Thursday, July 2, 2009

Being mean is not a crime - it's just mean

It's only been 7 months since Lori Drew was convicted by a jury of 3 misdemeanor counts of accessing a computer without authorization. This is the Myspace hoax case from Missouri where a 13 year-old girl committed suicide after being virtually dumped by a boy she had met online. Of course, the "boy" turned out to be a middle-aged woman, mother of the girl's former friend, and the woman's assistant. Remember that the state prosecutors in Missouri looked into the case but determined that even though they heartily disapproved of what Drew had done, her behavior did not actually violate any criminal statute.

So federal prosecutors swooped in and charged her with these cyber crimes that were written to criminalize various types of computer hacking. But the feds argued that because Drew made up a fake profile on Myspace, thereby violating the Myspace terms of service, she had illegally accessed the Myspace servers. It was a reckless, dangerous prosecution aimed only at punishing this one woman but that could potentially have had wide-spread consequences. The plain truth is that most of us probably violate the terms of service of many of the websites we visit, often without really realizing it. That conduct is not what the statutes Lori Drew was charged under were designed to criminalize.

Many people who followed the case believed all along that the judge always knew the prosecution could not result in conviction but was reluctant to have to bear the brunt of public anger if he let this cyber-bully off. So when the defense filed motions to dismiss, he hemmed and hawed. He let it go to a jury verdict. Then, when the verdicts finally came down last November, he took the defense motions for dismissal and judgment notwithstanding the verdict under advisement. It is totally within a judge's authority to set aside a jury's guilty verdict and enter his/her own judgment of acquittal. It seemed clear that Judge Wu knew he really did have to do this, but he just didn't want to.

Well, he finally set aside those convictions today. At least tentatively. (Seriously, Judge Wu, make a firm decision and stick with it! Stop pussy-footing around.)

This is the right thing to do. Judge Wu is absolutely correct to interpret the statute to exclude violating a website's terms of service. Lori Drew's conduct, while reprehensible and mean, was simply not criminal. The girl's parents can sue her in civil court. That was always the only court that ever should have had anything to do with this case.

So I applaud Judge Wu's decision. Tentatively. I'll save my full applause until he puts his decision in writing.


mikeb302000 said...

Yes, that is a fascinating case. I enjoy the ones where the question of shared responsibility comes up. This one was a bit of a stretch.

Do you think she should be liable in civil court, though? Ever since the first O.J. trial, I've never understood how that works. How can one be innocent in criminal court but guilty in civil?

S said...

The shared responsibility angle in this case works much better in civil court. I do think it is entirely appropriate for the girl's family to sue her civilly. Whether she should be found liable or not, I haven't really decided. As I understand it, Drew knew that the girl was on anti-depressants. I don't know if she knew that there were apparently suicide concerns.

Criminal court and civil court have totally different standards of proof and different legal concepts. In OJ's case, it's not at all inconsistent for a jury to say, well, the state didn't prove him guilty beyond a reasonable doubt, but the family did prove him responsible by a preponderance of the evidence. In Drew's case, the civil court theory wouldn't have anything to do with the ridiculous "illegal computer access" criminal theory.

Ken said...

Not everything immoral is illegal, nor should it be.

This was a very notorious case. The United States Attorney himself -- not an assistant, but the chief of an office of about 200 lawyers -- tried it personally, and reaped headlines as a result. (I was a prosecutor in that office for 6 years, and have been a defense attorney for 9 years since; as far as I know, that's the only time that has happened.) That, I think, suggests what the motivation might have been.

S said...

Thanks for the insight, Ken. It's always interesting to hear from people who know the actual people involved.

Bob S. said...


If there is shared responsibility, as you believe, does everyone who uses a computer share in that responsibility?


I would be very skeptical of anyone claiming not to know the risks of suicide increases when a person is on anti-depressants. That is one of the most common side affects.

I agree that not every thing should be a crime but I hope the parents of the girl sue in civil court and take her to the cleaners.
I was surprised that the prosecutors didn't try a stalking charge instead of a computer crime.

S said...

Bob, I think I wasn't entirely clear. Yes, I expect a lot of people have heard that there are increased correlation of suicide with anti-depressant use. In this particular case, though, I remember reading that there may have been a previous suicide attempt. That's specifically what I would want to know about for purposes of the civil suit.

I do believe a civil suit is pending. Drew has certainly suffered lots and lots of shame and bad publicity. She had her own photography business. I wonder if that is still operational. I would certainly guess it's not thriving.

The prosecutors in Missouri tried really hard to find a crime they could charge her with, but they just couldn't. If MO's stalking statute is like ours, it wouldn't fit because it requires conduct intended to cause fear for the stalkee's safety. They looked into the case for a year before deciding they couldn't charge anything, so I assume they considered as many statutes as they could think of.

Bob S. said...


Thanks for the clarification. I was wondering about the suicide bit.
I think the previous suicide would be at least known to the girl's friends and thus to the mom.

I didn't realize that stalking laws were that limited. I can see how the part of about "causing fear" would allow some stalking to go unchallenged, that is a shame.

mikeb302000 said...

Bob, Are you stalking me over here?

Bob S. said...


Nope, I enjoy reading this blog also. S has some good stuff.

I will challenge you when you make statements that I disagree with.

I think you have a double standard on your "shared responsibility" issue.

Care to address that? How is not a case of shared responsibility?

Are you saying the lady who posted the fake facebook page isn't responsible for the girl's death?

That you have no responsibility for this death? You own computers, you blog (a social networking interface like Facebook). You resist changes to the 1st amendment to make deaths like this impossible to happen.

So. Where is the shared responsibility?

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