Lori Drew's Convictions Will Be Vacated

By TChris, Section Court Decisions
Posted on Fri Jul 03, 2009 at 12:29:41 PM EST
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These posts about the prosecution of Lori Drew sparked considerable controversy among our commenters. Drew participated in creating the bogus MySpace profile of a 16-year-old boy so she could learn whether a 13-year-old girl who lived nearby was spreading rumors about Drew's daughter. The fictitious boy expressed interest in the girl before later sending her a message -- "the world would be a better place without you" -- that triggered the girl's suicide.

The posts criticized Thomas O'Brien, the grandstanding U.S. Attorney in Los Angeles, who made it his mission to prosecute Drew (a resident of Missouri) for computer fraud. Apart from his dubious attempt to stretch the concept of fraud to include lies told on a MySpace profile, and his unseemly eagerness to charge a crime that allegedly occurred far from Los Angeles (and that wasn't being charged by the U.S. Attorney in Drew's district), O'Brien failed to persuade the jury that Drew created the fake profile to inflict emotional distress on the girl -- and was apparently surprised when his star witness contradicted that claim. To save face after failing to secure felony convictions, O'Brien bragged about the misdemeanor convictions the jury returned for Drew's alleged "unauthorized access" to MySpace.

Drew was scheduled to be sentenced yesterday. She wasn't. Instead, the judge threw out the misdemeanor convictions after correctly concluding that violating MySpace's terms of service agreement didn't constitute unauthorized access. So much for O'Brien's proud victory. [more ...]

The question raised by this prosecution (and in the TalkLeft posts) isn't whether Lori Drew acted appropriately. Her immature desire to spy on a neighboring child on behalf of her daughter apparently evolved into a malicious desire to wound the girl with a venomous message. Some of our readers considered her behavior monstrous; none held her faultless. According to her lawyer, Drew had to leave Missouri because she became “an internet punching bag for almost three years” having been “tried, convicted and lynched by bloggers.” While some commenters to my previous writings about Drew's case would have been happy with a blog lynching, Drew's character and the morality of her conduct were not the subject of my posts. Feel free to attend lynchings at other blogs.

Nor was the question whether the vague notion of "cyber-bullying" should be a federal or state crime. The difficulty of drafting a "cyber-bullying" law that punishes speech raises significant First Amendment questions. While that issue is worthy of extended discussion, it is beyond the scope of my posts.

The posts instead focused on O'Brien's willingness to punish "cyber-bullying" by charging Drew with computer crimes that have nothing to do with bullying. "Unauthorized access" to a computer generally refers to hacking, password theft, or other means of accessing data on a computer without the permission of the computer's owner. As Judge George Wu ruled, it doesn't mean telling a lie on a MySpace profile.

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.”

Judge Wu's ruling generated this startling response from O'Brien:

"We call it cyber-bullying and we don't have a law to address it," he said at a news conference.

That's exactly the point. O'Brien charged Drew with a crime she didn't commit by giving a "novel" interpretation to a statute that just didn't apply to Drew's conduct -- all because he wanted to punish her for bad acts that "we don't have a law to address." It's up to legislatures, not prosecutors, to create new laws to address novel situations.

O'Brien still refuses to acknowledge how reprehensible his conduct was.

“I’m proud of this case …. and this team [of prosecutors],” he said, even though using the CFAA to prosecute Drew “was a risk.” He added that his office “will always take risks on behalf of children.”

The "risk" was that Drew would be convicted of a crime she didn't commit. However important might be the need to protect children from "cyber-bullying," O'Brien risked offending the Constitution by seeking punishment for a nonexistent crime.

The prosecution was nonetheless applauded by many of our commenters. They shared the belief that Drew's bad behavior deserves punishment and brushed aside the inconvenient fact that Drew didn't actually commit a crime. We can't sacrifice the Constitution to protect children any more than we can sacrifice the Constitution to protect the nation from terrorism. Our pride in being a nation of laws depends upon our willingness to respect the law, not to pervert the law to satisfy our immediate desire for safety or punishment.

Whatever you think of Drew, Judge Wu did the right thing.

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Lori Drew's Convictions Will Be Vacated | 21 comments (21 topical)

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Should never have been (5.00 / 1) (#5)
by Cards In 4 on Fri Jul 03, 2009 at 03:50:03 PM EST

prosecuted. Not everything that is wrong is or should be illegal.

John Marshall (none / 0) (#1)
by andgarden on Fri Jul 03, 2009 at 12:43:24 PM EST

To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous indeed to carry the principle that a case which is within the reason or mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute because it is of equal atrocity or of kindred character with those which are enumerated.

