The Volokh Conspiracy

[Orin Kerr, November 20, 2008 at 1:53pm] Trackbacks

Drew Update:

Kim Zetter has the latest on the Lori Drew trial over at Wired's Threat Level Blog.

Lior:

I still can't get over this. In a trial about whether defendant violated the terms-of-service of a website, the first witness called has no relevant information on the website or the terms-of-service. I guess this is where they are establishing that goal the unauthorized access was the infliction of a tort. Even then, since whether the tort actually took place is not relevant to the criminal statute, I'm not sure why establishing that emotional distress was caused is relevant.

PS: Is the jury supposed to resolve the legal question of whether what happened rises to the level of a federal felony?

11.20.2008 2:37pm

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xyzzy:

Lior,

If the jury believes Lori Drew is lying under oath about her participation, then I think the jury is also entitled to believe that she's lying about whether or not she read the MySpace terms of service or knew she was accessing computers in California.

Never mind the establishment of the IIED, Ms Prouty's testimony is simplifying the issues for the jury: ”Who's telling the truth? And who's lying?”

The flat fact of the matter is, Lori Drew wouldn't have been charged in federal court in Los Angeles without a dead girl's body. And, most likely —let's be honest— a dead white girl's body. No matter how many times the judge or the prosecutor or the defense tells them that this isn't a homicide case, there's some small chance the jury will have enough common sense to see the obvious.

But if the jury deliberates on whether or not Lori Drew lied under oath, well...

11.20.2008 3:13pm

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Alligator:

After jurors were escorted from the courtroom, Steward asked for a mistrial. Wu denied the request, and told Steward that if he'd found Meier's testimony objectionable, then he could have objected to it at the time. "I would have sustained [those objections]," he said.

Ouch. How would you cross-examine Tina Meier without making the jurors think you're attacking this poor woman who lost her daughter? It seems like the only relevant part was her testimony that Lori Drew knew of Megan's mental problems, but the rest is so prejudicial I don't think it can be ignored.

11.20.2008 3:14pm

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Fub:

Alligator wrote at 11.20.2008 3:14pm:

Ouch. How would you cross-examine Tina Meier without making the jurors think you're attacking this poor woman who lost her daughter?

There is now an update reflecting cross examination, at the link Prof. Kerr provided above.

11.20.2008 3:44pm

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random 3L:

After jurors were escorted from the courtroom, Steward asked for a mistrial. Wu denied the request, and told Steward that if he'd found Meier's testimony objectionable, then he could have objected to it at the time. "I would have sustained [those objections]," he said.

The potential lesson for trial court practice I take from this: object on direct. It may come off as hostile towards the exceedingly sympathetic witness, but it's got to be easier than appearing to badger the same witness on cross. And is prejudicial testimony ever going to be sufficient to get a mistrial?

(I mean this in terms of a tactical lesson. The strategy of the defense is something much, much deeper that I don't presume to know or criticize.)

11.20.2008 3:49pm

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man from mars:

People who believe the verdict will be overturned on appeal due to the prejudicial evidence just aren't familiar with Rule 403 jurisprudence. Appellate courts just don't overturn trial courts based on these kinds of Rule 403 violations.

It is possible the verdict will be overturned on vagueness or overbreadth theories - but very, very few appellate courts overturn convictions of unpopular defendants any more. (Look at the laughable Skilling trial).

That so many people take seriously the prosecution's theory that violation of MySpace terms of service is a federal felony marks a watershed in the country's approach to the rule of law.

Like the banking system, the legal system has become nothing more than a tool to punish the unpopular and reward the more popular.

11.20.2008 5:31pm

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Fub:

xyzzy wrote at 11.20.2008 3:13pm:

The flat fact of the matter is, Lori Drew wouldn't have been charged in federal court in Los Angeles without a dead girl's body. And, most likely —let's be honest— a dead white girl's body. No matter how many times the judge or the prosecutor or the defense tells them that this isn't a homicide case, there's some small chance the jury will have enough common sense to see the obvious.

Defense did ring a bell to the jury that might be difficult for prosecution to unring (from the afternoon update at the Wired link above):

Steward's point: by lying about her age, Megan herself had committed the same terms-of-service violation that Drew is now facing felony prosecution over. He introduced this theme earlier in his cross examination, asking Meier if she'd read MySpace's contract before allowing Megan to establish the MySpace profile through which she befriended "Josh." MySpace doesn't allow users under the age of 14.

Meier answered that she had read every word, even though it took some 25 minutes. She once worked for a law firm, she said, and had learned to read any contract carefully before agreeing to it. In this case, Meier saw no harm in letting Megan sign up while only 13, because she'd be turning 14 in about a month-and-a-half.

Whether prosecution will attempt to minimize any jury doubt about the fairness of the prosecution based on their perceptions of this fact, or not, will be interesting.

Explaining why Drew is prosecuted but Meier is not will tend to emphasize the fairness question. Disregarding it risks that the jury will wonder both about fairness and to some extent whether Meier is telling the truth now, since she admitted that she rationalized and ratified lying.

11.20.2008 6:22pm

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xyzzy:

That so many people take seriously the prosecution's theory that violation of MySpace terms of service is a federal felony marks a watershed in the country's approach to the rule of law.

Today, the ABA Journal links to a Jacksonville, Florida story about another, unrelated crime on the 'net. Local news reports:

A former law student was recently arrested, accused of creating a bogus e-mail to get a former law professor in trouble.

[...]

Investigators went through computer records and found that Green had created the e-mail address Jorgensen672@aol.com while she was working for a Southside law firm.

I'm not sure what the Florida charges are here, but there's a deeper question: Would it be fundamentally fair to hale this girl, Laurie Green, off to the Eastern District of Virginia, where it's well-known that AOL's servers are located? Are federal prosecutors even considering that course?

In general, when someone crosses state lines to commit a crime against property located in another state, then we usually think it's fair to hale the accused off to that state to face trial. But part of that sense of fairness
stems from the ordinary situations people find themselves in. People usually know what state they're in, and directing action into other states —especially non-adjacent states— ordinarily requires an intentional act.

But, in the internet context, is it fundamentally fair to turn a crime against a person in the same state into a property crime in a distant state? On the theory that a breach-of-contract amounts to a criminally unauthorized act?

Is it fundamentally fair to hale someone off to a court hundreds or thousands of miles away to face trial on a pretended offense?

That, it seems to me, was a cause of revolution.

11.21.2008 12:02pm

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Fub:

xyzzy wrote at 11.21.2008 12:02pm:

Is it fundamentally fair to hale someone off to a court hundreds or thousands of miles away to face trial on a pretended offense?

That, it seems to me, was a cause of revolution.

Although it's not a legal issue, a textual literalist would disagree for fairly obvious reasons, if the cause of revolution you're referring to is: