Georgia Supreme Court Hears 2 Appeals in Teenage Sex Case

[struggle4progress]

By BRENDA GOODMAN
Published: July 21, 2007

ATLANTA, July 20 — Only a few observers usually show up for arguments before the Georgia Supreme Court. But the gallery was packed on Friday as the seven justices heard two expedited appeals on behalf of a young man serving a mandatory 10-year sentence for having had consensual oral sex with a 15-year-old girl at a New Year’s Eve party in 2003. ~snip~

Mr. Wilson, who was 17 at the time of the party, has served two years of the mandatory minimum sentence, which was so harsh it shocked even the jury members who convicted him. State law also requires that Mr. Wilson be listed as a sex offender for the rest of his life. The two appeals the court heard Friday dealt with whether Mr. Wilson’s sentence was constitutional and whether he is eligible for bond as his appeal moves through the legal system.

In June, a county judge ordered Mr. Wilson’s release after changing his sentence from a felony one to a misdemeanor and resentencing him in ruling on a habeas corpus petition.

But Georgia’s senior assistant attorney general, Paula K. Smith, argued that Mr. Wilson should be kept behind bars because the judge had made a procedural error by taking those actions, powers not granted to a judge ruling on such a petition. ~snip~

http://www.nytimes.com/2007/07/21/us/21rape.html?em&ex=1185163200&en=58ec9c3500f7b7c7&ei=5087%0A

[PDJane]

1. What a waste of time and life......

And the folks responsible should be held accountable, IMHO.

[democratsin08]

2. yikes

he should be released immediately

[napi21]

3. Do you know how long the Ga. SC usually takes to render their opinion?

I have sent emails to Sonny and the Ga. legislature in an attempt to help this young guy, but I was sort of blown off by all of them. I'm still having a hard time understanding why the legislature didn't make this new law retroactive. That seems to be everybody's problem. I even had one guy tello me that the legislature was adamant about NOT making it retro! I don't understand.

[MonkeyFunk]

4. I heard a talking head yesterday

say the decision would likely come some time in September.

[regnaD kciN]

5. Sorry to say it, but I don't think he has a leg to stand on...

He was convicted of aggravated child molestation, a felony. According to Georgia law, the circumstances of the case fit that law. The law may be ridiculous, but it's still the law.

He was sentenced, under the mandatory minimum sentencing for that crime, to ten years in jail. The mandatory minimum sentence may be ridiculous, but it's still the law.

The legislature later dropped the crime to a misdemeanor, but declined to make it retroactive. That was their prerogative. Since they refused to make that change, the felony conviction and sentence remains in effect. The legislature's refusal to make the law retroactive may be ridiculous, but it's still the law.

He caught a break when a judge decided, on his own authority, to make the change in the law retroactive (against the intention of the legislature) and change the verdict to conviction on a misdemeanor. The Attorney General appealed, and prevented him from being released on bond during the appeal. For that, the A.G. caught a lot of flak...but he's completely correct. No judge has the right to decide to change the crime from the one the perpetrator was charged and convicted under to a newer one he feels is more appropriate. That's legislating from the bench, and it's completely out-of-bounds. It may seem decent in this case, but what if a judge were to act in a similar manner, and substitute a harsher charge (say, an anti-war demonstrator convicted on a charge of resisting arrest appeals, and the Bush-appointed judge decides to uphold the conviction, but change the charge to attempted murder of a police officer)? It was a case of favoring emotion over the specific words of the law, which is precisely what a judge is forbidden to do.

I think Mr. Wilson is a victim of an unfair law, but I can't see how the Supreme Court can do anything other than uphold his original conviction and sentence. He was tried, convicted, and sentenced properly under the laws of the time. (As a matter of fact, the judge in the original trial had no leeway to make his sentence lower than the legal minimum.) He tried to get the legislature to intervene in his favor, and failed. Barring any new evidence that shows he was not guilty of receiving oral sex from a 15-year-old, or procedural errors during his trial, there are really no grounds for appeal. ("It's not faaaaaair!" not being sufficient grounds to overturn a legally-enacted minimum mandatory sentence, no matter how loudly his supporters may scream it.) Sad to say, I think his only option will be in convincing the governor to issue a pardon or commutation -- which is a longshot at best.

