Regular readers may wonder why, after numerous posts on the evils of the Lori Drew prosecution, I haven’t been blogging my heart out (yes, I have a heart; it’s shown in a recent echocardiogram photo taken as proof) about the trial.  My problem is that the case is important because of its implications for the abuse of Section 1030 of the Computer Fraud and Abuse Act, not because Lori Drew is a person deserving of great sympathy.  She’s not.

As anticipated once Judge Wu decided to permit the government to introduce evidence about 13 year old Megan Meier’s suicide, the trial testimony is all about prejudicing the jury, clouding the issues and obtaining a guilty verdict because someone must pay for the harm done here.  As Gideon succinctly put it :

Why is Lori Drew so screwed?

Because almost all the testimony on the first day focused on Megan Meier’s suicide.

While others are reporting on the details of opening and witness testimony, it ignores the question of what this case is doing on trial at all, given its legal posture.  Once we get past the legal question, however, and taking testimony from witnesses at trial has nothing to do with legal questions, it is an entirely different case.  It is a case of adults conspiring to inflict harm on a child. 

The factual defense is that Lori Drew didn’t “pull the trigger,” her alleged words, that pushed Megan Meier to hang herself with a belt in her closet after being told that the world would be better off without her.  Ironically, those words were written by the government’s witness, another reminder that the most heinous people usually end up working for the government.  Birds of a feather, perhaps.

And the government has conceded that Drew never actually read the Myspace terms of service, the ones she is alleged to have knowingly violated.  Dan Solove at Co-Op wonders whether this concession will result in a directed verdict of acquittal.  If that were a serious question, he ought to wonder why Judge Wu reserved decision on pre-trial motions to dismiss, plus his requested additional briefs on a number of significant legal issues, while pushing forward with the trial.  A bold judge makes decisions in a timely manner; motions to dismiss are decided before trial, not afterward.  Not if they are to be taken seriously.

The cart is now way out in front of a whole team of horses, but if Judge Wu elected to dodge the legal issues up front that should have, in any legally sane world, been decided prior to trial, what rational theory would suggest that he’ll suddenly turn into superjudge and toss the case without taking a verdict?  Judge Wu wants the jury to do his work for him, and the jury’s work was irreparably tainted when he decided to let in the suicide testimony.

Perhaps Judge Wu wants to air this ugly mess out in public, allow those who have suffered the loss of a lovely young woman a catharsis.  Maybe he felt no desire to protect Lori Drew from the public shaming that comes naturally with this trial, and indeed saw the offering of testimony against her as a proper means of satisfying those base needs that would otherwise be overshadowed by the legal problems with the case. 

Judge Wu, after all the evidence has been offered, could then flex his judicial muscles and toss the case.  But it seems unlikely.  It would be an extreme plan, a scheme even, if that was the judge’s approach.  Judge’s have no business being so Machiavellian in approach, and there is nothing in Judge Wu’s background to suggest that he’s a schemer.

So here’s the trial in a nutshell.  

Prosecution:  Suicide, suicide, suicide; dead young woman because of Lori Drew.

Defense:  Didn’t read Terms of Service.

Which side will evoke a reaction in a jury of normal people?  There is no real factual dispute to be tried.  That’s why this case had no business going to trial.

Solove asks whether the CFAA will, in light of the testimony of the government’s witness that Drew never read the TOS, be held a strict liability statute.  This isn’t a question to be answered during, or after, a trial.  But if there’s a conviction, and it’s upheld, you can bet that everyone with a website of any sort, this blawg included, will start crafting some really fascinating terms of service so we can trap the unwary.

And no one using the internet will ever be safe again.