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Lori Drew Hearing Update:
This morning Judge Wu of the U.S. District Court in Los Angeles held a hearing on our motion to dismiss in the Lori Drew case. I argued for the defense, and AUSA Mark Krause argued for the government. The hearing lasted about 45 minutes. I don't yet have a transcript, but there's some coverage of the hearing from the Associated Press and Wired News.

  All in all, I thought it was a useful and productive hearing. Judge Wu was very interested and engaged, and he asked very good questions of both sides. He didn't leave an impression as to which way he would rule, at least as best I could tell, but he indicated that he would be writing up a decision on the case when he reached a decision. The sentencing date was pushed to April 30th, on the thinking that Judge Wu would first need to rule on our motion to dismiss and that the sentencing hearing would be dropped if the motion to dismiss is granted.
einhverfr (mail) (www):
April 30th..... That suggests a bit of a delay.
1.8.2009 6:55pm
Steve:
Were people named Steve allowed in the courtroom?
1.8.2009 6:55pm
OneThreeFive:
1.8.2009 7:46pm
OneThreeFive:
Sorry about that. More coverage.
1.8.2009 7:47pm
Crunchy Frog:
Steve: only those that have never visited Alaska.
1.8.2009 7:53pm
Sean M.:
I assume the sentencing hearing, if there is one, will be something of an anticlimax. Everyone seems to agree Drew is entitled to probation under even the Guidelines and the Government almost always believes a Guidelines range is appropriate in all cases.
1.8.2009 8:16pm
Cornellian (mail):
Judge Wu is a smart guy.
1.8.2009 8:18pm
Bill Dyer (mail) (www):
Prof. Kerr, it ought not go unsaid -- and this post's comments are as good a place as any to say it -- that regardless of whether you ultimately win or lose on Ms. Drew's behalf, you are doing a service to Jurisprudence and The Law (writ large, with capital letters) by taking up an unpopular cause to protect vital principles.

This is me, tipping my hat, to you -- as a practicing lawyer to another.
1.8.2009 8:35pm
TheCrux (mail):
OK. I have practised in federal court for ten years. I have handled some 150 United States Court of Appeals for the Ninth Circuit matters in addition to a fair amount of post-conviction and trial work. It is fair to say that I have read a lot of records.

I say this because I have never seen district court motions filed, at least in a non-habeas case, with Tables of Authorities and Tables of Content.

What is up with that?

Anyway, the government's sur-reply was better written than average (for an AUSA, they don't have to be that smart), but the author needs to find his Bluebook. Particularly in the area of citation signals.
1.8.2009 9:03pm
OrinKerr:
Thanks, Bill. I appreciate it.
1.8.2009 9:47pm
buckeye (mail):
Let me second Bill's motion. As a former prosecutor myself, I'm very disappointed at the blatant stretching of law and justice in the name of publicity hounding being undertaken by the prosecution in this case. Kudos for doing the right thing Orin.
1.8.2009 9:58pm
Daryl Herbert (www):
All in all, I thought it was a useful and productive hearing. Judge Wu was very interested and engaged, and he asked very good questions of both sides.

Of course, you have to say that, because the motion is still in front of him. :-)
1.8.2009 10:15pm
Displaced Midwesterner:
"I say this because I have never seen district court motions filed, at least in a non-habeas case, with Tables of Authorities and Tables of Content. What is up with that?"


Can't speak for district courts in the Ninth Circuit, but it is not uncommon in many district courts, in both civil and criminal cases, for major motions in complex cases to have tables of contents, authorities, and all the other bells and whistles you would see in an appellate brief.
1.8.2009 10:56pm
eric (mail):
Like TheCrux, I thought the table of authorities was odd too. I like it though.

I agree that Orin is doing a service here and tip my hat. Defending an overzealous prosecution must be very rewarding. I am glad he keeps us informed.
1.9.2009 12:36am
Patent Lawyer:
TheCrux--

Maybe it's peculiar to our complex patent litigation, but all of our significant motions in our current case (D.Del.) include full ToC/ToAs, as do claim construction briefs. But then, I am a first year--haven't seen that much yet.
1.9.2009 2:30am
Philistine (mail):

I assume the sentencing hearing, if there is one, will be something of an anticlimax. Everyone seems to agree Drew is entitled to probation under even the Guidelines and the Government almost always believes a Guidelines range is appropriate in all cases.



I wouldn't be so sure of that (assuming the Rule 29 motion isn't granted, of course).

I'd expect the Government to argue for an upward departure, and definitley for some jail time.

I also think it more likely than not, that they will advocate that the acquitted count still be treated as relevant conduct under the guidelines.

I'd also like to add my hat tip to Professor Kerr, both for his involvement in the case and for his reporting.
1.9.2009 10:40am
Dilan Esper (mail) (www):
I would have liked to come down for the hearing, but I was insanely busy. I wwill say that I have practiced before Judge Wu and I have no doubt that he will do an excellent job in determining this matter. He is a very smart judge.
1.9.2009 11:42am
Fub:
I'm late to the thread, but I'll join all those who thank Prof. Kerr for his work on this case.

I think this case's potential to diminish freedom is at least as great as that of the Skokie case in the 1970s; and the rage against the accused blinds as many as that case did to the actual loss of freedom if the government prevails.

I recall reading an old ACLU hand (I believe he was Jewish) urging the ACLU on the Skokie case to "Defend the bastards!" That's the kind of courageous action and insight into the greater implications of the case called for here, which I believe Prof. Kerr has performed brilliantly.
1.9.2009 1:17pm
Matt L. (mail) (www):
Prof. Kerr, thanks for keeping us updated. Looking forward to reading the transcript if/when it becomes available!
1.9.2009 5:01pm
questbargo (mail):
I too have practiced in front of Judge Wu, when he was a Superior Court judge. Good luck getting him to have a decision on the motion by April 30th.
1.10.2009 8:03pm
man from mars:
Orin,

You might want to take a look at West Virginia v. Blake (W. Va 2003) (statute under which no prosecutions have been bought for 20 years is void under doctrine of desuetude) and related cases. Even if they do not apply directly, the motivations are similar.
1.12.2009 1:54am

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