Lynch Mob (none / 0) (#2)
by squeaky on Fri Jul 03, 2009 at 12:56:48 PM EST

Of course O'Brian is proud, he is sucking up to the lynch mob, aka popular sentiment, aka votes. Yes he is a US attorney whose popularity reflects well on the elected officials he serves at the pleasure of. He is also proud of the Charles Lynch sentence which he sought clarification on from Obama DOJ and concurred that Judge Wu should go for it as Lynch was a criminal.

He should be fired, imo, along with all most of the GWB appointees.

Submit this as an OpEd? (none / 0) (#3)
by jerry on Fri Jul 03, 2009 at 01:05:09 PM EST

This was a terrific post. I think you should try and get it (or similar) published as an NYTimes (or submit an important paper or website) Op Ed. (HuffPo? Comment is Free? WaPo? WSJ? ...?)

I admit I want Lori Drew punished (none / 0) (#4)
by Fabian on Fri Jul 03, 2009 at 03:05:18 PM EST

but I won't insist on legal punishment. Being socially ostracized, being gossiped about, being portrayed as malicious, venal and irresponsible for the rest of her life is fine with me.

So long as it doesn't break any laws, of course. Many things are perfectly legal, even if they are unethical and amoral.

So, it isn't enough (5.00 / 1) (#7)
by Matt v on Fri Jul 03, 2009 at 04:38:01 PM EST

that a power-hungry, unethical prosecutor persecutes a woman for something that a jury of her peers - and ultimately the Court itself - says she not guilty of, you would have her pay for the non-offense for the rest of her life...

It's exactly this slop of illogical, self-important thinking that comprises the modern American gesundes Volksempfinden (healthy folk sentiment) that Volksgerichtshof Verfolger (People's Court Prosecutor) Herr O'Brien depends upon to fuel his and his kind's careers.

But, sadly, you can not see that.


: they didn't say (none / 0) (#11)
by cpinva on Sat Jul 04, 2009 at 12:31:56 AM EST

says she not guilty of,
she was innocent, merely not guilty of the specific charge. there's no question whatever (the evidence speaks for itself) that she was guilty of pushing an emotionally vulnerable 13 year-old girl over the edge, by her actions.
that this doesn't seem to constitute an actual criminal offense displays yet another weakness in our legal system, not that ms. drew is innocent. she isn't.
that you fail to distinguish between the two demonstrates your intellectual vacuuity.

Why is it? (none / 0) (#6)
by jbindc on Fri Jul 03, 2009 at 03:53:44 PM EST

You do not have a First Amendment right to stand in my face and bully me and threaten me - if I fear for my safety, then that is (at least civilly, and possibly criminally in some jurisdictions) an assault. Why is it ok to do it behind the anonymity of the internet?

I don't think O'Brien was acting "reprehensibly" - I think our legislators need to catch up with technology and this kinds of case will bring it to the forefront.

I hope this woman is ostracized - boo hoo for her that people treated her badly and she had to move. I hope people continue to treat her badly and ostracize her wherever she goes.

Even after (5.00 / 1) (#8)
by Matt v on Fri Jul 03, 2009 at 04:52:33 PM EST

"O'Brien failed to persuade the jury that Drew created the fake profile to inflict emotional distress on the girl -- and was apparently surprised when his star witness contradicted that claim"?

Well, so much for jury trials...


The argument was (none / 0) (#12)
by jbindc on Sat Jul 04, 2009 at 07:17:39 AM EST

"This woman should never have been prosecuted because she has a First Amendment right to say those things in cyber-space."

No, she doesn't.


: What argument? (none / 0) (#16)
by TChris on Sat Jul 04, 2009 at 08:44:42 PM EST

Whether the First Amendment protects an individual from prosecution for saying what Drew said is not a question that has a clear answer. The argument in my post (as the post makes clear) has nothing to do with the First Amendment. My post argues that she should never have been prosecuted because she didn't commit the crime for which she was prosecuted.

Well said! (none / 0) (#9)
by cymro on Fri Jul 03, 2009 at 04:56:08 PM EST

We can't sacrifice the Constitution to protect children any more than we can sacrifice the Constitution to protect the nation from terrorism. Our pride in being a nation of laws depends upon our willingness to respect the law, not to pervert the law to satisfy our immediate desire for safety or punishment.

I agree with jerry's comment that the arguments you present in this post would make a first rate editorial column in any major newspaper. Your explanation reminded me of the importance of defending freedom of speech, captured in the famous phrase "I disapprove of what you say, but I will defend to the death your right to say it," used by Evelyn Beatrice Hall to illustrate Voltaire's beliefs.

the last time i checked, (none / 0) (#13)
by cpinva on Sat Jul 04, 2009 at 05:46:35 PM EST

the 1st amendment is no bar to being prosecuted for yelling "fire", in a crowded theatre, where there is no fire, and people are injured/killed as a consequence.

based on the evidence, ms. drew very clearly crossed the line, from protected activity (making up a a screen name to see what the girl was saying about her son), to unprotected activity (harassing and abusing the girl, via the internet), see: yelling fire, crowded theatre, no actual fire, people hurt as a result.

that the state did a poor job convincing this jury makes her actions no less heinous, or her innocent, any more so than a jury finding O.J. not guilty did.


