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Judge Tentatively Dismisses Charges Against Lori Drew:

You may recall that this is the case in which our coblogger Orin Kerr (currently on leave from the blog because of his temporary government position) participated; he has written the leading law review article on the statute involved. Here's a brief excerpt from an L.A. Times blog:

A federal judge tentatively decided today to dismiss the case against a Missouri woman who had been convicted of computer fraud stemming from an Internet hoax that prompted a teenage girl to commit suicide.

Lori Drew of Dardenne Prairie, Mo., was convicted in November of three misdemeanor counts of illegally accessing a protected computer.

The decision by U.S. District Judge George H. Wu will not become final until his written ruling is filed, probably next week. Wu said he was concerned that if Drew was found guilty of violating the terms of service in using MySpace, anyone who violated the terms could be convicted of a crime....

Drew 50, was to be sentenced in May but Wu had delayed the sentencing until today, saying he wanted to consider the defense motion to dismiss the entire case.

A federal jury convicted Drew in November of the three misdemeanor charges but deadlocked on a felony conspiracy charge that would have carried a sentence of up to 20 years in prison....

Orin's detailed post on the subject -- from before he decided to work on the case -- is here; it's very much worth reading.

interruptus:
Good news for all banned Volokh Conspiracy commenters! Presumably they may now rest assured that violating the "Comment Policy" (see below) might result in their comments being deleted or their IPs being banned, but will not result in Prof. Volokh pressing computer-fraud charges.
7.2.2009 4:45pm
rick.felt:
Couldn't have happened to a nicer woman.
7.2.2009 4:50pm
Bill Poser (mail) (www):
This is clearly the correct decision. This is a case of a prosecutor attempting to punish awful but probably legal behavior using an inappropriate statute. What I find curious is that the judge took so long to reach this decision. Not only does it not seem like a decision that should have required extensive research and thought, but when the charge is improper, it is far better for it to be dismissed before trial. Why did the judge wait so long?
7.2.2009 4:54pm
eric (mail):
Judge probably thought the jury would take the heat off of him and acquit her.
7.2.2009 4:58pm
Zippy 'Ralph' Pinhead of ProfaneCrankyAlaska.us.gov:
Aw, nuts. Does this mean Professor Kerr's New [and improved] Terms of Use for the Volokh Conspiracy (follow link) won't be going into effect after all?
7.2.2009 5:02pm
Bill Poser (mail) (www):

Judge probably thought the jury would take the heat off of him and acquit her.


Why? There wasn't much doubt that she committed the acts alleged to be criminal, and she hardly comes off as likable. Do you think that the judge expected the jury to reject the applicability of the law?
7.2.2009 5:02pm
wfjag:
Interestingly, Prof. V, you failed to include the most appropriate of Kerr's postings on the list of related posts:


[Orin Kerr, May 15, 2008 at 7:06pm] Trackbacks
The MySpace Suicide Indictment -- And Why It Should Be Dismissed:

He nailed it at the outset.
7.2.2009 5:03pm
ruuffles (mail) (www):

Why did the judge wait so long?

[sing song]judicial activism[/sing song]
7.2.2009 5:03pm
Porkchop:

rick.felt:

Couldn't have happened to a nicer woman.


No, it could have happened to a nicer woman, but instead it happened to this one. :)
7.2.2009 5:15pm
Lior:
Could a lawyer here explain why the judge couldn't have done this at the beginning of the proceedings? After all the decision seem to turn on matters of law?
7.2.2009 5:15pm
David Wisniewski (mail):
Legally, the result was probably correct, but justice was by no means served.
7.2.2009 5:16pm
Ex-Fed (mail) (www):
Right legal result, benefiting an awful person.


Could a lawyer here explain why the judge couldn't have done this at the beginning of the proceedings? After all the decision seem to turn on matters of law?


Judge Wu is brilliant and a fine, fine man, and fair and decent besides.

