About a year and a half ago, Megan Meier hung herself after a boy she liked and talked to via MySpace turned on her. Turns out the “boy” was a hoax; a fake profile created by Megan’s friend (and also her neighbor), another teenage girl and her friend’s mother, Lori Drew.

[Drew] claims the profile was the work of her teenage daughter and a teenage employee called Ashley Grills.

Last month, Grills, now 19, went on national TV saying that while she was responsible for setting up the fake Josh profile, Lori Drew and her daughter were also involved in the cruel hoax.

The message was supposed to end the online relationship with “Josh” because Grills felt the joke had gone too far. “I was trying to get her angry so she would leave him alone and I could get rid of the whole MySpace,” Grills said.

This is a well-intentioned indictment [pdf]. After all, a girl is dead and it seems that but for the hoax, she would be alive. Yet, there is a problem: The indictment was returned by a Federal grand jury in Los Angeles, while the Drews live in St. Louis, MO.

Local authorities in St. Louis investigated this incident last year, but were unable to find a law that Drew violated, so no one was charged.

Now, Federal prosecutors have their ham sandwich.

In their eagerness to visit justice on a 49-year-old woman involved in the Megan Meier MySpace suicide tragedy, federal prosecutors in Los Angeles are resorting to a novel and dangerous interpretation of a decades-old computer crime law — potentially making a felon out of anybody who violates the terms of service of any website, experts say.

Lori Drew, of O’Fallon, Missouri, is charged with one count of conspiracy and three violations of the anti-hacking Computer Fraud and Abuse Act, in a case involving cyberbullying through a fake MySpace profile.

Volokh Orin Kerr, correctly in my opinion, lists three major problems with this indictment:

Is it a federal crime to violate contractual limitations on use of a computer?… If the computer owner says that you can only access the computer if you are left-handed, or if you agree to be nice, are you committing a crime if you use the computer and are nasty or you are right-handed? If you violate the Terms of Service, are you committing a crime?

[T]he crime requires the government to show that Drew intended to violate the Terms of Service. That is, lack of authorization must be intentional — it must have been Drew’s conscious object to have violated the TOS.

The third hurdle, and perhaps the easiest way for the defense to win, is that the government’s theory requires proof that the goal of the conspiracy was to obtain information…Her apparent goal was to harass her victim and to cause emotional distress, not to obtain information from her.

Dan Solove at Co-Op is not so sure about the last one, but even if you take that out, I think #2 is a major hurdle. How can they ever prove that a) Drew read the TOS, b) understood that the TOS prevented her from setting up a fake profile to gather information about a daughter’s friend and c) intentionally violated the terms of the TOS? Just won’t happen.

While it would be ideal to have someone on whom to assign blame, it should not come at the risk of stretching the law to fit the circumstances of a particular case. When we start molding the law and stretching it and twisting it to reach one, individual, particularized goal, we start to make it extremely fluid and dangerous in its application.

[Update: Scott has more on this angle here.]

As we see time and again, there are profoundly tragic events that occur in society, for which there is no one who is legally at fault. This seems to be another of those. Of course, that’s no solace to Meier’s family, but this is a very attenuated application of a Federal law.

Photo credit: The Age/AP

In keeping with “Should prosecutors be held accountable” week, the 9th Circuit issued this scathing opinion, chastising two prosecutors for egregious violations:

The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many of the key witnesses had testified and been released. Even then, it failed to turn over some 650 documents until the day the district court declared a mistrial and submitted those documents to the court only after the indictment had been dismissed.

The Court concludes with:

This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available.

Despite that, the opinion declines to name the prosecutors in question. Fortunately, Mike at C&F is not so shy. He’s going to send a copy of the opinion to the Nevada State Bar Association. Maybe something will come of it. It should.

Apparently, Oregon is trying. The story goes thusly: Oregon sent a cease and desist letter to Justia and Public.Resource.Org. They claimed a copyright in the “arrangement and subject matter compilation of Oregon statutory law…” Thus, Oregon is asking these sites to take down the Oregon statutes they make available for free.

