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.
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.
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- Lori Drew Hearing Update:
- Government Reply in Lori Drew Case:...
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This is me, tipping my hat, to you -- as a practicing lawyer to another.
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.
Of course, you have to say that, because the motion is still in front of him. :-)
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.
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.
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.
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.
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.
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.
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