However, occasionally his level of indecision makes Hamlet look like a pathologically impulsive tweaker on six cups of coffee.
7.2.2009 5:22pm
anon-congrats-to-orin (mail):
Not generally a big fan of the conspirators, but unconditional appreciation of Orin's efforts from me today.
7.2.2009 5:30pm
second history:
Wu-hoooo!
7.2.2009 5:53pm
einhverfr (mail) (www):
Congrats to Orin here too!

Lior:

Could a lawyer here explain why the judge couldn't have done this at the beginning of the proceedings? After all the decision seem to turn on matters of law?


IANAL, but my understanding is that if the judge rules this way NOW, the appeals court can review the case, and if necessary, re-instate the conviction. If he ruled this way before the verdict, it might be harder for the appellate court to overturn his ruling.

However, the fact that this took six months to decide from the verdict is..... strange.....

What I am troubled by is the rush to pass cyberbullying laws without regard to legitimate first amendment concerns in the wake of this case, though.
7.2.2009 5:54pm
PLR:
IANAL, but my understanding is that if the judge rules this way NOW, the appeals court can review the case, and if necessary, re-instate the conviction.
Admitting that you are anal is an important first step. Best wishes.
7.2.2009 6:02pm
ShelbyC:

What I am troubled by is the rush to pass cyberbullying laws without regard to legitimate first amendment concerns in the wake of this case, though.


Don't you care about the children?
7.2.2009 6:07pm
Curt Fischer:
Congratulations to Orin and his collaborators on the Drew case! I'm sad Orin isn't around to gloat today, though.
7.2.2009 6:12pm
Penrod:
If the criminal case is indeed over, let us hope that Drew at least gets socked with a civil judgment so large she will never again own any nonexempt assets.
7.2.2009 6:30pm
Bill Poser (mail) (www):

If the criminal case is indeed over, let us hope that Drew at least gets socked with a civil judgment so large she will never again own any nonexempt assets.


Indeed, this suggests an additional downside to the criminal proceeding against her: the money that she has spent on her defense is money that could go to the Meirs in a civil judgment.
7.2.2009 7:44pm
einhverfr (mail) (www):
ShelbyC:

Don't you care about the children?


Absolutely. I want them to grow up in a free country ruled by laws rather than by men.

Isn't that what this is about? ;-)
7.2.2009 7:50pm
More Importantly . . .:

Don't you care about the children?


No. If one is that unstable, Darwin awaits.
7.2.2009 8:40pm
Laura(southernxyl) (mail) (www):
"Don't you care about the children?

No. If one is that unstable, Darwin awaits."

"Unstable" pretty much describes a 13-yr-old girl. You don't have any daughters, do you?
7.2.2009 10:03pm
einhverfr (mail) (www):
Laura:

"Unstable" pretty much describes a 13-yr-old girl. You don't have any daughters, do you?


It is not that I disagree with you as far as you go, but it seems to me that once one starts down the road of saying that "she committed suicide, so the behavior that led to it MUST be criminal" then we depart fundamentally from the ideas of rule of law and free society.

I think the line on criminal sanctions for cyberbullying ought to be drawn at the point where the behavior continues after the victim tries to cut off contact. In the case where one is duped into a point where hurtful words are exchanged, there is no crime if the victim continues to remain in the situation by his/her own decisions. Otherwise we gut the first and fourth amendments.
7.3.2009 2:05am
Owen Hutchins (mail):

If the criminal case is indeed over, let us hope that Drew at least gets socked with a civil judgment so large she will never again own any nonexempt assets.



So if instead of committing suicide, the girl had gone into school and shot a bunch of students, you'd blame this woman for that, too?
7.3.2009 6:46am
Mr L (mail):
Indeed, this suggests an additional downside to the criminal proceeding against her: the money that she has spent on her defense is money that could go to the Meirs in a civil judgment.