Most of the correspondence is available for view here. As Justia and P.R.O point out in this letter, the Oregon website is horribly W3C non-compliant (there are over 503,000 HTML errors!), is not “section 508” compliant, doesn’t use CSS (!!!) and even has a robots.txt file that blocks search engines!

How is that “accessible to the public”? The site lacks functionality and may not be accessible by all browsers and all operating systems.

So, what if a State decides to either charge for access to its statutes or makes it publicly available on a crappy website where not all can view the pages. Do we have a legitimate notice problem? I know we are all presumed to know the law, but if the State is charging for access to the actual text of the Statutes, or makes them difficult to access, what are the chances of successfully defending a prosecution on due process grounds?

Also, what the hell is wrong with Oregon? Why, in this day and age, would you be so stubborn and so stupid? What is really the point of “protecting” the Code? I don’t understand what they’re trying to accomplish, other than look foolish.

Anyway, anyone see a potential notice problem here?

H/T: HaveOpinionWillTravel

Do you have a reasonable expectation of privacy in your car, which you left unlocked in the parking lot of your place of business? Would police require a warrant to open the doors to your car and look inside? Assume nothing in plain sight.

Looks like I wasn’t the only one who had prosecutorial ethics on my mind this past week. From Grits, Dallas DA Craig Watkins has about had it with these exonerations and wants to do something about it. His proposals are serious.

“Something should be done,” said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. “If the harm is a great harm, yes, it should be criminalized.”

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

And he has reason to be considering such harsh penalties. Texas has already paid $8.6 million since 2001:

Of the 45 wrongful-conviction cases for which the state has paid compensation, at least 22 of them involved prosecutors withholding evidence from the defense: 19 in the infamous Tulia drug convictions and three of Dallas County’s DNA exonerations. The remainder of the payouts involved exculpatory DNA evidence or other flaws.

The article notes the paucity of sanctions against prosecutors who withhold evidence - one of the only example given is the only case in recent history where a prosecutor was disbarred: Mike Nifong in the Duke lacrosse case.

But as can be expected, there are other prosecutors who take an opposing view. John Bradley, a prosecutor in Williamson County near Austin calls Watkins’ proposal “ridiculous” and “an overreaction”.

What’s ridiculous is that innocent people spend decades in prison and the prosecutors that withheld evidence to put them there don’t get as much as a slap on the wrist. Prosecutors have a duty to do justice and to seek out the truth. To turn a blind eye when they neglect that duty and in fact take affirmative steps to circumvent justice is a big f*ck you to the whole system.

There’s absolutely no reason not to have a mandatory grievance process, at the very least, for prosecutors who intentionally withhold Brady or Giglio material.

The Innocence Project of Texas, a nonprofit legal clinic that worked to free many of the Dallas County exonerees including Mr. Woodard, supports criminalizing Brady violations. Michelle Moore, a board member of the Innocence Project and a Dallas County public defender, said that doing so would reduce the number of violations.

“If he can do 27 years behind bars,” she said of Mr. Woodard, “the prosecuting attorney can face time for hiding evidence.”

Damn straight he can. I know some prosecutors read this blog. What do you think of Watkins’ proposal? Would you be in favor of something like this in your State? If not, why not?

Western Justice, self-proclaimed small town prosecutor, quotes Alan Dershowitz in asking whether criminal defense attorneys are “lie promoters“.

But let’s say their client comes in, and tells them everything that happened–down to the very last detail, and those details are essentially–I’m guilty, I did it, and everything in the police reports is true.

Under that limited scenario, when a defense attorney goes into court, questions the jury during voir dire, presents an opening statement, cross examines witnesses, and maybe even calls a few witnesses himself, and then argues in closing not just that the District Attorney did not prove its case beyond a reasonable doubt, but that there are several other reasonable alternatives as to what might have happened, are defense attorneys lie promoters?

Several things struck me about this as problematic. First of all, it would indeed be an extremely rare circumstance in which the defendant actually admits that everything that is alleged is 100% true. There’s a reason for this and it’s not because defendants are liars, but because rarely is everything actually true.

The second, and more fundamental, problem is the abject failure to recognize the system that we have and the distinct roles that prosecutors and defense attorneys fill in that system.

