Sentencing Law and Policy

Genarlow Wilson faces at least another month in prison

As detailed in this Atlanta Journal-Constitution article, despite a big win in his state habeas action overturning his initial sentence, "Genarlow Wilson will remain behind bars at least until next month, when a judge will decide whether he should be released from prison pending an appeal."  Here are some more details:

Wilson, now 21, moved a step closer to freedom Monday when Monroe County Superior Court Judge Thomas H. Wilson granted his petition to throw out his 10-year prison sentence.  The judge agreed the sentence "would be viewed by society as 'cruel and unusual' in the constitutional sense of disproportionality." The judge also ordered him freed from prison and changed his felony conviction to a misdemeanor without the requirement that he register as a sex offender.

Within hours, however, state Attorney General Thurbert Baker filed notice that he would appeal the ruling to the Georgia Supreme Court.  Baker is arguing the judge overstepped his authority. Several civil rights activists demonstrated outside Baker's office Monday, calling on him to back off his appeal or resign. "I think he should be admired for standing up in the face of all that and doing his job," [Douglas County District Attorney David] McDade said. "His sworn duty is to protect all Georgians."

Related posts will background on the Wilson case:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Genarlow Wilson prevails in state habeas appeal
• Snippets from the Wilson ruling from Georgia
• Georgia AG appeals to keep Genarlow Wilson locked up

Georgia AG appeals to keep Genarlow Wilson locked up

This new CNN article disappointingly reports that the Attorney General of Georgia "quickly filed a notice of appeal, keeping Genarlow Wilson in prison for the time being" in the wake of the state court ruling earlier today reducing his crime and sentence (basics here and here).  Here are more details:

The prosecutor's move brought an abrupt halt to the jubilation Wilson's mother, Juannessa Bennett, and his attorney, B.J. Bernstein, were feeling, and the plans they were making for Bennett to be reunited with her son.  "It is extremely, extremely disturbing that the attorney general would take this action now," Bernstein said, adding that she did not know what message "he's trying to send" or "who he's representing."

In a written statement, Georgia Attorney General Thurbert Baker said he filed the appeal to resolve "clearly erroneous legal issues," saying that while the judge did have the authority to grant habeas relief, he did not have the authority "to reduce or modify the judgment of the trial court."  Separately, Baker noted that Douglas County recently had offered a plea deal "that would have allowed Genarlow Wilson to plead to First Offender Treatment, which would mean that he would not have a criminal record nor would he be subject to registering on the sex offender registry once his sentence had been completed."

I would be interested to hear reactions from current and former prosecutors about the Georgia AG's decision to so swiftly seek an appeal.  I also wonder, if Baker is comfortable with a plea deal that gets close to the same result as the court ruling, why the rush to appeal?

Snippets from the Wilson ruling from Georgia

The Atlanta Journal-Constitution now has this coverage of the state court ruling reducing the crime and sentence of Genarlow Wilson (basics here).  There is a written opinion supporting the rule, and here are inspiring snippets:

In the Petitioner's case, the imposition of the rnandatory minimum 10-year prison sentence without parole and sex offender registration for consensual oral sex between teenagers would be viewed by society as "cruel and unusual" in the constitutional sense of disproportionality, especially in light of Petitioner's having never been convicted of a prior crime....

If this Court, or any Court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish — Justice being served in a fair and equal manner.

When I first heard about the Wilson case last December, I explained here and here why I thought Genarlow had a viable Eighth Amendment claim.  I am glad a state judge in this case agreed.  Now if the state prosecutors could have the good sense not to bother with an appeal.

Genarlow Wilson prevails in state habeas appeal

Good news for folks like me hoping that justice would prevail in the Genarlow Wilson case.  Here is the early report from the AP of today's major development in the case:

A judge on Monday voided a 10-year sentence for a man accused of having consensual oral sex with a 15-year-old girl when he was 17.  He instead gave Genarlow Wilson a 12-month misdemeanor sentence with credit for time already served.  The state is likely to appeal the ruling.

Wilson's original sentence, for aggravated child molestation, was widely criticized on the grounds it was grossly disproportionate to the crime, and state lawmakers later passed a law to close the loophole that led to the 10-year sentence. 

Wilson, now 21, has already served more than 27 months.  He could remain behind bars while the appeal proceeds.

I am not quite sure why (or even how) Wilson can remain incarcerated if he has now been given a sentence that has been fully served.  I suppose there may be a mechanism under state law for prosecutors to stay the sentence change ordered today, but I sure hope Wilson gets his release very soon.  He certainly does not seem like a flight risk or a danger to the community.

