Written by: Jay D. Hall
Edited by: Stefanie Herrington, Amy E. Seely

On May 15, 2008, federal prosecutors in Los Angeles filed charges against Lori Drew for her role in a Myspace hoax that led to the suicide of 13-year-old Megan Meier. Ms. Drew told police that she created a Myspace account for the sole purpose of communicating with Megan in order to find out what Megan had been saying about Drew’s teenage daughter. Drew admitted that she, along with a temporary employee, Ashley, created the profile of a “good looking male” named Josh in order to befriend Megan. Soon, the communications became “sexual for a thirteen year old.”

The internet relationship soon took a nasty turn. After receiving messages ending the online romance that included accusations that Megan was promiscuous and a statement that “the world would be better off without you,” Megan committed suicide by hanging herself in her bedroom closet. Tina Meier, Megan’s mother, remembers with regret a conversation she had with her daughter about her online communications. Meir said Megan was “looking for me to help calm herself down like I always did…but I was upset at the language she was using.” Megan’s last words to her mother were, “You’re supposed to be my mom, you’re supposed to be on my side.” Then she stormed upstairs, where Mrs. Meier found her daughter’s lifeless body shortly thereafter.

Following Megan’s suicide and an ensuing investigation, Ms. Drew was indicted by a grand jury on charges of conspiracy and accessing protected computers without authorization to get information used to inflict emotional distress. Drew admits that “communication between the fake male profile and Megan was aimed at gaining Megan’s confidence. Mrs. Meier noted her daughter struggled with self-esteem issues, but after receiving messages from “Josh” telling her she was “pretty,” Megan seemed thrilled. Mrs. Meier also said that when “Josh” broke off the relationship, Megan was devastated.

Initially, when her involvement came to light, Drew was apologetic about her role in Megan’s death; she even sent Megan’s parents a written apology. She didn’t anticipate being held criminally responsible for the suicide. Even the prosecutor from St. Charles County, where all of the events took place, stated there was no law under which she could be charged. Federal prosecutors, however, disagreed and brought criminal charges against Ms. Drew.

Criminal conduct or immoral act: You decide, if you’re the prosecutor

Prosecutors have vast discretion in deciding which charges to bring in criminal cases. It is well established that a prosecutor’s decision to charge or not charge an individual with a criminal violation is protected by traditional notions of prosecutorial discretion. Prosecutors’ offices are essentially the clearinghouse for unsupported charges. In other words, when a police officer cites an individual, society relies on the prosecutor as a first hurdle to ensure that the conduct was criminal and that the offense charged was appropriate. Society also relies on prosecutors to make decisions on how to best allocate the scarce resources of the criminal justice system. The National District Attorney’s Association recognizes that prosecutorial decisions are rarely simple–in addition to assessing the strength of a case, prosecutors also must consider other tangible and intangible facts such as the possible deterrent value of prosecution to the offender and society in general. The discretion of the prosecutor is not without limits, though: a prosecutor in a criminal case must refrain from prosecuting a charge that he or she knows is not supported by probable cause. Probable cause is a very low evidentiary threshold, and has been defined as “reasonably trustworthy information sufficient to warrant a prudent person in believing that the crime at issue was committed by the named defendant.”

There exist two other tests for what constitutes “ethical prosecution,” but neither test has the binding force of law. The first test is whether the prosecutor has sufficient admissible evidence to support a conviction. The second test promulgated in the Justice Department Manual suggests that a federal prosecutor should not prosecute unless he or she believes that an unbiased finder of fact will find the defendant guilty beyond a reasonable doubt. The problem with these standards is that they require the prosecutor to look to the endgame and predict the credibility of witnesses and evidence. While a prosecutor may hypothesize on witness credibility or the particular weight the jury will assign particular pieces of evidence, those decisions are left to the jury as the ultimate finder of fact. These tests are only guidelines, meant to assist a prosecutor in making a charging decision. The only legally binding test remains whether the charge is supported by probable cause.

Another limit to prosecutorial discretion is the grand jury. A grand jury is made up of citizens whose job it is to fairly and impartially look at the evidence presented to it by the prosecutor. Although a defendant’s right to grand jury is guaranteed by the 5^th Amendment, the defendant has no right to appear before the grand jury or even put on evidence that competes with the prosecutor’s evidence. In fact the only individuals who are allowed to be present are the prosecutor, the grand jury, a court reporter, material witnesses, and translators as needed. Furthermore, there is no evidentiary bar in grand jury hearings. The grand jury can look at any evidence regardless of its admissibility at trial. Some jurisdictions require prosecutors to present exculpatory evidence to the grand jury, but federal prosecutors have no duty to present exculpatory material to the grand jury. In fact, federal prosecutors are not required to present anything more than what is sufficient to indict.

What she did was wrong…but was it criminal?

Ms. Drew has been charged in federal court with conspiracy and accessing protected computers without authorization to get information used to inflict emotional distress. The prosecutor has already screened this case and determined that there is sufficient probable cause to indict Ms. Drew, even though U.S. Attorney Thomas P. O’Brien has acknowledged this is the first time the federal statute on accessing protected computers has been used in a social-networking case. The prosecutor is not required to apply the “sufficiency of evidence” test. However, as a federal prosecutor, he is bound by a Department of Justice guideline that states he should not prosecute unless he believes that an unbiased finder of fact will find the defendant guilty beyond a reasonable doubt. While it is impossible to examine his subjective belief, he has already met an arguably higher standard by convincing a grand jury that there is probable cause to indict Ms. Drew.

Absent probable cause that the defendant committed a criminal act, the prosecutor absolutely may not charge the defendant with a crime. Moreover, in an ordinary case a prosecutor should not charge without sufficient admissible evidence and a belief that an unbiased juror will find the defendant guilty beyond a reasonable doubt. Obviously, this is no ordinary case.

Rebecca Lonergan, a former federal prosecutor who now teaches law at the University of Southern California, has used the statute in question to file charges in computer hacking and trademark theft cases. She remarked that “[t]he crimes covered by the law involve obtaining information from a computer, not sending messages out to harass someone…here it is the flow of information away from the computer” that is at issue. Additionally, she commented that, “It’s a very creative, aggressive use of the statute, but they may have a legally tough time meeting the elements.”

At the very least, this case highlights a gap between technology and the legislation of criminal conduct. For many settled areas of criminal law, certain conduct may violate more than one provision of what the legislature has deemed criminal. For example, a person who gets in a fistfight with his neighbor in the street may violate criminal statutes for assault, battery, disturbing the peace, and disorderly conduct. In contrast, this is a case that is morally reprehensible, yet by conventional wisdom it is seen as a stretch to prosecute this conduct under criminal statutes. The question that must be asked is this: in a government where the people govern themselves, is this conduct that society is prepared to recognize as criminal?