Defense attorneys are not partners in this pursuit of justice - we are defenders of the Constitution and of individual liberties. We are not charged with coming at the truth, but rather ensuring that the Government does not willy-nilly imprison individuals. There is a reason that the burden of proof rests with the State and defendants need not lift a finger at trial.

Yet another thing that bothers me is the holier-than-thou attitude, which I’ve written about several times. Prosecutors like to think of themselves are righteous, can-do-no-wrong proponents of some higher ideal. Yet, time and again, they will take as gospel the drivel spewed forth by cops in “police reports”, ignore blatant lies, “lose” exculpatory information, condone arm-twisting of witnesses and victims. Where is the righteous indignation then? Why no outcry? The hypocrisy is palpable.

If you’re looking for the truth, Mr. Prosecutor, start by asking yourself if you would file a substitute information on a lesser charge or dismiss them entirely if you have any doubt as to the veracity of the facts are reported by the police. And if you would, recognize that it is your job to do so and that you are in the minority. Just as the defense attorney who goes to trial with a client who has “admitted” guilt. And even then, recognize that both the rare prosecutor who does not drink the kool-aid and the defense attorney that goes to trial in those circumstances are obligated to do so. The burden is yours, not ours.

This is not some silly game. The very liberty of individuals hangs in the balance. What I know or do not know about my client’s guilt or innocence is irrelevant. What is relevant is whether you can prove that he is guilty.

In the real world, one would assume that if the facts are such that all the elements of the offense would be easily proven, and there is no dispute from the defense, then the case will be plea bargained. But remember that a bargain means give and take. If you make an offer that is essentially the same as what the defendant would get if he went to trial, there is no bargain. You are providing no incentive to avoid putting you to your burden.

Scott provides a fitting conclusion:

But the galling aspect of this “theory” is the implicit assumption that it is the defendant who is inclined to play with the “truth”. I can’t count the number of times some kid prosecutor confuses himself with being Odie to some cop’s Garfield, lapping up whatever story the cop feeds him as if it’s gospel. What makes prosecutors believe, truly believe, that they aren’t getting fed a slab of beef surrounded by a garnish of utter fabrication? This “my cop would never lie” attitude is the mark of naiveté. Cops treat kid prosecutors like the village idiot, too stupid to recognize tailored testimony if their life depended on it.

So is it more fulfilling to claim ownership of the “truth” when it’s the product of child-like self-righteousness? One side has an ethical duty to do justice. The other had a duty to defend a person. That’s the way the system is supposed to work, and to think that there’s one side that owns the truth is just silly.

What say you, WJ?

There is an interesting series of posts over at the Volokh Conspiracy (I know, I know), in which minds far greater than mine tackle the question of age of consent laws and the reasons for choosing the prevalent age cutoff.

Eugene “Gene” Volokh starts it off by wondering:

Ah, one might say, but perhaps the 30-year-olds are more likely to be sexually exploitive of the 16-year-olds, whatever “sexually exploitive” might mean. But why should we be so confident of that? Sixteen-year-old boys can be as interested as 30-year-olds in sexual conquests for the sake of sexual conquest, and can be as willing and able to lie and manipulate to get what they want. I suppose they might be less good at the lying and manipulating, for the same reason that they can be less good at some of the things the 16-year-old girl may want (being courted in a romantically appealing way). But I doubt that they’re entirely unable to lie and manipulate — and they may feel even more pressure to do so, because they may be more hormonally charged, sexually desperate, and desperate to prove their adulthood and manliness by getting sex or by racking up partners.

Of course, 16-year-olds are more likely to be thrown together with other 16-year-olds in social contexts, and are thus more likely to “naturally” become interested in each other. Perhaps then the rationale is simply that you can’t stop such sex without prosecuting millions of people, while you can stop adult-adolescent sex, which might be more likely to be more common. But the effect of the law is still to channel some 16-year-old girls away from sex with adults and into sex with other teenagers. That would make sense, I think, only if we think that sex with teenagers is better for them than sex with adults would be. But why is that so?