Related posts will background on the Wilson case:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Genarlow Wilson seeking state habeas relief
• Genarlow Wilson state habeas appeal update

More strong calls for justice for Genarlow Wilson

Because I was in Atlanta this morning for an Eleventh Circuit argument (reported by the media here and here), I saw the print copy of this extended editorial in the Atlanta Journal-Constitution entitled, "Teen's search for justice: Genarlow Wilson's 10-year sentence for consensual sex ought to be thrown out by judge."  TChris at TalkLeft here discusses the editorial and the fact that former President Jimmy Carter has spoken out in favor of justice for Genarlow.  A ruling on Wilson's state habeas action is expected on Monday.

Recent related posts:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Genarlow Wilson seeking state habeas relief
• Genarlow Wilson state habeas appeal update

Genarlow Wilson state habeas appeal update

A scheduled hearing on Genarlow Wilson's state habeas action has the Atlanta Journal-Constitution again discussing this remarkable case with this article, entitled "Sex landed him in prison; will petition bail him out?", and this op-ed by columnist Cynthia Tucker, entitled "Genarlow Wilson should be free."  For a lot more background, check out these prior posts about the case:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Genarlow Wilson seeking state habeas relief

UPDATE:  This AP story provides a brief account of the argument in the Wilson case today, but it has no information about whether and when a ruling on the merits might be forthcoming.

MORE:  This updated AP piece indicates that the state judge "says he'll make a decision by Monday in the case of a Georgia man who was sentenced to 10 years in prison for having consensual oral sex with a 15-year-old when he was two years older than she was."

Will Genarlow Wilson get Duke justice?

The sad Genarlow Wilson case from Georgia (background here and here and here) is generating more press in the wake of the upstanding way in which North Carolina's Attorney General admitted mistakes in the Duke case.  Here is some of the latest coverage and commentary:

• From the New York Times, "Dropped Duke Charges Renew Hope in Georgia"
• From the Atlanta Journal-Constitution, "Break legal ranks to right a wrong"

Some recent related posts:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Genarlow Wilson seeking state habeas relief

Genarlow Wilson seeking state habeas relief

The sad Genarlow Wilson case from Georgia (background here and here) is back in the news because, as detailed in this news story, Wilson's lawyer, BJ Bernstein "filed a petition for writ of habeas corpus Thursday with the Superior Court of Monroe County."  In addition, as detailed on this website, advocates for Wilson are hoping to leverage the events in the Duke rape case to get justice for Wilson.  Here's what the website says:

Yesterday we saw the Attorney General of North Carolina step forward as the chief law enforcement officer to correct an injustice by a district attorney in the Duke rape case. Genarlow Wilson now appeals to the Attorney General of Georgia, Thurbert Baker to use his power to act justly, and review and consent to Wilson's habeas petition.  As the guardian of justice in this State, we appeal to him to correct this grave injustice.

Makes sense to me.

Some recent related posts:

• ESPN effectively covers Genarlow Wilson's sad saga
• CNN covers Genarlow Wilson case, who's next?
• Why isn't the severe Georgia sentence constitutionally problematic?
• Provocative questions about Georgia sentencing injustice
• The nuance in my provocation
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• More attention for Genarlow Wilson

More attention for Genarlow Wilson

I am pleased to see continued major media coverage of Genarlow Wilson's case (prior examples here and here).  Here are too more pieces complaining about the extreme sentence Wilson is serving for a consentual sexual encounter with another teenager:

• This item at the Washington Post entitled "Perverted Justice: Updating the Genarlow Wilson Tragedy; Georgia Legislature Snoozes and a Promising Teen Loses."

• This piece from syndicated columnist Leonard Pitts entitled "Still waiting for common sense in Georgia."

A new website inspired by Genarlow Wilson

I have not blogged about the Genarlow Wilson case much lately because there has not been much to report.  Despite a flurry of media coverage calling for Wilson's release (details here and here), Georgia officials have not responded and Wilson is now deep into his third year in prison serving a 10-year sentence for a crime that Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment.

Meanwhile, Wilson's case has inspired the creation of a new non-profit organizarion called "My 5th," which has this intriguing new website.  The website's home page states, "With this website, blog and workshops, MY 5th wants to prevent you from paying the price for not knowing the law!!!! Use the law, don't let it use you!!!".  An intriguing and diverse set of individuals are on My 5th's board, and Wilson's lawyer is listed as the president and founder of the organization.  Not suprisingly, Wilson's case is featured here on the My 5th site.

