Judge to Allow 'S-word' at MySpace Trial

[WSJ_law_blog]

Last week, the judge in the MySpace suicide case had some concerns over whether the suicide of a 13 year-old girl was relevant to the crime charged. On Friday, U.S. District Judge George Wu apparently got past those concerns. He ruled that prosecutors can use evidence of the suicide in its case against Lori Drew. The trial is set to begin tomorrow.



Judge George Wu, Jan. 19, 2006, in Los Angeles. (AP Photo/Los Angeles Times, Robert Gauthier)

According to the AP, at the Friday hearing, Drew’s lawyer, Dean Steward, argued the suicide evidence would lead jurors to focus on the death, rather than whether Drew violated the terms of service of MySpace. He added: “The jury is going to end up thinking that Lori Drew is being tried for the death of Megan Meier.” Rather than making a reasoned decision, he said, “this jury is just going to decide this by sympathy.”

The charge against Drew — that she violated the MySpace terms of service — incorporates an allegation that she did it with an intent to harm. So AUSA Mark Krause reportedly argued that Drew is charged with joining in a conspiracy to cause intentional infliction of emotional distress. “Showing that this victim took the ultimate step of taking her own life shows the level of her distress,” Krause said.

Judge Wu reportedly responded that he was convinced many prospective jurors would be aware of the suicide from reading news reports or seeing a recent episode of the TV show “Law and Order” that involved a similar scenario. He said he would instruct jurors that the case was not about the suicide and that Drew is not charged with causing the suicide.

Over at the Concurring Opinions blog, Daniel Solove, a GWU law prof (and colleague of Orin Kerr, who’s been providing assistance to Drew’s lawyer), is none too pleased with Judge Wu’s evidential ruling. He writes:

I have no idea if this AP report is correct about Judge Wu’s reasons for allowing the evidence of the suicide, but it strikes me as erroneous reasoning. The suicide has little to do with the violation of the [Computer Fraud & Abuse Act]. The alleged violation can be proven without introducing evidence of the suicide. The suicide is so prejudicial, likely to inflame the jurors’ passions and get them to hate Lori Drew for what happened rather than to focus on the alleged violation of law. . . .The fact that pretrial publicity might mean that some jurors know about it is no excuse for sidestepping the rules of evidence. . .