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Jury Question in the Lori Drew Case:
The jury in the Lori Drew case spent the day deliberating, and a question asked by the jury suggests that a verdict may have been reached in some counts already:
  A Los Angeles federal court jury deliberating in the MySpace cyber-bullying trial of a Missouri mother has suggested in a note to the judge that it has reached verdicts on three of the four counts.
  The note sent Tuesday during the first day of deliberations asked, "Can we be hung on one count but unanimous on the others?"
  U.S. District Court Judge George Wu told the jurors to return Wednesday and resume deliberations.
GMUSOL05:
I hope to god this defendant has the resources to appeal any adverse result in this case.
11.25.2008 9:09pm
OrinKerr:
GMUSOL05,

Given that my rate for this case is zero, I am pretty sure she does.
11.25.2008 9:23pm
Paul Milligan (mail):
If there's any 'conviction', it will be a travesty. Yes, what she did was nasty, mean, cruel, inhuman, etc - none of which makes it illegal, and none of which makes her responsible for anyone's death.
11.25.2008 9:24pm
Redlands (mail):
If there's any 'conviction', it will be a travesty. Yes, what she did was nasty, mean, cruel, inhuman, etc - none of which makes it illegal, and none of which makes her responsible for anyone's death.


If what she did was not illegal I'm sure, if there's a conviction, it will be overturned by the 9th.
As for responsibility for a death, that's not the issue before the jury is it?
11.25.2008 9:28pm
GMUSOL05:

Given that my rate for this case is zero, I am pretty sure she does.


I am quite embarrassed that I did not know that you were a part of the defense. Best of luck.
11.25.2008 9:30pm
GV:
In my experience, this type of note is never good for the defendant. This is, however, an unusual case, so maybe it is good news.
11.25.2008 9:41pm
mums (mail):
Professor Kerr,

Apart from the obvious, can you tell us your thoughts on Judge Wu permitting the jury to be informed of the fact Megan committed suicide?
11.25.2008 9:51pm
Paul Milligan (mail):
"As for responsibility for a death, that's not the issue before the jury is it?"

As I understand it from memory, they're basically charging her with having faked a UserID on Facebook. They're trying to couch it in terms of 'illegal access to a computer system' etc.

If her actions in that were sufficient, then we'd better start building some really really big prisons ASP, because there are millions of peopel every day that do exactly that ( fake an ID to a blog or what website ).

Hell, half the users right here at VC use pseudonyms. Let's round 'em up and start measuring them for orange stripes !!!
11.25.2008 10:13pm
Waldensian (mail):
Small question born of genuine curiosity -- Why does everyone refer to this as the "Lori Drew" case rather than just the "Drew" case?
11.25.2008 10:13pm
Portland (mail):
[Deleted by OK on relevance grounds. "portland," if you would like to comment here, please comment on matters relevant to the thread.]
11.25.2008 10:22pm
Cornellian (mail):
In Lori Drew you have a woman who quite literally terrorized a young girl until she was dead. It's a stretch of law to convict her? I don't care. Let her fry.

I imagine that's probably the sentiment of quite a few voters. That's why electing judges is not a good idea.
11.25.2008 10:51pm
LA 3L:
Having watched the closing arguments (thanks Mr. Kerr for the heads-up), I can report that Ms. Drew's counsel did an excellent job of his defending his client. Although no one condones what she did, I found it too much of a stretch to convict her under the government's theory. Hopefully Judge Wu will grant the motion to dismiss if the jury convicts. If not, best of luck on the appeal.

Regardless, I would expect this case will be a wakeup call for Congress to create some cyber-bullying laws.
11.25.2008 10:54pm
JB:
It's a stretch of law to convict her of defrauding Myspace because you're mad at her for terrorizing a young girl.

Lori Drew has not been charged with anything that could conceivably relate to what she did to the girl. Were she charged with something like that, there would not be grounds for complaint. But this trial has seen evidence introduced that is irrelevant to the charges, and was introduced solely to inflame the jury.
11.25.2008 10:57pm
SIV:
I am disappointed that Missouri doesn't have "breaking on the wheel" or "drawing and quartering" as options in sentencing.
11.25.2008 10:58pm
Obvious (mail):
LA 3L: "Regardless, I would expect this case will be a wakeup call for Congress to create some cyber-bullying laws."

