The title of this post is somewhat of a response to the question in Dan Solove’s post at Co-Op, which is: Why won’t Judge Wu rule on the motions in the trial of Lori Drew?
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?
There is only one answer: because he doesn’t want to be the one making this obvious decision.
The testimony at trial was pretty clear:
testimony proved Drew never saw MySpace’s contract, and wasn’t the one who set up the account and accepted the terms.
How, then, can she be convicted of intentionally violating MySpace’s TOS?
The only thing he’s hanging his hat on now is the hope that the jury acquits. Because if they don’t, he will be forced to rule on the motions (maybe as soon as tomorrow, since the jury seems to have reached a verdict on three counts). And if he denies the motion to dismiss, there isn’t a clearer appellate issue – insufficiency of evidence.
This has got to be one of the worst run trials that I have seen or read about in a long, long time. Testimony about the suicide of Megan Meier and her character had no business in that courtroom, yet that’s what dominated the 3-odd days of evidence. If she’s convicted, it will be solely because of the outcome of her allegedly illegal act, which would be an abomination.
There is one person who is charged with overseeing justice in this farce and that is Judge Wu. He needs to “man up” and rule on the motion to dismiss. Waiting for the jury to decide is the easy way out.