On Nov 19, 8:32 am, Deborah Speer <satrn...@sbcglobal.net> wrote:
> Why can't the mother who caused the death of 13-year old Megan Meier by
> posing as another 14-year old to spy on her neighbor be prosecuted in a
> civil court?
Who says she can't? If the victim's family has already or will consult a lawyer, he may find a way to argue that the hoaxer's conduct fits into a category that permits a jury finding of liability under existing MO law. Frex, maybe it constitutes the tort of intentional infliction of emotional distress (IIED). Whether a jury would find it to be so, I don't know. But it's certainly worth it for the family to consult a lawyer and see what their options are.
Just because they haven't sued yet doesn't mean they won't. Cyberspace torts are as you can guess a very new and uncertain area of the law, so I wouldn't be surprised if it took quite a bit of time to research a basis for suit, either under existing law or to build an argument for an extension of existing law to cover new forms of conduct. The tort of IIED, frex, didn't exist until somebody did something completely outrageous that wasn't covered by existing law, the victim of that outrageous conduct sued, lost at trial because there was no currently recognized legal basis for the claim, appealed, and finally got an appellate court to rule in the victim's favor, creating new law in their written, published appellate opinion to recognize such a tort and make such claims available to other similar victims without having to go thru all that. That's one main way the law evolves, through creative lawyering by those brave trial lawyers who are willing to go to bat for a victim who has clearly been wronged but appears to have little chance of success under current law.
> And why couldn't the FBI recover the complete text of the MySpace posts
> that were the cause of the young girl's death?
That's not a legal question, it's mainly a computer-tech question. So maybe the computer gurus on this group will have a better perspective than the lawyers, but I'll take a stab at it. But as a lawyer I can tell you that, first, we have to get as close as we can to the original witness' statements, not conclusory summaries, if we want to have any chance of guessing what really happened. I don't put much stock in blogs, since I have yet to find one I trust to be as reliable as traditional journalism and their info about such public matters is almost always second-hand, based on published news reports, often without citation or attribution so they cannot be cross-checked, and which become more and more garbled each time they are paraphrased and repeated. And the blogs you cite mainly refer back to the Fox News story (not much better IMO) you also cited, or the local paper that apparently first broke the story publicly. This Fox quote appears to be what you are asking about:
"Her father said he found a message the next day from Josh, which he said law enforcement authorities have not been able to retrieve. It told the girl she was a bad person and the world would be better without her, he has said."
Two of the blogs you cite contain links to what appears to be an article in a local paper in St. Charles County, MO where the incident occurred, and that article (which itself may have been the source of the Fox story as well) does contain a little more detail about the data-retrieval issue:
"Later that day, Ron opened his daughter's MySpace account and viewed what he believes to be the final message Megan saw - one the FBI would be unable to retrieve from the hard drive.
* * *
The Meiers say the matter also was investigated by the FBI, which analyzed the family computer and conducted interviews. Ron said a stumbling block is that the FBI was unable to retrieve the electronic messages from Megan's final day, including that final message that only Ron saw."
It sounds from those 2 accounts like law enforcement personnel simply were unable to recover, FROM THE VICTIM'S family computer, the final message from "Josh" that Megan's father saw on the screen after Megan killed herself. One possible explanation is that the father did something inadvertent -- such as turning off the computer, or closing the open Myspace window he saw before the message had been saved to a permanent storage medium such as the hard disk -- that lost whatever evidence was being displayed on their computer screen in volatile memory. But if there is a backup or server file somewhere with "Josh's" postings still on it, I see no reason why the FBI or even local police could not access that data, if they filed for an appropriate warrant claiming it was evidence of specific criminal activity. This is quite different from, e.g. random and warrantless monitoring of ongoing communications of people who have not been charged with or even suspected of any particular crime, as part of the "war on terror".under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (I refuse to call it by its evilly propagandistic short "popular" acronym).
Now, getting back to your original, legal question, CRIMINAL liability is a very different matter from civil liability. In USA, one cannot be convicted of a crime that was not against the law at the time the act was committed; the Constitution prohibits such "ex post facto" laws. An appellate ruling in a civil case, on the other hand, can create new law to cover what the civil defendant did, just like a civiil statute can be specifically made by the legislature to have retroactive effect in appropriate circumstances.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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