Orin Kerr at Volokh Conspiracy alerts us to an update in the Lori Drew/Myspace case that has raised so many concerns, pointing to this AP story on Judge George Wu’s preliminary decision as to the scope of the upcoming trial.  Past discussion of this case can be found here, here, here, here, here, here and  here.  Yes, I’ve been following this case closely.

For those wondering what became of the motions, and supplemental briefing at Judge Wu’s request, the best answer available is the judge has reserved decision as the case moves forward, a process that I find to be peculiar at best since the decision could be dispositive, or perhaps provide significant parameters to the prosecution.  Why the court would push the case to trial while huge issues are pending is beyond me, elevating speed over substantive rights.  But that’s just me, and I’m not a federal judge.

However, yesterday’s court appearance was not a total waste of time, according to the AP.

U.S. District Judge George H. Wu told attorneys he was leaning toward excluding the evidence from the trial of Lori Drew, who is accused of using a fictitious profile on the social networking site to drive Megan Meier, her daughter’s former friend, to hang herself.

“I don’t necessarily think the suicide is relevant to the crime charged,” Wu said, adding he thought details of Meier’s death would unfairly prejudice the jury. He said he planned to announce his final decision Friday.

The court, again without finality, almost kinda made a ruling of monumental consequence.  If Judge Wu’s “final” decision come Friday stays the course, it will be a strong message that the government’s attempt to manipulate the Computer Fraud and Abuse Act to encompass Drew’s conduct that pushed Megan Meier to suicide will not be allowed.  Taking the suicide out of the case, and presumably Drew’s conduct toward Megan Meier that drove her to kill herself, will eviscerate the government’s emotional appeal and leave this case essentially pointless, as it should be.

The nature of the charges against Lori Drew, violating the terms of service of Myspace, do not bear upon the conduct toward, or the consequences to, Megan Meier.  While many want Drew punished for what she did to Megan, and these feelings are perfectly understandable, that’s not the case before the court.

But, but, but, you sputter.  Who cares about Myspace and its stupid terms of service.  Who cares that Lori Drew lied when she created an identity on Myspace, like about a zillion other people.  It’s what she did to Megan Meier that matters. 

Absolutely, which is why this case is so wrong.  Take Megan Meier out of the case, and the case means nothing.  It’s a joke.  It’s a ridiculous waste of time and effort, to prosecute someone for doing what millions of people do every day.  What normal people, like you, do every day.  Are you a criminal too?  Should you pack your bags for a vacation at Club Fed because you made yourself 10 years younger, 6 inches taller, a few shades blonder, a dozen IQ points smarter?  Without Megan Meier in the case, this is all it’s about.  Nothing.

An interesting sidebar to yesterday’s court appearance is that Drew’s attorney, H. Dean Steward, tried to make an end run around the problem.

On Wednesday, defense lawyer Dean Steward waived Drew’s right to a jury trial in an effort to have the case decided by a judge, not jurors. But prosecutors refused to agree with the defense waiver, which automatically resulted in a jury trial.

In federal court, Rule 23 of the Federal Rules of Criminal Procedure give the government the ability to veto the defendant’s decision to waive a jury and proceed with a bench trial.  I suspect that Steward, in light of the issues raised by Judge Wu as well as his preliminary ruling uttered yesterday, feels confident that the Judge will be best able to focus on the narrow charges levied against Drew under Section 1030 of the CFAA without being swayed by the highly prejudicial and irrelevant fact of Megan Meier’s suicide.

Not surprisingly, the government doesn’t want a bench trial, which would deprive it of the ability to seek conviction of Lori Drew for conduct that has no bearing on the crime charged.  After all, we wouldn’t want to thwart the government’s ability to use Section 1030 as a weapon to reach unrelated wrongs whenever a computer is involved.

Stay tuned.  Let’s see whether Judge Wu’s sticks to his guns.