Judge Wu must be in quite the quandary. After the quickest about face in modern history, he tried to play it safe by reserving judgment on the defense’s motions to dismiss. He had hoped the jury would make it easy for him by acquitting Lori Drew, but they threw him a curveball (how many cliches can I get into one paragraph?) and acquitted her of only some of the charges. [Obviously this is conjecture on my part. I have no inside knowledge.]
So, the ball was in his Court (okay, two paragraphs). He could still do the right thing and grant the motion to dismiss. Or, rather, it was easy until yesterday. That’s when the foreperson of Drew’s jury started getting chatty.
“Trust me, I was so for this woman going away for 20 years,” Valentina Kunasz told Threat Level. “However, on the harsher felony charge, it was very hard to find her guilty on the specific [evidence] given to us.”
Kunasz said despite all the debate outside the courtroom about the prosecution’s use of an anti-hacking statute to charge Drew for violating a website’s terms of service, jurors never considered whether the statute was appropriate. However, she said she agrees with the idea that users who violate a website’s terms of service should be prosecuted.
“The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service,” she said. “I always read the terms of service…. If you choose to be lazy and not go through that entire agreement or contract of agreement, then absolutely you should be held liable.”
There are more disturbing comments here:
“The last message was a huge piece of evidence,” Kunasz said, “but we had no way of knowing whether it was interstate or not. I honestly think that if they gave us a little more solid, hatred-type e-mails or MySpace messages it would have been a lot easier [to convict her].”
This raises the question (we’ll get back to Judge Wu in a second), how did she end up on the jury? Every comment she makes reeks of her making up her mind before listening to all the evidence. And someone who always reads the TOS? Have you read the TOS for this measly little blog? Someone either messed up in jury selection, or someone lied. [Update: Anne Reed - the inimitable Anne Reed - posted about this very question just as I was writing my post. For a more insightful take on how she may have ended up on the jury and six common mistakes lawyers make, read her post.]
Judge Wu, now, has a problem. Does he publicly reject the jury’s express reasoning and their result? If he was skittish to do it before the verdict, these comments certainly wouldn’t have helped. Will he have the conviction (hah!) to face up to the inevitable media blitz if the conviction is reversed? Certainly, the law demands it, but the law also demanded that no testimony regarding the suicide be introduced at trial and look what happened.
Or does he take the easy way – again – and leave it up to a court with a pair (several pairs, perhaps)? Not that this is a particularly appealing to a judge. It’s not secret that judges hate (hate) getting reversed on appeal.
So he’s now faced with a difficult choice. Does he uphold the rule of law, or let the law be shaped by the circumstances of one particular case. It isn’t really a mindbender, but he has only himself to blame for the position he’s in.
Maybe he’ll do the right thing. Maybe.