10 Comments

1. Linus  •  Jul 2, 2009 @4:10 pm
   

   Not to get too deep or anything, but the desire to see every vile act criminalized seems so, well, totalitarian to me. When I hear people say “there ought to be a law”, it makes me cringe. This case is a perfect example. Why is the fact that the name “Lori Drew” will forever be mud not good enough? Why does the State need its finger in that pie?

2. Ken  •  Jul 2, 2009 @4:37 pm
   

   Linus, I had just that argument with a number of people about this — people who felt very strongly that if something is immoral it ought to be illegal. Feh.

3. Shay  •  Jul 2, 2009 @9:01 pm
   

   There should be some statute that makes driving a child to suicide unlawful, but in the absence perhaps ostracism and a fat wrongful death suit may serve to make Drew just wish she were in jail.

4. Linus  •  Jul 3, 2009 @5:12 am
   

   There should be some statute that makes driving a child to suicide unlawful, but in the absence perhaps ostracism and a fat wrongful death suit may serve to make Drew just wish she were in jail.

   Well, as someone who has filed his share of wrongful-death suits, let me say that the State has its finger in that pie too. Put simply, a civil suit is getting the State to act as your strong-man.

   More troubling is how the statute would define “driving a child” to suicide. As Ken points out, the more subjective the law, the more potential for abuse by the State. I think some vile things are so difficult to define objectively that any good that would come from criminalizing the vile thing would be outweighed by the bad that comes from making the State the arbiter in that area. Like, say, oh, I don’t know, criminalizing violation of an internet site’s terms of service.

5. David Schwartz  •  Jul 3, 2009 @12:42 pm
   

   It’s extremely hard to sue someone for inducing someone else to commit suicide. Generally, the law will hold that there is no rational reason a person would commit suicide, and that makes the other person’s choice to commit suicide an intervening cause. (How can you have made someone else commit suicide when they irrationally chose to commit suicide?)

   You can sue for intentional infliction of emotional distress. However, that would require outrageous conduct. Cases like these do meet some of the guideposts for such conduct. The victim was known to be vulnerable. The conduct was part of a repeated pattern.

   The problem is, in this case, there’s no evidence Drew intended to cause distress. She claims she was trying to get information, and that claim is quite plausible. That’s likely why the prosecutors had to resort to a computer crime law — it covers specifically attempts to gain information to which one is not entitled.

6. Shay  •  Jul 3, 2009 @6:49 pm
   

   “It’s extremely hard to sue someone for inducing someone else to commit suicide.”

   I can understand (please be patient with me, I have one semester of business law and a couple of military/international humanitarian law courses but no other legal background) how it would be difficult to prove such a case when an adult is involved, but does the liability issue change when the victim is a child?

   If Drew was in fact only trying to get information, then surely the public dumping/humiliation by the fake teenage boy was unnecessary and cruel.

7. David Schwartz  •  Jul 4, 2009 @12:08 am
   

   Shay: Do you have any reason to think the dumping was Drew’s idea? She denies it. She was not, as you know, charged with that part because there was no evidence she was responsible for it.

8. Shay  •  Jul 5, 2009 @11:02 am
   

   David: true.

   Is the burden of proof lighter in civil cases?

9. Patrick  •  Jul 5, 2009 @12:03 pm
   

   Yes, Shay, it is. In a civil case, the plaintiff only has to prove her burden by the greater weight of the evidence (roughly, more likely than not). In a criminal case, the state has to prove its case beyond a reasonable doubt (a much higher burden).

   Oddly though, American law makes it far easier for a civil defendant to get a case dismissed before trial by demonstrating that the plaintiff cannot prove some aspect of her case than it does for a criminal defendant to get a case dismissed for the same reason.

   Perhaps justice would be better served by allowing criminal defendants the same access to discovery from the state that civil defendants enjoy, as well as the ability to get cases dismissed, relatively easily, on pretrial motions.

   We don’t allow this because it’s probable many if not most criminal cases would be dismissed for that reason, and also because prosecutors would go insane, given their caseloads, if they had to deal with the discovery procedures that civil plaintiffs’ attorneys have to deal with. Criminal defense attorneys would be far less likely to recommend plea bargains to their clients if they had the tools that civil defense have for pretrial dismissal. For that matter, criminal attorneys generally know more about how to try a case than civil attorneys do, but I’ve found, when they take civil cases, that they tend to know less about how to investigate a case, and less about procedural law, as opposed to evidentiary law.

   Of course all of that is gross generalization, but as a civil defense attorney I’m almost always happy to have a primarily criminal defense attorney representing a plaintiff on the other side, simply because I know there’s, all things being equal, a better chance I’ll be able to get his case dismissed before trial on what laypeople would call a “loophole,” but what I’d call an inability to prove some aspect of his case, an insurmountable defense, or the law.

   I’ve met criminal lawyers who barely knew what a motion for summary judgment is, much less how to beat one. Mind you, they were probably young, or bad, lawyers to begin with, but that they didn’t know what they were opposing indicates the differences between the two systems. Since I sympathize more with the fox than the hound, I’d be happy to give criminal defense lawyers some of the tools I can use.

10. David Schwartz  •  Jul 6, 2009 @7:09 pm
    

    From what I know, there currently isn’t even enough evidence to hold Drew liable in a civil case. However, who knows what discovery might turn up.

    The fact that she wasn’t charged for that conduct suggests that the prosecutors couldn’t find enough evidence to convict her on it. But since there’s a lower standard in a civil case, there might be enough evidence to hold her civilly liable.

    If there’s enough to withstand motions to dismiss and motions for summary judgment, it may not really matter whether you can prove it by a preponderance of the evidence. Drew is not nearly as sympathetic as the Meiers are and just a juror or two who is angry that Drew “got away with murder” (whether the facts back that up or not) might be enough.

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