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November 24, 2008
The Lori Drew Case: Why Not Rule on the Motions?
According to Kim Zetter's account of the Lori Drew trial, Judge Wu has postponed ruling on any of the legal issues until after the jury's verdict:
When the prosecution rested its case Friday at about 2:00 p.m., defense attorney H. Dean Steward moved for an immediate dismissal, based on testimony that proved Drew never saw MySpace's contract, and wasn't the one who set up the account and accepted the terms.U.S. District Judge George Wu asked both sides to file written briefs on the issue over the weekend, and allowed testimony to continue in the case.
Why not rule on it now? Judge Wu hasn't ruled on the merits of how the CFAA should be interpreted, whether it is unconstitutionally vague, and now whether or not the prosecution, as a matter of law, has failed to prove the requisite mens rea. Why won't he rule on any of these issues?
The only reason I can think of is that he's waiting to see if the jury acquits Drew, which then moots the issues. This is the only scenario I can think of in which he won't eventually have to rule on the motions.
Why not just issue a ruling one way or the other? That's what I thought judges are supposed to do. Is there something I'm missing here about his judicial strategy?
Posted by Daniel J. Solove at November 24, 2008 06:20 PM
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Comments
District judges routinely let cases go to verdict before ruling on motions to dismiss an indictment or for acquittal. If the jury acquits, the judge can avoid ruling at all. If the jury convicts and the judge then flips the jury, then if the judge is reversed on appeal, the jury's verdict can simply be reinstated.
Posted by: Bobo Linq at November 24, 2008 07:00 PM
I think the commenter above is correct.
Also (I think) if the judge grants the motion and discharges the jury, the government has a right to appeal the dismissal of the indictment and we can end up with a new trial. If the judge reserves on the motion and the jury acquits, not only is the motion mooted, but the government has no right to appeal.
Posted by: Sean M. at November 24, 2008 07:19 PM
I should also add that Fed. R. Crim. Pro. 29 explicitly allows reservation on the motion. This is not at all unusual.
The Federal Rules of Civil Procedure have a similar process for the civil equivalent, the motion for judgment as a matter of all.
Posted by: Sean M. at November 24, 2008 07:22 PM
Sean M. hits the key point, I think -- what's the one thing a judge hates over all else? Reversal. Why take unnecessary chances?
Posted by: Jason W. at November 24, 2008 09:13 PM
Lori Drew's case 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. --Ben
Posted by: Benjamin Wright at November 26, 2008 08:06 AM
fyi, drudge says she was convicted on more minor charges. its only a newsflash, no link, but this is what drudge says:
"NO JAIL: Missouri mother in MYSPACE cyber-bullying case convicted of lesser misdemeanor charges... Developing..."
I believe he is talking about the same case.
Which, is not an upsetting outcome. it puts a conviction on her punch card, so that for the rest of her life, employers are going to be asking her about that, and i suspect a little private justice, in the form of lost wages, will be brought to bear on her.
i think i would have preferred maybe a year in prison, but that isn't a bad outcome.
Posted by: A.W. at November 26, 2008 02:17 PM
