As has been widely reported, the Lori Drew/Myspace trial is over and the verdict is in. Guilty of three misdemeanors of intentionally accessing a computer in violation of the terms of service. Not guilty of one felony count of intentionally accessing a computer for the purpose of committing a criminal or tortious act, in this case intentional infliction of emotional distress. Orin Kerr at VC provides a short oversight of the verdict.
By definition, a misdemeanor carries a maximum sentence of one year incarceration. By guidelines and practice, this is likely to mean that Lori Drew will receive a sentence of probation, a split sentence at absolute worst. For those who hoped that this prosecution would serve as a substitute for a murder charge, this will be terribly unsatisfying, bordering on reducing this prosecution to a cynical joke.
While I’ve spent a fairly good amount of time following this case, I deliberately ignored the trial itself. For me, this was never about what Lori Drew did or did not do, but about what the government was doing to prosecute her. Distancing oneself from the particulars of any specific case provides a different perspective. That was the perspective that concerned me, rather than the outcome for Drew herself. As Dean Steward showed during the trial, she wasn’t as evil as she had been painted, which is reflected in the acquittal on the felony count, On the other hand, what she did to a 13 year old girl was still outrageous. She gets no sympathy from me.
Now that Judge George Wu has gotten his verdict, one that has left him with a mess on his hands of his own creation, the ball is back in his court. There were motions to dismiss the indictment, and then more briefs at his request, all of which produced nothing up to now. It bothersome when a judge demands that you drop everything to produce a brief in a few days, then fails to reach a timely decision. What was the need for such immediacy if he’s not going to return the favor by deciding?
The obvious retort is that a jury verdict of acquittal removes the burden from the judge’s shoulders of deciding hard issues. Hey, she’s not guilty, so there’s no need to decide with section 1030 of the Computer Fraud and Abuse Act should apply. It’s moot. It’s also an abdication of responsibility. We don’t pay judges to dodge hard questions, or ask a jury to do his dirty work.
So Judge Wu reserved decision. They jury only partially bailed him out, but by delivering the verdict it did, has provided a far cleaner and clearer palette for Judge Wu. The issue is now squarely before him, and it’s the issue that I, and those who have similarly questioned the government’s attempt to manipulate this case to fall within a law never even remotely intended for this set of circumstances, But it’s no longer about the government’s actions; It’s now about what the judge will do.
Gideon argued the other day, in response to Dan Solove’s question as to why Judge Wu fell down on the job, that the problem was intestinal fortitude. An apologist would argue that it’s judicial modesty, that it’s proper (and common) for a judge to avoid making rulings that may prove to be unnecessary. It is neither proper nor common, though it does happen with unfortunate frequency. The role of judge is to make rulings of law when issues are ripe for adjudication and presented for determination.
H. Dean Steward moved to dismiss. Issue was joined and fully briefed. Judge Wu sat on it, pushing the case to trial instead of doing his job. That subjected a defendant to a trial that could have been avoided in its entirety by a decision on a dispositive motion. This is an improper distribution of the relative burdens.
No person should be put on trial if the accusation against her fails to constitute a crime under the law. Trial is a nightmarish experience for any defendant, and that’s why a defendant moves to dismiss an indictment before trial, to avoid this experience if the allegations, even if proven, do not constitute a crime. It is a threshold issue, and it requires a threshold determination.
Judge Wu has now tried judicial roulette, to see if the jury would remove the heavy burden of deciding the reserved motions so he wouldn’t have to. He lost. I agree with Gideon that it’s past time for the judge to do his job. And having dropped the ball once, I hope he won’t do so again.
With so many people watching the case, and already way too many embarrassing moments for the legal system, it’s time for Judge Wu to earn his keep. Whether Lori Drew does probation makes little difference to most of us. Whether Judge Wu does his job is critical.
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As a retired prosecutor, I don’t say this lightly. This judge was wrong. I disagree more with his failure to rule. Pre-trial rulings can be right or wrong (quashing this indictment would have been right), but he gets paid to rule, so rule.
I can understand the motives of elected judges that fail to make difficult decisions, but there is no such excuse for a federal judge.
There have been a number of lawyers who practice in federal court who have been apologists for Judge Wu’s failure to rule, essentially arguing that “that’s how it’s done.” This is not what happens in any federal court I’ve been before, and even if it is the norm, then the lawyers ought to stand outside with torches and pitchforks. To say this is “how it’s done” is a terrible and unacceptable answer.
Interesting post. I have two comments:
1. You might be right that technically speaking Judge Wu did not render a decision on the lawyer’s “Motion to Dismiss,” but substantively – if we look at the overall picture – he most certainly did. And that decision was essentially to deny the motion. So you may be right in saying that he was “lazy” but I think the right interpretation is that he was not persuaded by the legal arguments of the motion.
2. I think he was right in substantively denying the motion. Regardless of how you try to spin it, Lori Drew’s action constituted the crime she was convicted of. You say “No person should be put on trial if the accusation against her fails to constitute a crime under the law.” This statement, however, seems unsubstantiated and contradicts the facts of this case. Not to sound condescending, let’s go back to the basics: In criminal law, there are two tests to determine if the accusation constitutes a crime: actus reus and mens rea. I simply do not see any valid explanation why her actions did not fulfill both requirements. We’re not talking about how wise or just or fair the accusation was – those are “policy” considerations (those can be saved for the law review articles which will be written about this case.) Defense attorney that I am, I still see no way around the fact that the actions she performed are prohibited by that law, and that she performed them with the required mental state.
You make two very thoughtful points. On point 1, you may be right, that I delude myself in thinking that he failed to rule when, by pushing the case to trial, he tacitly rules against the defense. Still, there’s a bone in my throat by his failure to deny the motion openly. If that’s his decision, then he should say so, say why, and move forward. And then, of course, I could argue why his ruling was error.
As to your second point, while the act and mental state are all that need to be proven, they need to meet the elements of the crime. I don’t believe they do. CFAA 1030 addresses computer hacking. She didn’t access the computer unlawfully unless the word “unlawfully” refers to their TOS which said that user must enter accurate personal information. That’s the rub. Do private terms of service create an obligation, the violation of which constitutes a crime. The law doesn’t express this requirement, and it is inconsistent with the purpose of the law to prevent hacking, not mere personal inaccuracies.
Secondly, she had no intent to harm MySpace, the theorectical victim of the act under 1030. Intent to harm a third party, unrelated to the act of computer access, is also unexpressed and contrary to the purpose of the law. This is why I believe that the indictment should have been dismissed, and that no crime was charged.
Of course, had Judge Wu ruled, we would be arguing a more concrete point, rather than trying to argue theories and assumptions.
While not a lawyer and as is often said, have no dog in the fight, I have been compelled to follow this case. When the initial charges were filed I found myself saying what an idiot the USDA was to enter them. He was grandstanding, pure and simple. Why else object to a bench trial? No way he could confuse the Judge like he did the jury. No common sense thought could suggest otherwise. That this judge bailed out doing his job by dismissing pre-trial is clear. That he bailed out not excluding the suicide is unquestioned. That he failed by not directing a verdict is certain. That he has waited more than 4 months to “sentence” Ms. Drew and possibly rule on other defense motions is an effort to let time do him the favor of lessening interest. That he will have a major reversal on his record is assured. Perhaps his judicial record before this case was stellar as has been suggested in several places. His track record on this one will tar him with another brush for many years to come.