Those in the field of criminal law (and observers) have long noted the arbitrariness of choosing 16 as a cut-off age for sexual activity. Rome and Juliet laws seek to decriminalize behavior between young teens, but almost universally, sex between an adult (18 and above) and a young teen is condemned and criminalized. On the other hand, there is a growing number of crimes for which those same 15 and 16 year olds are treated as adults.

What is the reason for this discrepancy? Are we saying that teens have the maturity to perform one sort of act but not the other? As one commentator puts it, a 16 year old may not know any better than to have sex with a 30 year old, but should know better than to rob and kill.

It is an interesting theory and might well be the best explanation, but it is not free of problems. Generally, if you have the intent (and maturity) to commit a severe act, then does it not follow that you must have the maturity to commit a lesser act? If consensual sex is seen as less severe than robbery, then if teens are treated as adults for crimes, must we not give them the same leeway in their sexual relations?

Of course, the problem is that maturity is subjective. Some 15 year olds are far more mature than some 30 year olds. In the law, you have to draw a line somewhere and create clear demarcations. So perhaps we as society have accepted that 16 is a good clean line to draw. But there’s a problem with that:

But the reality is that over half the states do not prohibit this behavior, but have a general age of consent of 16 (that is to say, the age of consent for sex with adults, rather than just with fellow children, setting aside the special case of sex with adults who are in a special position of authority, such as family members or teachers). In most of Western Europe, the general age of consent is likewise 16 or less. There’d be no need to “change the law” to allow this in most places; one would need to change the law to forbid it.

Now maybe this judgment of most of the U.S. and of Europe is wrong, and that they are themselves “out of touch with reality,” whatever exactly that means. I certainly don’t want to argue that the majority view is always right. But it does suggest that we can’t lightly assume that accepting a general age of consent of 16, under which sex between 16-year-olds and 30-year-olds (or 60-year-olds) is legal, is “luna[cy].”

But wait, there’s more: In France, the general age of consent is 15. In Austria, Germany, and Italy it’s, generally speaking, 14. In Spain it’s 13. In several U.S. states, it was 14 until a decade or two ago; in Canada it is 14, though a recent law changes it to 16 as of May 1, 2008. [W]hen nearly 200 million members of our Western culture live in countries where the age of consent is 14 or less, this should lead us to think that there’s an important discussion to be had here, and that the answer is at least not open and shut.

So, I turn it over to you, my enlightened readers. What think you?

The question mark is because I can’t tell from this piece what the heck actually happened. Shoddy, shoddy writing.

Under pressure to respond after two deadly home invasions in the past nine months, the state Senate voted early this morning to strengthen the state’s criminal law and allocate $10 million for enhanced crime-fighting.

The bill passed by 32 to 3 at about 2:20 a.m. Thursday after the Senate Democrats withdrew a previous amendment that had prompted a sharply bitter debate with Republicans. The final version gained bipartisan support after lawmakers said the bill would authorize a judge to double the penalty following a second violent crime and triple the penalty after a third offense - up to a maximum of life in prison for a violent felon.

The debate on the three-strikes bill had the usual rhetoric from the Republicans that criminals are not being punished. The Dems responded with “bumper sticker politics”.

So what happened, exactly?

Earlier in the evening, the Republicans had verbally pummeled the original bill on the Senate floor, saying that it would actually weaken the state’s laws for violent crimes. Following that clash, Democrats — who hold the majority in the chamber — suddenly postponed the debate and called for a recess shortly before 11:30 p.m. The chamber reconvened later, and the “three strikes” debate pushed the vote past 2 a.m. Thursday.

“This is an extraordinary change in our public policy,” McDonald said, adding that criminals “will be punished in extraordinary ways.”

But Sen. John Kissel, an Enfield Republican, said the original bill was so badly written that it would not accomplish the legislature’s tough-on-crime goals and, in fact, would backfire.

“I guess I’m missing something,” Kissel said. “It actually is weaker addressing persistent dangerous felony offenders. … This amendment pushes us backward. How can this be tougher on criminals? It’s not.”