Some related Genarlow Wilson posts:

• Will the Georgia legislature help Genarlow Wilson get justice?
• CNN covers Genarlow Wilson case, who's next?
• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• CNN with additional coverage of Genarlow Wilson case
• Ugly debate in Wilson case

A Texas juve case creating controversy

Thanks to posts at TalkLeft and Grits for Breakfast, I have become away of a controversial case of seemingly unduly severe juvenile punishment coming out of Texas.  This AP story has these highlights:

A teenager has been jailed for more than a year for shoving a teacher's aide at her high school, sparking anger and heightening racial tensions in rural East Texas.  Shaquandra Cotton, now 15, claims the teacher's aide pushed her first and would not let her enter school before the morning bell in 2005.

A jury convicted her in March 2006 on a felony count of shoving a public servant, who was not seriously injured.  The girl is in the Ron Jackson Correctional Complex in Brownwood, about 300 miles from her home in Paris....  Under the sentence handed down by Lamar County Judge Chuck Superville, she will remain at the facility until she meets state rehabilitation standards or reaches her 21st birthday.

But her family and civil rights activists say they want her home now. They are condemning the sentence as unusually harsh and say it shows a justice system that punishes young offenders differently, depending on their race.  Creola Cotton, Shaquandra's mother, and activists argue that while Superville sent Shaquandra to the state's juvenile prison system, he gave a white 14-year-old arsonist probation. As many as 400 people marched and rallied in Paris on Tuesday, the second such protest in as many weeks by civil rights groups.

Meanwhile, the Paris school district fiercely denied claims of racism and chided the girl's mother for "playing a game" to start controversy.... Creola Cotton is preventing the district from fairly defending itself by refusing to let the school district make her daughter's entire record public, [Paris school district attorney Dennis] Eichelbaum said. "Mrs. Cotton has been wrongfully attacking the character of the district," Eichelbaum said. "She's being disingenuous with regard to her daughter being an innocent child."...

Prosecutors say they offered Shaquandra a plea agreement that would have reduced the felony charge to a misdemeanor and given her two years' probation.  But Creola Cotton rejected the plea behalf of her daughter, prosecutors said.

The Dallas South Blog, whose author Shawn Williams comes from Paris, Texas, offers lots of comments on the case here and here and here.  Also, there is a blog, Free Shaquanda Cotton, which pleads "Please help me, Shaquanda Cotton, receive proper justice. Leave me notes of encouragement, donate to my trust fund, and spread the word!"  That blog has links to other media coverage of this case.

Request for hearings on the border agent case

According to this (partisan?) news report, "[t]hirty-eight Republican congressmen have written to Speaker of the House Nancy Pelosi asking for hearings to investigate the prosecution of Border Patrol agents Ignacio Ramos and Jose Compean, who are in prison for their actions in the shooting of a drug smuggler given immunity to testify against them."  Here are more details:

The sharply worded letter, sent Tuesday, is critical of the prosecutor, U.S. Attorney Johnny Sutton, and federal investigators. The congressmen say "serious questions remain unanswered by our federal government over the apparently misguided prosecution of two distinguished U.S. Border Patrol Agents, Ignacio Ramos and Jose Compean."  The letter further charges that relevant federal agencies have "delayed or denied" congressional requests for information and that "certain federal investigators have even misled us about the case."...

The letter also was addressed to Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee; Rep. Bennie Thompson, D-Miss., chairman of the House Homeland Security Committee; and Rep. Henry Waxman, D-Calif., chairman of the House Oversight & Government Reform Committee. Among the Republican signatories are Reps. Ted Poe and John Culberson of Texas; Duncan Hunter, Dana Rohrabacher and Mary Bono of California; Dan Burton of Indiana; Frank Wolf of Virginia; and Tom Tancredo of Colorado.

As WND reported, Sen. Patrick Leahy, D-Vt., has given Sen. Dianne Feinstein, D-Calif., permission to investigate the prosecution and sentencing of Compean and Ramos.  Feinstein, who said she believes the sentences were "extreme," has postponed the Senate hearings, originally scheduled for Feb. 27.

Some recent related posts:

• Senator Feinstein jumps into border agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Perhaps if Justices Kennedy and Breyer realized the world cares a lot...

about the cert denial in Berger (details here and here), the outcome might have been different.  Of course, notwithstanding Justice Kennedy's opinion in Roper and Justice Breyer's willingness to defend reliance on foreign precedents, it is unfair to assert that they would have voted for cert if they knew the cert denied would garner international attention.  (Moreover, it is possible that both Justices voted for cert but that there weren't enough other votes.) 

Nevertheless, I think it is notable that this afternoon I have been contacted by two members of the foreign press to talk about the Berger case.  Specifically, I just finished a long interview with a reporter from Brazil's Vision magazine, and in a few hours I will have the honor of doing an interview with BBC Radio 5Live, which is part of national talk radio in the UK.   (Perhaps this is a variation on the Greenhouse effect, since I believe Linda Greenhouse's kind use of my quote in her Berger story has led to my 15 seconds of international fame.)

