The prosecution of Lori Drew in the Myspace suicide case of Megan Meier was a test of the American system of criminal justice. It’s fitting on this Fourth of July to grade ourself. How did we do?
Well before the trial, the defense moved to dismiss the indictment, which charged Drew with violating the Computer Fraud and Abuse Act, 18 USC §1030, for creating a false Myspace account. While many found it impossible to divorce the disgust they felt toward Drew for her manipulation of a teenager, ultimately driven to commit suicide, the legal issues raised by the government’s imaginative use of the CFAA had disastrous implications.
Judge George Wu reserved decision on the motion. The case went to trial. Lori Drew was convicted of three misdemeanor counts of intentionally accessing a computer in violation of the terms of service. The motion to dismiss remained undecided.
On July 2nd, Drew was finally to be sentenced. She wasn’t. Instead, Judge Wu announced that he would be filing a written decision acquitting her of the charges, notwithstanding the verdict.U.S. District Judge George Wu said he was acquitting Lori Drew of misdemeanor counts of accessing computers without authorization but stressed the ruling was tentative until he issues it in writing. He noted the case of a judge who changed his mind after ruling.
She was convicted in November, but the judge said that if she is to be found guilty of illegally accessing computers, anyone who has ever violated the social networking site‘s terms of service would be guilty of a misdemeanor. That would be unconstitutional, he said.
“You could prosecute pretty much anyone who violated terms of service,” he said.
Some commentaries applaud Judge Wu’s decision, despite the widespread disgust with Lori Drew’s conduct on a moral level. I do as well. But I am less sanguine about its timing. As I wrote at the time of trial: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.
It’s good that Judge Wu has apparently reached the correct result. It’s not so good that a pre-trial motion to dismiss was left undecided while a defendant went to trial and verdict. Most notably, Judge Wu’s explanation for his decision, which will no doubt be fleshed out in loftier language when it appears all dolled up for the books, is what we’ve been saying since the day the indictment was announced. It was obvious to so very many all along. It was the subject of innumerable commentaries, article, discussions and rants. And yet it continued to go undecided while Lori Drew’s case was tried.
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.
Is all well that ends well? Certainly, it’s better to end well than end badly. But this is not a simple dance, engaging the government in the system, and it’s many moving parts are all supposed to work properly. It’s not sufficient that at the very end of the process, we finally obtain the result desired. Not for a system that is supposed to deal with the lives of real people.
This is where so many who are deeply concerned with the more existential aspects of law fall short. There are real lives involved in the process, and these lives are often destroyed by the process itself, regardless of outcome. Financial ruin was an “extraordinary evil” when done by Bernie Madoff. Is it better when done at the hands of the criminal justice system? The trauma of prosecution and trial is a nightmare, but it’s no less a nightmare when you find out after it’s completed that there was never a crime to begin with.
Judge George Wu, on the date he set to sentence Lori Drew, acquitted her instead. Perhaps this was his way of sentencing her to the hell of the criminal justice system, then ending it all at the very last second for the benefit of the rest of us? This too would be wrong, and I would not impute any secret motive to Judge Wu’s timing. But his timing sucks.
The decision ultimately reached is clearly the right one. It seemed painfully obvious to the rest of us that there could be no other correct decision. And indeed, as obvious as it sounds when said by Judge Wu is as obvious as it has been all along. So why didn’t Judge Wu do his job and decide the motion before letting all the wheels of justice grind?
This case was a test of the American criminal justice system. It was the right decision unduly delayed. First do the harm and then try to undo it. Despite our many platitudes, like justice delayed is justice denied, the saving grace of the Lori Drew acquittal is that too often, if not most often, we don’t even end up with the right decision, making it almost disingenuous to complain that it should have issued before putting Drew to the test of trial.
This case turns out to be one of the better ones for our system. And thus, it barely passes the test. Just barely.
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In NY at least, the criminal justice system is set up this way. No interlocutory appeals are allowed, unlike in civil cases, where you can appeal most anything, even discovery orders.
Then there are the statistics. Throw out an indictment and you have a 50% chance of being reversed. Doesn’t sound so bad, except that for a conviction the rate of reversal is about 2%.
So the chances of a DA winning an appeal are about 25 times higher than a criminal defendant’s. This message isn’t lost on trial level judges: side with the DA.
Judges are establishmentarians, and they favor establishmentarian litigants: the government, the insurance company, the bank, the big law firm.
The concern that we not put someone through a trial needlessly is well accepted in civil matters, which is why we have “accelerated judgment”. It is a measure of what we truly believe – not what we SAY we believe but what we REALLY believe – that we have stacked the deck the opposite way in criminal matters.
This is one big reason we have more people locked up in this country than any other country on earth, perhaps more per capita than any nation in history.
Summary judgment for criminal defendants. Probably a pipe dream, but it really ought to happen.
New York state courts have an “inspect and dismiss” motion, where a flawed indictment can be reviewed pre-trial. This doesn’t involve an appeal (nor did the Drew case, which makes your opening paragraph somewhat confusing). While dismissal is rarely granted, it shouldn’t be regularly granted if the prosecution does its job even moderately well.
But Drew was a special circumstance, and far more indicative of problems with federal law rather than state law, which is substantially more concrete in its definition of crimes. With the exception of “depraved indifference” crimes, which the Court of Appeals is finally getting around to addressing, most state court offenses are fairly clear on their face. Flowing from this, one would expect the odds to favor the prosecution, and judges are naturally inclined to follow the odds as well.
Well, look at it from the trial judge’s point of view.
Sure you can bring a motion for inspection and dismissal. If the trial court grants it, the DA can appeal and the chances of a reversal are 50%+.
If you deny it, the defendant cannot bring an interlocutory appeal. If he is acquitted at trial, there is nothing to appeal. If he is convicted, your ruling on the dismissal motion may get reviewed on appeal. Odds of reversal? Less than 2%.
Much less risky to deny, from a “will I get reversed?” point of view.
By contrast, take the typical civil PI case – small independent practitioner and individual plaintiff v. big firm and insurance company. You have a summary judgment motion in front of you. If you grant it, the Plaintiff can appeal, but so what? His chances on appeal are roughly the same as a criminal defendant’s, maybe even less.
If you deny it, the insurance company/big firm can appeal. Chances of reversal? Haven’t run the numbers on it, but I’ll estimate between 25-50%.
Odds heavily favor granting the big guy’s summary judgment motion.
How does it work in practice? Motions to dismiss indictments in criminal cases are almost never granted. Motions for summary judgment in favor of “big guys” in civil cases are in fact granted about 50% of the time, maybe more.
In other words, trial judges conduct themselves exactly in accordance with the anticipated reversal practices of the appellate courts, statistically speaking.
I can see why they don’t want interlocutory appeals in criminal cases. I mean, anyone familiar with the system knows what an administrative nightmare it would be.
But it would also be a disincentive to prosecutors against bringing weak or questionable cases, even though I’m sure they would prevail nearly all the time on an interlocutory appeal.
I guess what I’m saying is that the rule against interlocutory appeals in criminal cases is part of the reason Judge Wu behaved as he did. Taking it upon himself to acquit the Defendant carries an extremely high risk of reversal, relatively speaking.
It would be different if the defendant had opted for a bench trial, of course. But there is still an enormous amount of pressure to convict, even though you don’t need to worry about an appeal in the event of an acquittal.
Not that this excuses it, but in my experience Judge Wu defers decisions as a matter of course in civil matters as well. He doesn’t seem to like to pull the trigger.
That’s what I heard about him. As excuses go, it sucks. It’s the job of a judge to pull the trigger, if and WHEN appropriate.