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.

"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.

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

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.

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.

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.

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?

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.

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.

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?

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 :)

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?

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.

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.

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.

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?

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.

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.