What this case really says is that we need to seriously look at the laws we enact. I'm sure the law under which he was convicted came about because of a popular outcry about "protecting our innocent daughters." I'd also bet the minimum sentencing requirements came about because of a similar outcry about "criminals being let off with a slap on the wrist." Well, people got what they asked for, and now they find it unfair...but probably unchangeable. Let that be a lesson to us all. It's too bad Genarlow Wilson has to pay the price for that lesson.

[napi21]

6. Unfortunately I think you're right. However, the Ga. SC CAN rule in

his favor. I can see a majority of that court interpreting the change in the law to a misdemeanor as correct and stating if it's a misdemeanor today, it couldn't have been a felony 5 years ago. I don't really believe that will happen, but it could.

[regnaD kciN]

8. But if that happened...

...it would set a precedent that would allow other crimes to have their status changed by a future court willy-nilly. And there's no reason to suspect that, should that occur, all of those future changes would be in the direction of greater leniency.

Either you follow the law or you make it up as you go along. And I think we've seen -- from Florida in 2000, and from the non-observance of stare descis over the most recent SCOTUS session -- what can happen when justices choose the latter course.

[struggle4progress]

7. I dunno. The legislature quite clearly did not originally intend the statute

under which Genarlow was convicted to be applied to such cases, and in fact the legislature actually changed the statute in response to the Genarlow case. That the change was not retroactive is odd, in that context, but the context remains. And there is the reasonable constitutional question, then, of whether the punishment is at all appropriate for the "crime."

That the DA was in some sense "powerless" to do other than he did, is a completely dishonest arguments. DAs typically enjoy wide latitude in deciding which charges to prefer, and in this case the DA was vindictive in the extreme, perhaps as a way of showing himself "tough" in alleged sexual misconduct cases, which might have been politically important to the particular DA involved, since that DA had himself been accused of sexual misconduct on several prior occasions.

"Legislating from the bench" therefore seems a strange accusation to level against the judge who handled the appeal earlier, since seems to have recognized that the legislature itself had indicated that such an application of the law was inappropriate

[regnaD kciN]

9. But, as you yourself admit, the legislature...

...had the option of making the change retroactive, and explicitly chose not to do so. I would argue that stands as about as clear an indication of "legislative intent" as you could ask for concerning this particular situation.

And I did not say that the DA (by which I assume you meant the prosecutor in the original case) was powerless to choose whether or not to prosecute. What I said was that the original judge was powerless, once the jury returned its guilty verdict (and is there even any question that the accused was guilty of violating the law in force at the time?), to sentence Wilson to anything less than ten years in prison.

Now, the Attorney General may have had the leeway to decide not to appeal the case after the second judge changed the conviction from a felony to a misdemeanor. But, although it would have been the "merciful" thing to do on behalf of the young man, I don't think it would have been the right thing to do -- for, then, it would open the door to the principle of an appeals court judge being able, on his or her own whim, to change the written law as he or she sees fit. And I don't think the injustice of Genarlow Wilson having to serve the sentence -- however strict -- deemed appropriate for the crime he committed at the time he committed it is any worse than what may come in the judicial anarchy that would result should the notion take hold that judges can re-define any crime that was the subject of a previous trial any time they feel it appropriate.

As I said before, I wish all the energy that's going into protesting Wilson's sentence was transformed into pressure on the Governor to issue a pardon or commutation. Even if the Governor is disinclined to issue a full pardon, it is certainly within the his rights to commute Wilson's sentence to that which would be served by someone convicted of the same crime today (and which, I believe, would release him at once and save him from having to register as a sex offender). I don't, however, believe it is within an appeals court judge's rights to do the same.

[struggle4progress]

10. The governor for the state in question does not have commutation authority

And of course the spectre of "judicial anarchy" is simply ridiculous: it's the crap I hear from wingnuts who want to support (say) the Scalia doctrine that actual innocence shouldn't obstruct a procedurally flawless death sentence. Public confidence in the criminal justice system really depends on the public perception that the aims of justice are served, not on an Eichmann-like adherence to idiotic literalism.

[napi21]

11. I did write to Sonny Perdue, NOT aboutissuing a pardon, he does

not have that authority, but about "havine a talk with his AG, who IMO could have easily been working on something else...if you know what I mean. The Gov.'s response answered the question I didn't ask, which of course was "I don't have the authority to issue pardons."

I accept the fact that the Judge was bound by the mandatory sentencing laws, but there are ALWAYS at least some personal decisions made in every case regarding what charges to persue, and how far a prosecutor is going to push. It sure looks like one or more people were out for bolld in this case.