Orin Kerr, a former federal prosecutor who joined the defense team as a pro bono attorney, says the verdict as it currently stands is problematic.
“Most individuals who use the internet violate terms of service,” he said, “and the government’s theory is that — at its discretion — it can bring prosecution in the world for any terms of service violation.”
But Kerr thinks there is little chance the 9th Circuit Court will uphold the verdict.
“The government’s theory is such a stretch (of the law),” he said, adding that “the law is on our side, and I would expect a court of appeals to recognize that. . . . If the court of appeals overturns this and rules that terms of service violations are not a crime, then you don’t have to worry about (being prosecuted) anymore.”
It’s possible, however, that the case might never reach appeal. Judge Wu, who presided over the case in the U.S. District Court in Los Angeles, is still entertaining a motion for direct acquittal, which was filed by Drew’s defense attorney H. Dean Steward after the prosecution rested its case more than a week ago.
Steward asked Wu for a judgment of acquittal based on the defense’s view that the prosecution failed to prove that Drew both knew the MySpace terms of service existed and that she knew what they said and intentionally violated them. Wu decided to postpone ruling on the motion — perhaps to see if the jurors would acquit Drew on their own — and still has not ruled on it. If Wu acquits Drew, the government would not be able to appeal his ruling.
If Wu decides to let the verdict stand, Kerr has said that he and Steward will appeal the case to the 9th Circuit Court of Appeals.
Lori Drew’s pathologically overaccentuated strive to emotionally overpower and devastate a child is an exaggeration of her own sadistic need to harm with the deliberate destruction of someone who was years and years a way from being her mental equal. The two sorry deviates who aided and abetted her in this tragedy is just as despicable if not more so.
Jilli,
I am in awe from your comments because I feel the same way you do over this horrible news. I can only hope that the 9th circuit court overturns this verdict and gives her what she deserves.
Lori Drew’s case holds a lot of lessons for a lot of people. It is about cyberbullying, which is behavior for which society has little tolerance. Cyberbullying is poison for anyone it touches. An institution like Myspace — or a library or a school, which provides patrons, students or guests access to the Internet — has plentiful incentive to stamp out cyberbullying within its system and its PCs. Regardless of how the law says it (through a misdemeanor criminal conviction or otherwise), the law has made clear it wants to find a way to punish anyone involved with cyberbullying. –Ben
Benjamin,
There’s a lesson to be learned and it’s parental guidance. This lady got off with a slap which is said. You can tell sometimes by looking at someone that they’re capable of doing such.
I believe that Lori Drew should get the full punishment that the law will allow. She as an adult know that most websites do carry Terms Of Service Violations. In fact most websites will have a box of Terms of Service that you usually have to check “I Agree” before you can proceed with signing up for the service. So to me that is just a lame excuse.
Cyberbullying is just a cowards way to hid behind a computer and bully a person anonymously rather than do it in person. People are truly affected by this and it really does cause a person mental harm. I think they should make an example out of Lori Drew to show future bully’s that want to do it in this manner that this is just not acceptable and if they do it and get caught..then they have to face the penalty.
It is a shame that if this verdict is acquitted the government will not appeal it. They are just going to let her get away with this crime and yes it is a crime. But if the ruling is upheld her attorney will be appealing it. If that doesn’t sound mixed up and backwards..then I do not know what does.
Great post Frank.
Julie
Lori Drew’s cyberbullying behavior was loathsome, despicable, and vile. But unfortunately, it was not illegal at the time she did it. And that’s the problem.
Part of the problem here is that IF this prosecution is successful, then literally anyone could be subject to the same criminal charges over something much less important. You could be hauled into court, forced to hire attorneys, lose your job, forced into bankruptcy, all because you sent an someone an email they didn’t like. Private companies cannot be allowed to establish standards of criminal behavior, that is what our legislature is for.
“It is a shame that if this verdict is acquitted the government will not appeal it.”
No, it’s not a shame. It’s the law of our land. Once a defendant is acquitted, the prosecution CANNOT appeal.
A couple of hundred years ago, some very wise folks got together and created a document we call the Constitution, which guarantees us some very important fundamental rights, including the right to bear arms, the right to complain about the government, and the right to fair treatment in court. These rights apply to everyone, even people you don’t like.
“They are just going to let her get away with this crime and yes it is a crime.”
No, unfortunately, it was NOT a crime. That’s the problem.
Should it be? Certainly! Legislation has now been passed outlawing her behavior, and if she did the same thing today, she could be prosecuted under that law. But that law did not exist when she did her malicious deeds, and we can’t allow laws to become retroactive.
Imagine getting arrested in 2008 for tax evasion because you failed to pay taxes that didn’t exist in 2006? Utter madness.
Our laws regarding bullying and abuse are out of date. This case will bring much needed attention to the subject of bullying, and hopefully inspire some much-needed improvements.
The prosecution in this case is in a no-win situation.
They can’t prosecute her for what she did that was really wrong, because it wasn’t a crime when she did it.
But they are facing unbelievable public pressure to do SOMETHING about this disgusting woman’s outrageous violation of a vulnerable child, so they have tried to come up with this terms of service violation. Unfortunately, it’s NOT a strong argument, and it is very unlikely to survive appeal.
My personal feeling is they might have been able to do more by pursuing the sexual connotations of this fake Myspace relationship, possibly pursuing her as a child predator, but I’m not privy to the evidence the prosecutors had to work with, so my opinion isn’t worth much.
Finally, don’t forget, that even if Lori Drew is acquitted of a crime, she is STILL subject to civil litigation, where the burden of proof is lower than in criminal trials.
Bill,
This is one of the best comments I have seen here at TechJaws.com in a long time. You nailed it perfectly and I appreciate the effort and time you put into this.