Is that what they teach in law school these days, that there is no conceivable social problem that can't, and shouldn't, be solved by passing another law?
11.25.2008 11:14pm
Fub:
Obvious wrote at 11.25.2008 11:14pm:
Is that what they teach in law school these days, that there is no conceivable social problem that can't, and shouldn't, be solved by passing another law?
I took LA 3L's comment to be an assessment of Congress' usual proclivities to create moral panics with hysterical rhetoric, pass insanely corrosive laws to "solve the problem", then brag to their constituents about it at election time.
11.26.2008 12:11am
Really, Quartering?:
Putting aside the silliness of your question on both policy and constitutional grounds, SIV, did you bother to check where this case was pending before you asked?
11.26.2008 12:13am
OrinKerr:
mums asks:

Professor Kerr,

Apart from the obvious, can you tell us your thoughts on Judge Wu permitting the jury to be informed of the fact Megan committed suicide?
I have been avoiding substantive comment on the case given that it is still pending with the jury: In that setting, my role as counsel trumps any role as commentator. However, I expect I will probably say more about the case after the jury renders a verdict and/or Judge Wu rules on the motion to dismiss.
11.26.2008 12:20am
Jacob Berlove:
SIV,

Why breaking at the wheel or drawing and quartering when the suicide was carried out by mere hanging?
11.26.2008 12:41am
sum budy:
What I've read of the case so far seems straight out of a 2L Evidence casebook -- it was clearly prejudicial for the judge to allow the grieving mother to testify about how her daughter died, when her death provides very little factual information about the accused crime. (I'm aware that the judge chastised the main attorney for not objecting during the mother's testimony, but I think he did object before she took the stand.) Indeed, if the jury convicts and the judge lets the verdict stand, I strongly suspect that this will be overturned on appeal on the basis of prejudice.

(Of course, the computer geek in me would prefer to have this overturned on the basis that the prosecutor's reading of the criminal statute would effectively make it a crime to breach any online contract.)

Lori Drew may be a horrible excuse for a human being. But there's no law against being a disgusting person.
11.26.2008 1:31am
B11:
Dumb Question: Why is the motion to dismiss being considered *after* the matter has gone in front of a jury? Wouldn't it make more sense to resolve that issue before empaneling the jury? Or is it because the judge can't rule on the issue until after (s)he has heard the evidence?
11.26.2008 1:41am
sum budy:
B11: One potential reason: Because if the jury decides that she's not guilty, there's no need for the judge to decide any of the trickier questions in the case. I never took criminal procedure in law school (and have since forgotten everything I learned for the bar exam), but there might be a double jeopardy issue as well.
11.26.2008 1:52am
sum budy:
I should have said: I suspect that once a jury is empaneled, a double jeopardy issue might arise. Orin (or anybody else who remembers the rule) is most certainly much more qualified to confirm my suspicion.

However, although I may disagree with the judge's decision not to decide the legal issues first, there's a practical explanation: If the judge decides the legal issues incorrectly, the case could bounce up and down in the courts for a few years before resolution. If a jury finds her not guilty, the legal questions become irrelevant.
11.26.2008 1:56am
Jay:
It's mostly explained in Fed. R. Crim. P. 29. A competent defense lawyer will make the motion a both the end of the government's case and again at the end of the defense (if there is one). Pursuant to 29(b), the judge will almost always reserve ruling until after the verdict. Basically for the reason posited--a judge who thinks the motion might be well taken would still rather have a jury dispose of the case that appear to preempt their function.
11.26.2008 2:11am
eric (mail):
While I agreed with Jay and others as to why the judge might reserve his ruling on the motion, I think that doing so is irresponsible. If there is a legal flaw in the charges, the judge should dismiss as soon as possible to spare the defendant the trial.
11.26.2008 7:49am
RPT (mail):
Prof Kerr:

Serious question:

Is there an explanation why this case was brought in this district (in which I practice)? Imagine what the case would have been like with Judge Real.

USA Scandal comment:

I know all the resources previously devoted to the Jerry Lewis case were freed, but why did the current USA choose to do this?

Social policy question:

Is there any alternative sanction that might or should have been applied to Ms. Drew?
11.26.2008 9:39am
stoopid person:
I'm a fakeaccount heheh go kill everybody hahaha
11.26.2008 9:57am
thatguy (mail):
Paul Milligan
Although I agree with your point, I would like to make one minor correction to this statement :

and none of which makes her responsible for anyone's death.

I'd like to change that to legally responsible. She may not have committed an actual crime by the letter of the law, and you'll never find me claiming the absurdity that a TOS breach for a website has any legal meaning, Lori Drew does indeed share some moral responsibility in this girls suicide. A responsible adult and parent should know that tormenting a mentally unstable teen can have tragic consequences. As a result, while she might not have earned legal sanctions, social sanctions from friends and neighbors. Imprisoned, no. Ostracized yes.
11.26.2008 10:00am
David M. Nieporent (www):
Is there an explanation why this case was brought in this district (in which I practice)? Imagine what the case would have been like with Judge Real.
The alleged victim is MySpace, and that's where MySpace is located.
11.26.2008 10:02am
GuestTroll1234 (mail):

It's a stretch of law to convict her of defrauding Myspace because you're mad at her for terrorizing a young girl.

Lori Drew has not been charged with anything that could conceivably relate to what she did to the girl.