: Quite A Leap (none / 0) (#14)
by squeaky on Sat Jul 04, 2009 at 05:56:34 PM EST

Teen suicide same as someone yelling fire... wow.
Hope that your postings do not send anyone over the edge, because according to your logic you would be legally responsible for any harm other people may do after reading your words.

Judge Wu's uling is correct (none / 0) (#10)
by Manuel on Fri Jul 03, 2009 at 08:04:38 PM EST

But that doesn't mean the decision to prosecute was incorect or inmoral. If this case serves to highlight the need for new and clearer federal and/or state laws to address an obvious problem then a public good has been advanced. Didn't the victim in this case deserve her day in court? I don't see why a prosecutor should be castigated for following his conscience or why anyone would expect repentance. Wasn't he just doing his job as he saw it? If O'Brien has done something that is illegal or unethical aren't there avenues to go after him? The worst that can be said is that he made an error in judgement, an error I can see myseleft making were I in his place.

Were I in the victim's parents place, I would have felt vindicated by the original guilty veredict and would view this decision as the letter of the law not always delivering justice.

Wrong. (5.00 / 1) (#17)
by TChris on Sat Jul 04, 2009 at 08:50:02 PM EST

The victim did not deserve her day in court, nor did she have one. The victim is dead. In any event, criminal prosecutions are brought on behalf of the public, not the victim. A victim never has "her day in court" in the sense you intend.

And yes, it is immoral (and unethical) to prosecute an individual for a crime she didn't commit. The prosecutor wasn't "doing his job." Quite the opposite. His job requires him to respect the law, not to pervert it to advance his individual perspective of what the law should be. If the prosecutor wants to change the law, he should run for a legislative position.


: Disagree (none / 0) (#21)
by Manuel on Sun Jul 05, 2009 at 10:07:13 PM EST

It can't be as clear cut as you make it. Was judge Wu unethical or immoral in allowing the trial in the first place? I would think a judge would not permit unethical behavior from the lawyers in his court.
We are a government of laws and not of men but laws can be, should be, and have been challenged in the name of justice.
It isn't unethical for lawyers to defend clients they know are guilty. I don't see why it is unethical for prosecutors to stretch the law to try to convict the guilty. Isn't that what they have done throughout history?
If some prosecutor or judge somewhere found some way (even if it was a stretch) to haul Bush and Co. into court, I'd be cheering the whole way as I did in the case of Pinochet.
The victim's family found some justice in the veredit. That has to count for something.

Fighting back tears, Ron Meier said: "A jury of her peers did convict her, and that is a victory in itself."
Hopefully, some people changed their online behavior because of this case. That should count for something as well.
In the end, the system worked. The right decission was reached. A family got some justice. I fail to see the reason for outrage.

It's disappointing that fraud extends only to loss (none / 0) (#15)
by ericinatl on Sat Jul 04, 2009 at 06:28:22 PM EST

of money. When loss of life seems much more important. Of course, if I had prosecuted it, I would have argued that there had been substantial loss of something of "value" as the poor girl's earnings potential was reduced to zero.

Just because the prosecution was inept, does not mean a crime was not committed.

What crime? (5.00 / 1) (#18)
by TChris on Sat Jul 04, 2009 at 08:53:10 PM EST

The state and federal prosecutors in Missouri concluded that no crime was committed, as did Judge Wu. So what crime do you think Drew committed? The problem here isn't lack of a proof of "value"; it's that violating a terms of service agreement doesn't constitute unauthorized access to a computer.


"immoral" prosecutor (none / 0) (#19)
by diogenes on Sun Jul 05, 2009 at 08:19:22 AM EST

It is the job of a prosecutor to prosecute. There must have been a grand jury involved and the grand jury believed that there was sufficient basis for a crime to indict Lori Drew. It is the job of the triers of fact to find innocent or guilty.
If you prefer the French inquisitorial system to the grand jury system we have here, then say so. Lori Drew was not prosecuted on the prosecution's whim; someone indicted her and the trial judge did not dismiss the charges before the full trial.


: Oh please. (none / 0) (#20)
by TChris on Sun Jul 05, 2009 at 09:49:37 AM EST

You haven't heard the adage that a grand jury will indict a ham sandwich if a federal prosecutor asks it to do so? Grand juries don't understand the law. If the prosecutor explains that the evidence he presented meets the elements of the offense, the grand jury doesn't know any better.