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It's Rare For Me to Agree
with legal analysis in a New York Times editorial, but this editorial on the Lori Drew prosecution presents one of those rare cases. (Hat tip: Scott Greenfield)
societyis2blame:

The Supreme Court has held that the Constitution requires laws to contain "relatively clear guidelines as to prohibited conduct."


If only the Supreme Court applied this logic with any consistency with respect to other governmental regulations and prohibitions...
9.8.2009 9:45pm
Dave N (mail):
I know the feeling. I felt the same way when I actually agreed with Jukeboxgrad.
9.8.2009 9:51pm
Dave N (mail):
And that happened at least TWICE!
9.8.2009 9:56pm
Dan M.:
"Lawmakers should enact laws that can withstand challenge to give prosecutors tools to go after bullying of all kinds."

I hope you don't agree with this part.
9.8.2009 11:37pm
PeteP:
The whole thing reinforced my low opinion of lawyers and the law.

The DA was 100 % sucking up to public opinion in ever charging 'unauthorized access' for 'violating Myspace's TOS' ( since when do Internet chatboards and forums write criminal statutes ?? ), and the hearing judge should have dismissed the charge on day # one, with or without defense motion, as uncolorable under law, and he should have sanctioned the DA for even bringing it.

The question is not 'Did drew do mean stupid thing ?' but 'Did Drew break the law ?'. If Myspace's TOS, and by extension all others, are now 'criminal statutes', we are all truly F'd.
9.9.2009 12:08am
Curt Fischer:

The whole thing reinforced my low opinion of lawyers and the law.



For me it did the opposite. A man who I believed was motivated by little else but a strong belief in the rule of law, someone who didn't have much to gain by defending Drew, and someone with a busy full time job, that a person such as this would invest such time and energy to simply ensure that the law be made right...to me, that raised my opinions of lawyers and the law.
9.9.2009 12:32am
Mike McDougal:

The whole thing reinforced my low opinion of lawyers and the law.

You realize that there were lawyers on the other side of the case, right? You realize that the judge is a lawyer, right?
9.9.2009 2:22am
PeteP:
"You realize that there were lawyers on the other side of the case, right? You realize that the judge is a lawyer, right?'

yes, and kudos to the defense counsel ( Orin et al ). However, 2 out of the three sides of lawyers in the courtroom ( judge and prosecutor ) fell down on the job, 'in the name of the law'. They happened to be the two sides with state power and state funding as well.

In this case 'two out of three ain't bad' does not apply.
9.9.2009 8:20am
Falafalafocus (mail):
OK has hit the big time with both the jordan rings bot and the supra shoes bot giving mad props. Then again, I get the feeling that the bots have a vested interest in preventing TOS violations from being treated as criminal acts.
9.9.2009 8:27am
JohnKT (mail):
Kudos again, Prof Kerr. I was wondering if you would pick up on the NYT editorial.

To the person who opined that the prosecutor was sucking up to public opinion. I don't agree. From what I could tell he was genuinely angry that Lori Drew seemed to be getting away with a truly bad act because Missouri had no law to nail her with. He let his feelings stretch the Computer Crime Law to fill this gap.

In my books, what O'Brien (?) did is even worse than sucking up to public opinion. He is supposed to apply the law, not his personal outrage.
9.9.2009 8:41am
Tim Nuccio (mail) (www):


To the person who opined that the prosecutor was sucking up to public opinion. I don't agree. From what I could tell he was genuinely angry that Lori Drew seemed to be getting away with a truly bad act because Missouri had no law to nail her with. He let his feelings stretch the Computer Crime Law to fill this gap.


Duke Lacrosse case, anyone?
9.9.2009 9:27am
devil's advocate (mail):
dis nice little thread. like to come over my place for dinner to discuss . . .

i haven't seen that kind of stuff on the threads. I've respected Orin's stand here (BTW as I respected the defense counsel in the Libby, MT trial for taking the thankless task of defending 'corporate killers'- placing my marginally on the opposite side of Paul Cassell's tangenital involvement).

But, Orin, I second Dan M's question of whether you agree with the tagline that says


Lawmakers should enact laws that can withstand challenge to give prosecutors tools to go after bullying of all kinds.


I'd say a much lighter touch is appropriate. Which isn't to say that I object outright to a narrow species, say, Bullying, death resulting law considered at the state level -- depending on the elements that would give rise to such a prosecution.

Brian


PS

Tim Nuccio,

I guess that the Duke Lacrosse case ultimately went where it was supposed to go. It did similarly involve attempts to criminalize cadish behavior and reputation, if it collapsed because the underlying crime was not substantiated by credible evidence rather than because there was an attempt to make the crime fit the punishment rather than vice versa.
9.9.2009 10:39am
einhverfr (mail) (www):

However, 2 out of the three sides of lawyers in the courtroom ( judge and prosecutor ) fell down on the job, 'in the name of the law'. They happened to be the two sides with state power and state funding as well.


I am not entirely sure of this. It seems to me that the judge decided early on that the CFAA might potentially cover the act in question and never really changed his mind. Reading the discussion of the rule 29 decision suggests that he might have been willing to allow felony convictions to withstand a vagueness challenge.

It seems to me that the prosecutors, the defence attys and the judge all had VERY different ideas of what the law covered in a criminal context. All in all we will have to wait for another case before the appeals courts get to look at this. Another interesting factor is that the judge more or less accepted the prosecution's logic as to what differentiated Meier's ToS violations from those that Drew was accused of making, but concluded that the jury found Drew to be on the lawful side of that line.

All in all it is an interesting case and I am not entirely sure whether we won or not.
9.9.2009 12:52pm
Fub:
PeteP wrote at 9.9.2009 8:20am:
yes, and kudos to the defense counsel ( Orin et al ). However, 2 out of the three sides of lawyers in the courtroom ( judge and prosecutor ) fell down on the job, 'in the name of the law'. They happened to be the two sides with state power and state funding as well.

In this case 'two out of three ain't bad' does not apply.
Agreed on both points, but I think the second doesn't go far enough.

Definitely kudos to Orin et al.

But the lower court should have dismissed long before trial. The prosecutor (by virtue of being a government actor with extremely great discretionary power to disrupt ordinary citizens' lives on a whim) should be subject to equally extreme sanctions for bringing such a trumped up prosecution.

Any government that claims to value human liberty should jackslap more grandstanding prosecutors with prison time just like Nifong got, not fewer.

That's not the law, and not likely to become the law, but it should be. Government actors should live in far greater fear of consequences for even an arguable "honest mistake" than ordinary citizens do. Otherwise they become tyrants.
9.9.2009 1:14pm
Splunge:
Well now if I found people whose opinion I generally despised agreeing with me on some topic, I'd reconsider my opinion on that topic carefully.
9.9.2009 3:26pm
EH (mail):
There will never be an effective law against bullying.
9.9.2009 7:08pm

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