She broke ToS of MySpace to create a false account used to terrorize the poor girl. Although terrorizing her may not have been illegal, the means at which she did it were. She overstepped the terms of her usage of the MySpace service. I don't see how this ISN'T an excellent way to punish her for what she did.
11.26.2008 10:20am
Paul Milligan (mail):
'That guy' - quite right. 'not Legally responsible'. And, I suspect, morally innocent of murder ( I doubt she ever anticipated the girl would kill herself ). Which doesn't excuse her despicable actions, of course. But the usual 'penalty' for violating TOS on a website is getting your free account cancelled ( or your post redacted, as happened here in this thread to someone ), not criminal conviction.

'Troll' - 'She broke ToS of MySpace ... I don't see how this ISN'T an excellent way to punish her for what she did.' You get a 3 on the Troll-o-meter. Better luck next time.
11.26.2008 11:11am
mums (mail):
Troll:

Do you have no qualms that Drew allegedly didnt even see the ToS; that she didnt register the account whereby one must accept the ToS. Tough to intentionally violate a ToS when one may not even know a ToS existed or what is explicitly covered in such terms.
11.26.2008 11:42am
man from mars:
This case is important because it evidences a sea change in American attitude towards law, from being an objective set of rules to being an instrument of the government to punish the unpopular.

It goes hand-in-hand with the economic change in philosophy: the government should pick the winners in business, just like it does in law.

These views are actually very common, indeed standard, in most other countries. So in a sense, this just shows how the U.S. is becoming more like other countries philosophically.

What is interesting about the Drew case, which distinguishes it from other politically motivated prosecutions like the Skilling prosecution, is that under the government's theory the vast majority of internet users are now criminals. Any person who has every violated any computer systems terms of service - whether the person knew about it or not, whether the person agreed to it or not - is guilty of a federal crime. Which person to prosecute is then entirely at the discretion of the government.

What's interesting is that people are accepting this gladly - people trust the government to prosecute only deserving people. I am certain that 50 years ago this could never have happened.
11.26.2008 12:02pm
RPT (mail):
"Mars:

It goes hand-in-hand with the economic change in philosophy: the government should pick the winners in business, just like it does in law."

This is news? For example, do you think that Halliburton's profitability has been based upon it "free competition" or effective performance in some kind of marketplace? Didn't the USSC "pick the winner" in 2000?
11.26.2008 12:12pm
Xanthippas (mail) (www):

If there's any 'conviction', it will be a travesty. Yes, what she did was nasty, mean, cruel, inhuman, etc - none of which makes it illegal, and none of which makes her responsible for anyone's death.


Given that she's a pariah and has been the target of internet vigilantes, my personal desire is for justice in this case is almost satisfied.
11.26.2008 12:31pm
Dan Weber (www):
Where did this concept that Lori Drew terrorized Megan come from?
11.26.2008 1:13pm
Portland (mail):

Given that she's a pariah and has been the target of internet vigilantes, my personal desire is for justice in this case is almost satisfied.


Not until and unless she hangs herself with her belt. Until then, I hope she rots in jail like the scum she is.
11.26.2008 1:33pm
einhverfr (mail) (www):

Not until and unless she hangs herself with her belt. Until then, I hope she rots in jail like the scum she is.


Even at the expense of living in a nation of laws? Is "justice" worth more than the rule of law?
11.26.2008 1:52pm
einhverfr (mail) (www):
Man from Mars wrote:

What is interesting about the Drew case, which distinguishes it from other politically motivated prosecutions like the Skilling prosecution, is that under the government's theory the vast majority of internet users are now criminals. Any person who has every violated any computer systems terms of service - whether the person knew about it or not, whether the person agreed to it or not - is guilty of a federal crime.


And in fact repeat offenders would be felons.

Note that any minor who uses Google is now guilty of committing a crime, as is anyone who provides false registration data in order to access, say, news sites' content.
11.26.2008 1:54pm
einhverfr (mail) (www):

Didn't the USSC "pick the winner" in 2000?


No. Actually they ruled that Florida's election and recount processes were inadequate and therefore corrupt beyond repair, but that they were the best possible at that late date.
11.26.2008 1:55pm
einhverfr (mail) (www):
GuestTroll wrote:

Although terrorizing her may not have been illegal, the means at which she did it were. She overstepped the terms of her usage of the MySpace service. I don't see how this ISN'T an excellent way to punish her for what she did.


And every teenager which uses Google to search the web is now a criminal by that same standard....

The key point is that you run up against the Constitution which provides a guarantee of due process before liberty or life can be taken. One isn't supposed to have laws which allow for discretionary prosecution of 80% of internet users.....
11.26.2008 1:58pm
mums (mail):
My understanding is those minors or those who provide false registration would be guilty of a misdemeanor, not a felony. Drew is in hot water with the Computer Abuse Act because she allegedly committed the misdemeanor in connection with a tort, here I believe the government is tagging on IIED.
11.26.2008 2:00pm
einhverfr (mail) (www):
mums:

Look at 18 USC 1030 (c)(2)(C) which addresses repeat offenders of (a)(2) violations whether or not a tortuous action was perpetrated. Repeat offenders, whether or not a tort was also committed face up to 10 years in prison.
11.26.2008 2:18pm

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