Rule 23 of the Federal Rules of Criminal Procedure grants the Government its bench-trial veto power. As far as what standard governs the Government's power, it's essentially boundless. The only constitutional limit is that the Goverment cannot force a defendant to undergo a jury trial if such a trial would somehow necessarily be unfair. (Perhaps a case with lots of admissible, but incredibly, incredibly inflamatory evidence.)

I believe at common law, the defendant was required to have a jury trial; he could not have had a bench trial even if he wanted one. Thus, there was no issue of what to do if the defendant wanted a bench trial but the Government didn't. As far as I know, as long as the defendant has had the option of electing a bench trial in federal court in this country, the Government has had veto power.
11.10.2008 10:30pm
Heh:

In any case, I think a more interesting question for the experts here is the following: does the government have to justify to the court its preference for trial by jury, or is it enough that they ask, just like the defendant?


In many state courts the defendant in a criminal trial can waive a jury and it results in a bench trial. In Federal Courts, the defendant must waive AND both the prosecution and the court itself must agree. I don't believe the prosecution has to justify or ask. They pretty much have veto power :)
11.10.2008 10:33pm
robert bolt (www):
Wife: Arrest him!
More: For what?
Wife: He's dangerous!
Roper: For all we know he's a spy!
Daughter: Father, that man's bad!
More: There's no law against that!
Roper: There is, God's law!
More: Then let God arrest him!
Wife: While you talk he's gone!
More: And go he should, if he were the Devil himself, until he broke the law!
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?
This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
11.11.2008 3:15am
pintler:
Re: the discussions above about admissibility of this or that email.

If the crime charged is giving a false name when registering for a myspace account, why is the content of the email(s) probative?
11.11.2008 10:01am
Laura(southernxyl) (mail) (www):
"If a simple 'the world would be better off without you,' delivered via the internet, [to a depressed 13-yr-old girl while pretending to be a boy who was first interested in her and then turned on her, for the sole purpose of causing emotional destress,] can constitute "psychological terrorism" . . . we may as well all lock ourselves up."

Who's "we", paleface?
11.11.2008 11:31am
Visitor Again:
On the Government's right to veto a jury waiver, see U.S. v. Singer, decided by the U.S. Supreme Court in 1865, I believe.

It makes me sad for you Orin that you have to defend such a terrible waste of humanity for all the right reasons.

To the contrary, that's the highest calling of an advocate.
11.11.2008 11:41am
Visitor Again:
Sorry, 1965, I believe.
11.11.2008 11:41am
Fub:
pintler wrote at 11.11.2008 10:01am:
If the crime charged is giving a false name when registering for a myspace account, why is the content of the email(s) probative?
I expect that prosecution wants to show that defendant had some intent that made her violation of the website's TOS a crime under the statute, and not just a breech of contract or a common law tort. So they would claim that the contents of the emails were probative of defendant's intent.

Since evidence of Megan's suicide is excluded, the emails are the evidence which by which they hope to convince a jury that defendant's
“offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” 18 U.S.C. § 1030(c)(2)(B)(ii).
As I understand it, that's the statute under which the crime is charged.
11.11.2008 12:09pm
Anderson (mail):
Is anyone on the jury going to be unaware of the suicide?
11.11.2008 12:18pm
einhverfr (mail) (www):
Fub---

I am not a lawyer, so I could be reading the law wrong. However the section you quote could only really apply to sentencing. I.e. 18 USC 1030(c) only occurs when conditions in 18 USC 1030(a) and 18 USC 1030(b) are met. It seems more plausible that the controversy is over whether 18 USC 1030(a)(5)(B)(iii) is at issue. I.e. whether the access to the computer caused physical injury to someone.

It seems reasonable to conclude that, for the purposes of this law, that Megan caused physical injury to herself, and that this doesn't apply here. The reason why I say this is that the other elements deal specifically with financial and other tangible harms, and so I am not sure that hurt feelings necessarily count. In essence, the difference is that Megan decided to cause herself physical injury, while the law seems to my mind to be written to only apply to cases where the violator causes injury by something more than mere persuasion.
11.11.2008 2:34pm
Joe Hiegel:

On the Government's right to veto a jury waiver, see U.S. v. Singer, decided by the U.S. Supreme Court in 1865, I believe.

It was Singer v. U.S. (308 U.S. 24) when heard by the Court.
11.11.2008 3:22pm
Rich Rostrom (mail):
One of the advantages of a jury trial to the prosecution (in Cook County. Illinois, at least) is that the jury is much less likely to be fixed on behalf of a politically connected defendant. While a crooked judge can try to pervert a jury trial to produce a bogus acquittal, it's more difficult than if he can just issue the verdict himself.

On another topic: why is this case being tried in California, when all the persons concerned lived in Missouri? Or does it have something to do with where FaceBook is based?
11.11.2008 7:22pm
David M. Nieporent (www):
On another topic: why is this case being tried in California, when all the persons concerned lived in Missouri? Or does it have something to do with where FaceBook is based?
MySpace, and yes.
11.11.2008 9:35pm
Visitor Again:
On the Government's right to veto a jury waiver, see U.S. v. Singer, decided by the U.S. Supreme Court in 1865, I believe.

It was Singer v. U.S. (308 U.S. 24) when heard by the Court.

Yes, my memory failed me after 43 years. But now my turn to correct you. It's volume 380 of the U.S. Reports, not 308.
11.11.2008 10:20pm
UChicago student:
FYI, the current episode of Law &Order: SVU is apparently "ripped from the headlines" on the Drew story, albeit with many more sordid plot points.
11.11.2008 10:42pm
Joe Hiegel:

FYI, the current episode of Law &Order: SVU is apparently "ripped from the headlines" on the Drew story, albeit with many more sordid plot points.

The Drew case and the Gloucester pregnancy pact case, in a rather interesting conflation. Thence it is clear that Orin, et al., have been pursuing the wrong defense here; they need only prove that Jesse McCartney strangled MM.
11.12.2008 1:26am
einhverfr (mail) (www):
I guess one of my biggest concerns is that if one reads 18 USC 1030 the way the prosecution does, providing false information to the NYT online site in order to read an article would be punishable by up to a year in prison for a first offence, and up to 5 years in prison for subsequent offences. The law was pretty clearly written to apply to breaking into computers, not merely violating terms of service.
11.12.2008 11:55am