Lawyers to Judge: Don't Make an Example of Lori Drew

After the prosecution turned Lori Drew into a national symbol of cyberbullying, it's "outrageous" to demand a harsh three-year prison term because she's become that symbol, Drew's defense attorneys told a federal judge Wednesday.

Prosecutors last week urged the court to sentence Drew to the maximum three years in prison for three misdemeanor convictions, instead of the one-year probation term recommended in an independent, court-ordered pre-sentence report. "A probationary sentence might embolden others to use the Internet to torment and exploit children," the government argued. Drew "has become the public face of cyberbullying."

But the entire point of prosecuting Lori Drew was to make her the "public face" of cyberbullying, wrote Drew lawyers H. Dean Steward and Orin Kerr, in a filing (.pdf) with the U.S. District Court in Los Angeles. It was the government that "ensured that the name 'Lori Drew' would be known to millions of Americans."

The defense attorneys are a bit off the mark in their assessment of what made Drew's name known to millions. It wasn't prosecutors who made Lori Drew famous, but the internet fury machine, which publicly outed her and demanded she be punished for her role in harassing, or encouraging the harassment of, Megan Meier, a 13-year-old Missouri girl who committed suicide in 2006. It was only after Drew became the focus of so much publicity that prosecutors in Los Angeles came up with a novel approach to prosecuting her.

Noting the government's unprecedented use of an anti-hacking law to prosecute cyberbullying, the defense attorneys said the Drew verdict is not likely to survive appeal. That's why legislators nationwide have rushed to enact new laws that are meant to specifically prohibit cyberbullying. Because these laws are only now being enacted, Drew should not be sentenced harshly for something that was not a crime at the time she was indicted.

"The rush to enact new statutes to prohibit cyberbullying, both at the state and federal level, reveals the absurdity of the government’s claim that a severe prison sentence in this case is needed to deter cyberbullying," the defense attorneys write. "The idea that a Court must impose a severe sentence for conduct that occurred before legislatures actually prohibited cyberbullying is absurd."

The defense attorneys are still hoping to make the sentencing issue moot. They want presiding Judge George Wu to rule in their favor on a pending motion for direct acquittal, and throw out a verdict they say should never have occurred.

To underscore their argument that the case should never have been tried, the attorneys quote former Attorney General Robert H. Jackson on the dangers of prosecutorial abuse:

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. . . . In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books . . . to pin some offense on him. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.

Image: Lori Drew leaves federal court during a lunch break Tuesday, Nov. 25, 2008,
in Los Angeles. Nick Ut/AP

See also:

• Prosecution: Lori Drew Schemed to Humiliate Teen Girl
• Government's Star Witness Stumbles: MySpace Hoax Was Her Idea, Not Drew's
• Blog Readers Out Anonymous Adults that Newspaper Refused to Identify