July 12, 2007
Prosecutors gone wild
David McDade has handed out some 35 copies of a video of teenagers having sex at a party. McDade is no porno kingpin, but a district attorney. And he says Georgia's open-records law leaves him no choice but to release the footage because it was evidence in one of the state's most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers. McDade's actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.
UPDATE: I see two remarkable new posts at Above the Law suggesting that Mr. McDade has a track record that should make good prosecutors cringe:
The saddest part of all this, of course, is that McDade continues to wreck havoc on Georgia justice while Genarlow Wilson remains behind bars. It is a sad shame that Georgia's Attorney General and Governor are far less concerned about the unjustifiable activities of rogue prosecutors than about teenagers' consensual sexual activities.
July 12, 2007 at 08:22 PM | Permalink
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» Wilson Updates from Sex Crimes
There have been a lot of recent posts and articles about the Wilson case. Abyss2hope asks Where are the Wilson Defenders? in analyzing an unusual statutory rape case where the person who reported being the victim is now being called [Read More]
Tracked on Jul 12, 2007 10:49:42 PM
» More on the Wilson Case Tape from Sex Crimes
It looks like the U.S. Attorney for the Northern District of Georgia may have reached the same conclusion I did yesterday:Douglas County District Attorney David McDade has estimated he has given the tape to about three dozen people -- including [Read More]
Tracked on Jul 13, 2007 6:32:18 PM
I hope the feds prosecute him, and give him at least 10 years. Federal law controls over state open records laws. Evidence used in criminal trials must be turned over to the press? Lucky press, they must get tons of drugs sent to 'em. "State law made me violate federal law" is an embarrasing thing for a prosecutor to say. I sure hope the feds go after this pedophile kiddie porn distribution kingpin. Let him share a cell with Genarlow Wilson.
Posted by: bruce | Jul 13, 2007 1:46:12 AM
I am not sure that this even violates Federal law (the AUSA might be wrong). First of all, I have no seen the tape, so I can't be too sure. Secondly, there is probably at least some 1st amendment interest in viewing the tape, since this "Crime" has taken on an extreme amount of political significance.
And, "state law made be violate federal law" actually might be a defense in some areas, especially, if an Open Records Law is meant to implement the 1st amendment. But, we will see.
Posted by: S.cotus | Jul 13, 2007 7:57:32 AM
What I find interesting is that those who seem to support Mr. Wilson's plight are critizing the publication of his crime calling it "distributing child pornography." Does that mean Mr. Wilson produced child pornography or aided and abetted its production in violation of state and federal law. If so, does his ten year sentence sound as unreasonable?
As an aside, it was ridiculous for the DA to release the tape, I doubt he would do it in any other case and high profile cases should not be handled differently even if you are taking some hits in the press.
Posted by: David | Jul 13, 2007 11:01:36 AM
David, You raise an intersting point. But, consider this: just because someone legal does something does not mean that a depiction of it is not a crime. While don't really agree with the concept of obscenity, it is possible to prohibit the sale of certain types of obscene pr0n.
So, for example, let's take the "Extreme Associates" tapes. Assuming the 3d is right (which I don't think it is), it still doens't mean that it is illegal for people to engage in the "pretend" sexual activity depicted on such tapes.
Posted by: S.cotus | Jul 13, 2007 11:50:18 AM
There can't be "some" First Amendment interest in seeing the tape if it qualifies as child pornography. Exceptions for viewing the tape during a legal proceeding are nearly always statutorily enacted. Outside of that, Ferber and its progeny have made clear that child pornography has no First Amendment protection, and I know of no legal doctrine that would say that public interest could somehow create an interest when legally none exists.
Posted by: JustClerk | Jul 13, 2007 12:53:38 PM
Just, I disagree with you there, as the issue is not clear.
NY v. Ferber provides five reasons why child pr0n falls outside First Amendment protections. A number of them do not apply here. 1) The DA did not play a role in creating the pr0n so it is hard to argue that prohibiting state dampens the economic motives for creating more pr0n; 2) while GA has an compelling interest in safeguarding the “victims” they also have a compelling interest in an open-records law (indeed, I think that any statute that protects an extant constitutional right supports that interest); and 3) the DA was not actually engaged in any form of lewd conduct, but was instead engaging in conduct that was a part of his job, and pursuant to several state statutes.
On the other hand, there probably is a valid interest in protecting this “victim” and maybe a valid interest in protecting her privacy.
The statutory exceptions for law enforcement and trials of child pr0n are to protect any law enforcement or 6th amendment interest. That doesn’t mean that there are independent constitutional reasons that still might have vitality.
Posted by: S.cotus | Jul 13, 2007 2:03:36 PM
Keep in mind that if Wilson had possessed the tape, and had been charged with child pornography (as the minor partipants in child porn have been charged), under the federal Walsh Act, he would not be able to get a copy even to mount his defense. Yet apparently the prosecutor in a sex crime can distribute copies of the evidence of said crime far and wide.
Posted by: PG | Jul 13, 2007 2:38:41 PM
Case Name: In re Large, Cal.Sup. , Case #: S127754
Opinion Date: 6/28/2007 , DAR #: 9895
Discretion implies, in some cases, that a legal decision may properly go either way. Appellant was convicted of shoplifting an $18 fanny pack from J.C. Penneys department store and then identifying himself as his brother. Two prior strikes and some prior prison term allegations were found to be true. At the pre-Romero sentencing hearing, the judge imposed the 25-year-to life sentence, while lamenting on the draconian nature of the Three Strikes law scheme. While appellants appeal was pending, Romero was decided. The DCA rejected appellants claim that the judge did not realize that he had the discretion to dismiss a strike. The Supreme Court denied review without prejudice to the filing of a habeas in the sentencing court. Appellant filed the petition and without giving notice, the superior court granted the petition and dismissed a strike. The prosecution filed a petition for writ of mandate and the DCA directed the trial court to set aside the order and hold a hearing with notice. The hearing was held and the judge denied the petition but failed to inform anyone. Two years later, appellant wrote the court and asked what happened to the petition and another judge informed him that judge #1 had denied the petition and was now retired. Appellant wrote again and asked the reason for the denial and received a second hearing with the retired judge who this time dismissed a strike and appellant, having now served the new sentence, was released on parole. The prosecution appealed and the DCA reversed. A further hearing was held, again with judge #1 and all the same parties, and the judge reversed his previous ruling and remanded appellant to prison for life. Appellant sought review by filing a petition in the DCA, arguing that the inconsistency in the trial courts rulings called into question whether the judge was properly exercising his discretion. The DCA denied the writ and the companion Wende appeal and affirmed the judgment. The Supreme Court granted review on appellants complaint that the manner in which the trial court attempted to exercise its discretion presented a due process violation. The Court found that the trial courts different rulings did not reflect an abuse of discretion.
Posted by: George | Jul 13, 2007 4:14:09 PM