Considering that Tina Meier is arguably as responsible as Lori Drew for Megan's suicide I really don't see a problem with this. Not that the Drews had much in the way of assets, anyway.
7.3.2009 9:46am
Laura(southernxyl) (mail) (www):

It is not that I disagree with you as far as you go, but it seems to me that once one starts down the road of saying that "she committed suicide, so the behavior that led to it MUST be criminal" then we depart fundamentally from the ideas of rule of law and free society.


I don't think we're saying that any behavior leading to suicide must be criminal. If Drew had said "stay away from my daughter you little bitch" and Megan had committed suicide, we wouldn't be having this conversation. Drew took action over a period of time, action that required some effort on her part, to inflict as much emotional suffering as she could on an immature child. There is no civil right that I want to have that is protected by allowing this.


I think the line on criminal sanctions for cyberbullying ought to be drawn at the point where the behavior continues after the victim tries to cut off contact. In the case where one is duped into a point where hurtful words are exchanged, there is no crime if the victim continues to remain in the situation by his/her own decisions. Otherwise we gut the first and fourth amendments.


The problem with what you say is that it is entirely applicable to adults. It absolutely is not to 13-year-olds. You can't really expect a 13-year-old to act the way you would in a given situation. You wouldn't act the way a 13-year-old would, would you? Do you swoon over boy bands and paint your toenails pink and purple? Look at Romeo and Juliet, for pete's sake - the story wouldn't have worked if it had been about 40-yr-olds.
7.3.2009 9:56am
einhverfr (mail) (www):

I don't think we're saying that any behavior leading to suicide must be criminal. If Drew had said "stay away from my daughter you little bitch" and Megan had committed suicide, we wouldn't be having this conversation. Drew took action over a period of time, action that required some effort on her part, to inflict as much emotional suffering as she could on an immature child. There is no civil right that I want to have that is protected by allowing this.


As I said, appropriate for a civil suit (intentional inflection of emotional distress), not a criminal case.

Also it is not as if Drew told Megan, "The world would be better off without you." According to trial testimony, Ashley Grills admitted to what are arguably the most cruel parts of the hoax. But although both were adults, the older one goes to jail just because of some ideas of command responsibility?



The problem with what you say is that it is entirely applicable to adults. It absolutely is not to 13-year-olds. You can't really expect a 13-year-old to act the way you would in a given situation. You wouldn't act the way a 13-year-old would, would you? Do you swoon over boy bands and paint your toenails pink and purple? Look at Romeo and Juliet, for pete's sake - the story wouldn't have worked if it had been about 40-yr-olds.


Yet, I have yet to hear the same concern about Ms Grills behavior (sending the most cruel of the messages). Ms Grills was an adult at the time too. But evidently you think the law should go harder on Drew just because she was 40 and Grills was 18?
7.3.2009 11:50am
Owen H. (mail):
I think even civil suits for this kind of thing would lead down a very scary path. How about a jilted lover killing themselves? I just can't see allowing "wrongful death" to include being mean to someone, even this mean, even to a child.
7.3.2009 12:03pm
einhverfr (mail) (www):
Owen H:

I think even civil suits for this kind of thing would lead down a very scary path. How about a jilted lover killing themselves? I just can't see allowing "wrongful death" to include being mean to someone, even this mean, even to a child.


Umm.... I was thinking primarily of intentional infliction of emotional distress, which has many of these problems but has a well defined body of law limiting these problems. After all, that is what is the substance of the accusations, right? That Drew masterminded a plan to cause emotional distress to Meier, right?

These aren't problems our courts haven't been dealing with for a long time. However, I am not at all sure which way a jury would rule in a civil case given the fact that they acquitted her of the tortuous side of this in criminal court. I suspect that the Meier family would find such judgements to be unsatisfying because Drew's finding would be made less severe by Grill's admissions, and Grills would be hard to prosecute because she was only 18 at the time.
7.3.2009 12:35pm
Laura(southernxyl) (mail) (www):
"Ashley Grills admitted to what are arguably the most cruel parts of the hoax. But although both were adults, the older one goes to jail just because of some ideas of command responsibility?"