Out of 21 violent crimes mentioned in the original bill, the maximum prison sentence would actually be reduced for eight of them, Kissel said. That includes second-degree manslaughter with a firearm, among others.

Oh well, that’s interesting. Pray tell us, Courant, why these sentences would be reduced and what other crimes?

No? That’s not important to the narrative? Oh. Okay. Well, then tell us what the final version of the bill was.

Besides streamlining the law, the bill provides money for more prosecutors, public defenders and probation officers, along with expanding the state’s “cold case” unit and providing additional re-entry programs for criminals who are released from prison.

“So many people fail on probation,” said Senate Majority Leader Martin Looney, a New Haven Democrat. “So many people fail on parole.”

But McKinney said he was stunned when he read the original five-page bill. Currently, a criminal could receive 40 years in prison for compelling someone to have sex at gunpoint. The bill, crafted by Democrats, would reduce that penalty to 20 years, he said.

Wait. I’m confused. Is this the original version, the amendment that was scrapped or the final version? Don’t know? I don’t either. Good job there, Chris Keating, Capitol Bureau Chief. Now I know less than I did when I started reading your story.

Can you condense all of this into bullet points for stupid old me?

# $5,492,000 to improve supervision of sex offenders who are on probation, including upgraded lie-detector and global-positioning-system (GPS) technologies. The money also would be used for truancy prevention and helping officials serve warrants on probation violators.
# $2,147,000 to hire more parole officers and prison guards, along plus expanding the use of GPS technology to track criminals who are on parole.
# $910,000 for the state Department of Mental Health and Addiction Services to provide supportive housing and for improving the women’s jail-diversion program, among others.
# $681,000 to the Division of Criminal Justice for more prosecutors and better computers.
# $514,000 to hire more employees for the state police major crime squad.
# $252,000 to the Public Defender Service Commission for lawyers to handle more prosecutions and aide indigent criminals.

Yet nothing on penalties. Sigh.

Oh, by the way Chris Keating, Capitol Bureau Chief, the correct term would have been “indigent defendants“, not criminals. Unless, of course, this bill removed the presumption of innocence. Which I have no way of knowing whether it did or not, because I didn’t understand anything you wrote.

Anyone have a link to the actual bill that was passed?

Scott has shamed me into posting. Again. He has two posts on things that should always happen and things that should never happen. He asks us to think of it as a legal Rorschach test.

All people who believe that convicting innocent people is an acceptable necessity of an imperfect system should nominate one member of their family to go to prison “just to be safe.”

Government should never spend more on prisons than education.

So here are my contributions. Some may be repeats from his posts and it’s an incomplete list, mostly because I’m too busy soaking up the sun. But. Here goes:

Must happen:

1. Appellate Judges must spend three weeks a year practicing in the “real world”.
2. Defense lawyers must meet with clients at least twice before getting them to plead.
3. Prosecutors must spend two weeks in our chair.
4. Prosecutors must keep victims informed of progress in cases.
5. Identifications must be performed using the double-blind, sequential method.

Must not happens:

1. Harmless error must never be used as an excuse again.
2. Claims must not be deemed abandoned because you forgot to object for the 5th time.
3. Prosecutors must never hide exculpatory evidence and get away with it.
4. Defense lawyers must never forget that someone’s liberty depends on our efforts.
5. Prosecutors must never be afraid to challenge the police’s investigation (after all, they are after truth, not convictions).
6. People must not be tricked into confessing.
7. Police must never lie on affidavits.
8. Defense lawyers must never forget that it is all about the clients.
9. Defense lawyers must never forget that they can always do better.

Additions?

Doug at Not Guilty asks practitioners whether they’d prefer good facts or good law in a case. The answer, I think, is clear. Good facts (almost) always trump good law.

Putting aside the question of whether there actually is such a thing as “good law” for defendants, if the facts are not on your side, your options get severely limited. If you have a case with bad facts, you’re essentially looking to get the “least worst” resolution for your client.

If, on the other hand, you have good facts - such as DNA evidence that excludes your client - then not only can you argue to a jury (or a judge) that the verdict should be not guilty, but you can also try to create an exception in the “bad law” for your good facts.

Anyone disagree with this?