Sunday, November 30, 2008

The Lori Drew Case and Prosecutorial Grandstanding

Reactions to the Lori Drew verdict seem to come primarily in two forms:
  • Lori Drew is such a horrible person that even if the law is bent to the point of breaking, or even if it sets a really bad precedent, the verdict should stand so that she is punished for her bad acts (see, e.g., news articles that cover the actual charges, yet still describe this as a "cyber-bullying case"); or

  • It's really bad public policy and a distortion of the law (18 USC § 1030) to criminalize the violation of a website's terms of service, even if you really want to punish the person who committed the violation. (i.e., "Bad facts make bad law.")

There's another side to this: If the verdict does not stand, and there's a good chance that it will not, the shameless grandstanding by U.S. Attorney Thomas P. O'Brien will have expanded the injustice. It will have given Megan Meier's family the false sense that Lori Drew would go to prison for crimes that should never have been charged. Oh, probably O'Brien will harrumph about how he was right, about how Drew is evil incarnate, and how either the trial court or appellate court has unreasonably second-guessed the good men and women of the jury. Such a reaction would be consistent with what this prosecution is about - the furtherance of Mr. O'Brien's personal and political goals.


Had Mr. O'Brien gone to MySpace and said, "I want to set an example for the nation by prosecuting somebody for violating your terms of service", what are the odds they would have picked this case? If they wished to go after people who create accounts to harass or annoy other users, there are people they can document as having created scores of fake accounts for that purpose. If they wished to go after the misconduct that most affects their bottom line, they would have directed Mr. O'Brien to professional spammers who create hundreds or thousands of fake MySpace accounts to spam MySpace users. You want evidence of MySpace's priorities? If you look at where MySpace expends its own money, it's in the pursuit of spammers.

Further, if MySpace were to go to Mr. O'Brien with it's latest stack of TOS violators - no doubt many thousands per day - and ask Mr. O'Brien to prosecute them, he would reject their proposal as ridiculously burdensome. Prior to seeing the opportunity to grandstand in the Lori Drew case, he most likely would have told them to pursue the violations by terminating accounts, or through the civil courts. Realistically, MySpace wouldn't have even asked.

Right now, Megan Meier's family would have the right to feel underserved by the legal system. Her local prosecutor didn't find that any crime was committed, and Missouri's federal prosecutor passed on the case. Mr. O'Brien was able to produce convictions only on a number of misdemeanors. Meier's mother is, predictably, calling for the maximum sentence, apparently out of recognition that this case is really about what happened to her daughter and not what was prosecuted - an offense against MySpace. Assuming that the sentencing occurs, and that the trial judge is not as interested in self-aggrandizement and grandstanding as Mr. O'Brien, her first disappointment will be that Ms. Drew's sentence is far more lenient. A bigger disappointment is probably forthcoming - If the trial court or appellate courts do their job, it is likely that Ms. Drew will end up having her convictions reversed.

Assuming the verdict is upheld, what's the lesson? That we'll see selective prosecution based upon the outcome to a third party, without regard to the magnitude of harm to the ostensible victim (the online service)? That we're going to be held to an absolute standard of knowing the current terms of service of every Internet service we use (hours of reading per day for an active Internet users), at risk of criminal prosecution if we violate those terms? Are we supposed to be reassured that, although far more egregious violations of the statute occur every minute of every day, that a federal prosecutor is not likely to act unless he gets an opportunity for self-aggrandizement? And the only cost is that an occasional, possibly unpleasant person will be dragged across the country for a show trial, at considerable public and private expense, principally for the benefit of that prosecutor? How... comforting.


  1. What's your "preferred" solution?

    This is a case where although the comment "bad facts make bad law" certainly applies, these are horrifically bad facts (an adult who deliberately targeted and repeatedly attacked a child resulting in the child's death) and I don't really see a good "legal" solution to the problem.

    I'm familiar with the FA slippery slope arguments. I realize that the first attack against the FA usually is that we "have to protect the children", but what this person did was evil . . . and if our legal system won't punishmnet, we shouldn't be overly surprised if someone else does . . .


  2. As you know, not all nasty people can be prosecuted, and not all nasty acts are crimes. Prosecutors are supposed to work within the system..

    My preferred solution is for a prosecutor to do his job, and seek to uphold the law as written. Not to reach across the country to prosecute somebody whose own state's U.S. Attorney had already passed on the case, and then to bend the law to (or, by all appearances, past) the point of breaking in order to score a conviction - not because of the egregiousness of the offense charged, but due to the consequences of the defendant's uncharged, non-criminal conduct against an entirely separate victim.

    If it's really important that the nasty conduct be prosecuted in the future, it's the job of the legislature to patch the hole in the law. Not the job of a prosecutor.

  3. But in this case, I'm not the prosecutor, I'm in the peanut gallery.

    Although on the law, with you I must concur. On the facts, I still hope she's in a car accident and dies a horrible and messy death.


  4. It would almost appear that the prosecution - or lack thereof - of these cases is far more dependent upon what the intended target does as a reaction, than it is of the actual actions taken by the perpetrator. So the moral of the story is "if you are going to be a nutter on the internet, be sure to choose a non-nutter target"? Good luck on that one!!

  5. "It would almost appear that the prosecution - or lack thereof - of these cases is far more dependent upon what the intended target does as a reaction, than it is of the actual actions taken by the perpetrator."

    To some extent, but that's always the case. If I push you and you get mad and push me back; then we both go home. Nothing for the law to do. If I push you, and you slip backwards, strike your head, and die. I'm looking at a criminal prosecution.

    I think my big hang-up in this case, is that we have an adult who is deliberately targeting a minor. What is more, she is doing it in a really "sneaky" way (pretending to be another minor). If it was two adults exchanging insults in (more or less) mutual intellectual combat and somebody commits suicide, "it's a tragedy" but it isn't a crime . . . or even "evil". But for an adult to deliberately lie to and try to hurt a child . . . I still think the woman should rot in hell.



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