Perverse justice

Mark Cuban’s brother is a lawyer, and he has a blog. Brian Cuban has a strong reaction to the latest events in the so called “My Space suicide case.” I’m sure you have heard about it: a 49 year old woman pretended to be a boy named Josh who then befriended a sensitive and insecure 13 year old girl. When “Josh” ended his relationship with her in a harsh and meanspirited way it was too much for the youngster, who wound up taking her own life. The 49 year old woman, Lori Drew, was the mother of a ‘friend’ of the 13 year old. The feds have decided to prosecute this woman and they are using a novel legal theory to do so.

What Cuban is concerned about is the prosecution of Lori Drew, more specifically the federal prosecutor’s decision to manipulate the law in seeking the prosecution. Cuban is, as all of us are, outraged by the horrific manipulations of Lori Drew. But, as a lawyer, he is equally or perhaps more appalled by the manipulations of federal prosecutors.

Many lawyers would agree with Cuban. Something about this case, however, makes me want to argue against the lawyerly grain here.

First, the legal system should be set up to ensure that justice prevails. There are certain rules that we lawyers follow (sometimes just because they’ve been drilled into us and we regard them as sacrosanct). For example, lawyers should keep client confidences. Always. Only exception: if the client tells you he’s going to hurt a lot of people.

We lawyers also believe that prosecutors should be fair in seeking convictions. So now we’ve got Cuban and no doubt many other people outraged at this unseemly action by federal prosecutors. I agree with one thing: the prosecutors are probably (can’t say for sure, but very likely) driven to stretch things because of the ‘outrage factor.’

Assuming that Lori Drew did what she is alleged to have done (and there doesn’t appear to be much controversy about the underlying facts), then I have no problem whatsoever with this prosecution. Why?

Well, let’s try to keep this simple. I don’t like it when the law gets so esoteric that only lawyers can understand what’s going on. That’s usually a sign that common sense has been brutally sacrificed. So let’s pretend we’re primitive tribal people. If one of our tribe members did something this anti-social and horrendous odds are we’d banish the offender, which might be a pretty harsh sentence. But as a tribe we need to discourage certain kinds of anti-social behavior, and this would be a flagrant example of something we’d want to prevent.

Now, back to reality. We are a nation of laws. We have so many laws that the normal person can’t keep track of them all. We operate under the fictional (and laughably ludicrous) notion that we are all ‘aware of the laws.’ That is, we can’t claim ignorance of the laws. So, if we are going to charge someone with violating the laws then we need to give clear signal of what is being prohibited. To charge someone with a crime you need a law that criminalizes the wrongful conduct. It’s unfair to manipulate the law, just so you can prosecute someone.

Makes sense, right?

So how I not be outraged by the notion that the government will prosecute Lori Drew? Well, for starters, it’s because they aren’t prosecuting her for murder or its close equivalent. They are prosecuting her for, in essence, cyber-bullying. Perhaps that’s a stretch, and if it is so what? Worst case for Lori Drew is that she spends a lot of money and gets convicted and does very little time, if any. Best case for society is that she has her name plastered all over the newswires and spends lots of money defending herself. Maybe she gets acquitted, or maybe the appeals court overturns her conviction. Either way, I’m burning many calories worrying about it.

What does concern me are all the situations where prosecutors fail to reveal exculpatory evidence, or flat out lie. How did Dallas District Attorney Henry Wade compile such an impressive win record? Ask James Lee Woodward. What made Mike Nifong think that it was okay to conceal exculpatory evidence in the Duke LaCrosse case? I don’t know, but it was horribly wrong. So, what I’m concerned most by is when prosecutors manipulate proceedings so that justice is not served; that is, when innocent people go to jail for crimes they didn’t commit. And that’s been happening for years.

I’m less concerned when prosecutors try a novel theory to seek the conviction of someone who is clearly guilty of something despicable, but our only problem is that we don’t know what to call it.