There is some precedent for "command responsibility" as you call it. But mainly, this thing is about Lori Drew and what happens to her. Throw the book at Grills too, I won't stop you.
7.3.2009 4:20pm
JohnKT (mail):
Whew. Congrats to Orin Kerr for his work, and my gratitude to Judge Wu.

The news says the prosecutor, O'Brien, may appeal Judge Wu's decision, so I'm still waiting and seeing.
7.3.2009 4:21pm
AyaK:
I'm glad that the judge overturned the conviction, since it was based on such an amateurish legal theory (violation of terms of service).

Other than that, there is nothing to be glad about in this case. An evil person walks and goes on TV to brag about her innocence, although her actions were the opposite of innocent. Some posters here seem unaware of the long-standing rule of a principal being liable for the acts of her agent (such as an employee) and argue that this evil person should also have no civil liability.

As to why the judge didn't rule prior to the conviction, when the fallacies in the legal theory were so obvious? An old legal maxim: hard cases make bad law. Lori Drew is a reprehensible person. Who would want to acquit her of her bad acts?

As I said, I'm glad for the judge's ruling, but I wouldn't have minded if Drew had served her entire term in prison before he made it.
7.4.2009 1:24am
RobbL:
Let's spare a moment for the jury. Too bad they can't sue the judge for the theft of their time and lost wages. I lost three days pay last month on a jury. I would have been pissed had the judge said "never mind".
7.4.2009 2:29pm
einhverfr (mail) (www):
Laura:


There is some precedent for "command responsibility" as you call it. But mainly, this thing is about Lori Drew and what happens to her. Throw the book at Grills too, I won't stop you.


Well, you missed my point.... Command Responsibility, properly called, only exists where one is directly in control of another's actions and generally fails to discipline where appropriate. This usually comes up in war crimes trials because failure to punish war crimes can make commanders accessories to those crimes.

However, this case is very different. If Lori was not a conspirator (jury acquitted her of those charges except one that they deadlocked on), and if she did not seek to use this sort of account specifically to cause emotional harm to Megan (jury flat-out acquitted her of all charges here), then I can't see how one could hold her responsible MERELY due to her age made her somehow in control of the others involved.
7.4.2009 4:25pm
einhverfr (mail) (www):
AyaK:

Some posters here seem unaware of the long-standing rule of a principal being liable for the acts of her agent (such as an employee) and argue that this evil person should also have no civil liability.


Sure. Of course in this case, the question is whether Ms Grills was acting specifically as Drew's agent, whether the discussions were merely brainstorming sessions, etc. and whether Drew can rightly be called a conspirator in these cases.

I do not think that simplistic arguments over liability get one very far esp. since the jury acquitted Drew of the felony charges (breaking in to the computer with a tortuous intent). I am not at all sure that agency/principle relationship here is strong enough.
7.4.2009 4:30pm
einhverfr (mail) (www):
(The issue in a civil suit would seem to my mind to center around whether Drew at any time intended specifically to cause severe emotional distress. If so, then the actions of Grills could generate liability for her. If not, then I would expect Grills to be solely responsible for her own actions.)
7.4.2009 4:32pm
Philistine (mail):

Could a lawyer here explain why the judge couldn't have done this at the beginning of the proceedings? After all the decision seem to turn on matters of law?



Presumably, the judge wanted to see what the jury would do--if they acquitted (as they did on the felony count), then he didn't need to make a thorny legal decision, and the case would not be appealable.

A pretrial dismissal would have guaranteed an appeal by the prosecution.

Criminal motions to dismiss are considerably more infrequently granted than civil ones, as double jeopardy prevents an appeal of an acquittal, so judges tend to let cases go the jury more.
7.6.2009 12:41pm

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