Legal Commentary

Woman Acquitted of Using Fake MySpace Profile to Harm Girl Who Committed Suicide

By TChris

When TalkLeft last discussed the prosecution of Lori Drew (background here), it was to criticize the Justice Department for exploiting a tragedy as a test case to create a new federal power to prosecute internet users who conceal their true identities on social networking sites like MySpace. Posing as a teenage boy, Drew used a fictitious MySpace identity to say mean things to 13 year old Megan Meier, who was a neighbor and former friend of Drew's daughter. Megan committed suicide, prompting a federal prosecutor in California to indict Drew for computer fraud, despite the decision of a federal prosecutor in Missouri (where Drew and Meier lived) to decline prosecution.

The prosecutor was plainly seeking glory. The good news is: he didn't get it. On Wednesday the jury acquitted Drew of three felony charges that accused Drew of obtaining "unauthorized access" of MySpace to inflict emotional distress on Megan. The bad news (at least for now): Drew was convicted of three misdemeanors. [more ...]

The jury evidently convicted Drew of misdemeanors rather than felonies because the prosecution failed to prove its theory that Drew intended to inflict emotional distress on Megan.

Both [family friend] Ashley Grills and [Drew's 13 year old daughter] Sarah Drew had testified that the intent in creating the account was to lure Megan into conversation with "Josh Evans" to determine what she was saying about Sarah Drew.

You have to wonder whether anyone on the prosecution side of the case actually interviewed Grills, its star witness, before she testified.

Ashley Grills, a confidant and former employee of Drew, was granted immunity from prosecution to testify for the government. But several moments in 20-year-old Ashley Grill's 80-minutes of testimony seemed to undermine the government's case. Her most damaging statements: that it was her idea, not Drew's, to create a fake MySpace account to befriend Megan. And Grills herself opened the account, clicking through the MySpace terms of service that are at the core of the case.

Given that testimony, it's questionable whether even the misdemeanor verdicts will stand. The prosecution rested on Drew's "unauthorized access" to MySpace, which depended on proof that she violated the provision of the MySpace "terms of service" agreement that prohibits users from giving false information to MySpace. Apart from the fact that one user in a thousand (or maybe a million) actually reads a terms of service agreement before signing up for the service, it seems to be undisputed that Drew didn't ever agree to be bound by the agreement. That wrinkle in the prosecution might cause the judge to toss out the misdemeanor convictions. A dismissal motion is pending.

Meanwhile, the U.S. Attorney is crowing about his "victory," claiming to be pleased with the verdict. It's a strange thing to be pleased about losing. This sounds like a strained attempt at face-saving by the U.S. Attorney, who made the highly unusual decision to take a hands-on approach by personally participating in the trial. U.S. Attorneys tend to function as administrators, not as trial lawyers, leaving the actual prosecution of cases to the Assistants. When a U.S. Attorney participates in a trial, it's nearly always because the U.S. Attorney is looking for publicity. That's why H. Dean Steward, Drew's defense attorney, is probably right in this assessment:

[U.S. Attorney Thomas] O'Brien "seems to think he's smarter than" prosecutors in Missouri "who chose not to bring charges against Drew," Steward said, adding that politics likely played a role in O'Brien's decision to prosecute the case himself. "O'Brien wants to continue to be U.S. attorney into the Obama administration, and he wants a victory for that reason," Steward said. "It's to his discredit" that he brought charges.

Screwing up a high profile prosecution isn't the best ticket to a job. Sorry, prosecutor O'Brien. It's time to look for other employment.

Megan's mother had this to say:

Tina Meier, speaking at a press conference, said she had prepared herself for any verdict, but was "of course, wanting convictions on all of them." She called the misdemeanor convictions "a stepping stone" and said she wanted Drew to get prison time.

"Absolutely I think she needs to be punished," Meier said. "I would like the maximum three years."

Even if the convictions survive the pending dismissal motion, a three year sentence is both unlikely and unwarranted given the jury's implicit finding that Drew meant no harm to Megan. And while Tina Meier's grief is understandable, she needs to ask what her own role was in failing to appreciate the depths of her daughter's emotional pain, and in failing to recognize her daughter's risk of suicide. It's easier to blame Drew and to seek vengeance than it is to consider her own responsibility in this tragedy.

Full post as published by TalkLeft on November 28, 2008 (boomark / email).