Judge Wu is so screwed

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.

6 thoughts on “Judge Wu is so screwed

  1. S

    You have TOS? Am I committing a crime with my comment?

    This case is such a mess. The Missouri prosecutors who declined to file charges were right, of course. This judge knows it. That’s why he has thus far taken every opportunity to pass the buck. So the question now is will he pass the buck to the appellate court?

    1. Gideon Post author

      Wha? Don’t you people read anything? There are links, like, everywhere!

      As for Judge Wu, I’d be very (pleasantly) surprised if he grants the motion to dismiss. As more time passes, it gets hazier.

      1. S

        I guess I’m just lazy and don’t live up to the high standards of one Juror Kunasz.

        As for Judge Wu, I once had a judge say after the jury convicted my obviously innocent client, “Well, the verdict would have been different if this case had been tried to me.” Gah! Then grant the motion for judgment of acquital! Or grant the post-verdict motion for judgment notwithstanding the verdict! You can do that, you know. But, no, instead of doing the right thing, he let my client rot for 7 years.

        1. Gideon Post author

          That’s ridiculous. It’s the “well, I can’t upset a jury’s verdict” mentality. And realistically, what’s the backlash from doing so? A piece in the press?

  2. Mark in Jersey

    TOS is a private contract… there is no criminal liability for breaking it, as there is no law that holds it in force.

    One could just argue lack of “prior notice” in the criminal statutes, as in “void for vagueness”, which is violative of Due Process, right?

    We’ve got to get the jury to start considering the facts AND the LAW 😀

    I’ve got to read the exact charges and the bill; I’ve just heard of this case, read the history, and it seems insane that the defense put this in front of a jury instead of a judge familiar with technology law.

    1. S

      Mark, the defense requested a bench trial, but the prosecution refused to go along. I think it’s wrong to allow the prosecution to have a vote on that issue. I have always thought the right to a jury trial belonged to the defendant and the defendant alone. If she doesn’t want to be judged by a jury, that ought to end the inquiry.


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