Some related posts on the Berger case:

• Notable cert news from SCOTUS
• More on the cert denied in Berger
• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• Analogizing extreme punitive damages and extreme punitive sentences
• Arizona Supreme Court upholds 200-year sentence for possessing child porn

More on the cert denied in Berger

Thanks to How Appealing, I see that the AP has a short piece and Reuters has a longer piece on the Berger cert denial.  (The case involves first-offender Morton Berger challenging his 200-year prison sentence for possessing child pornography (basics here, commentary here).)

In this earlier post I suggested that, though cert was denied today in the Berger case (recently discussed here), some Ninth Circuit precedents should perhaps give Morton Berger some hope for a federal habeas action.  But Orin and Kent in the comments rightly note that Morton Berger's case faces additional hurdle in habeas: the statutory limits on granting relief set out in the AEDPA.  (Of course, the Ninth Circuit has been know to find ways around AEDPA.  But it was because of habeas headaches that I believed SCOTUS should take up Berger's case on direct review.)

So here is my question to Orin and Kent and anyone else interested in playing along: 

What should Berger and his lawyer do now? 

Since Berger has already lost in the Arizona Supreme Court, I doubt state collateral review is likely to be successful.  I suppose Berger could and should seek a commutation from the Arizona governor or a retroactive change in the law from the Arizona legislature, but the Genarlow Wilson saga highlights that other branches are not so good at doing justice in cases of extreme sentencing.  So, is the cert denial the end of the line for Berger?

Another chance for cert in Berger

In my punitive damages commentary here and here after the SCOTUS Philip Morris decision, I have suggested that Justices eager to constitutionally second-guess some harsh corporate punishments should also be willing to constitutionally second-guess some harsh individual punishments.  And a case now being reviewed by the Court — in which first-offender Morton Berger challenges his 200-year prison sentence for possessing child pornography (basics here, commentary here) — presents a unique opportunity for the Court (and its new Justices) to grapple with its confusing non-capital Eighth Amendment jurisprudence.

As detailed in this docket sheet, the Berger case was discussed by the Justices at conference last week and is now slated to be discussed again today.  For various reasons developed in prior posts, the Berger case seems like a great vehicle for the Court to explore its doctrines on what constitutes cruel and unusual punishment:

• What are the odds of a cert grant in Berger?
• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• Analogizing extreme punitive damages and extreme punitive sentences
• Might Berger get SCOTUS attention?
• Arizona Supreme Court upholds 200-year sentence for possessing child porn
• What ever happened to state constitutional law, textualism, and libertarianism?
• Liberty versus security in the war on ... sex offenders

Latest news and thoughts on Genarlow Wilson

ABC News has this long piece with background and the latest developments in the Genarlow Wilson saga.  The piece has me thinking again about the legality of Wilson's continued service of a 10-year prison sentence even though the Georgia legislature subsequently "reclassified Wilson's offense from a felony to a misdemeanor" for which the harshest sentence is a year in jail.

Consider this analogy.  Suppose the Maryland legislature repeals the state's death penalty, but does not address what to do about the nine persons current on Maryland's death row.  Would it be proper (or constitutional) for prosecutors to still seek the execution of these nine previously-convicted capital offenders? 

If it feels very wrong to imagine seeking the execution of previously convicted capital defendants after a legislative repeal of the death penalty, Genarlow Wilson's continued imprisonment should also feel very wrong.  Wilson has already served twice as long a sentence as Georgia law now currently provides for his crime.  I view continuing to imprison Wilson based on a conviction with a now-repealed sentencing term to be analogous to trying to execute a capital defendant even after a repeal of the death penalty.

Some related Genarlow Wilson posts:

• Will the Georgia legislature help Genarlow Wilson get justice?
• CNN covers Genarlow Wilson case, who's next?
• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• CNN with additional coverage of Genarlow Wilson case
• Ugly debate in Wilson case

UPDATE:  A loyal reader points to 1 U.S.C. § 109, a provision of federal law that states:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

I guess that means that, in 2009, if President Hillary Clinton signs a bill passed by Congress to repeal the federal death penalty, Attorney General Bill Clinton can and should still seek the execution of the roughly 50 defendants on federal death row unless that legislation expressly provides for a different sentence for these previously convicted capital killers.

Analogizing extreme punitive damages and extreme punitive sentences

My take on the Philip Morris decision has already generated many thoughtful comments, which prompt me to develop a bit more the analogies I see between extreme punitive damages and extreme punitive sentences.  Here goes:

1.  Both punitive schemes are authorized by legislatures.  Before a jury can impose extreme punitive damages, such damages have to be directly authorized or at least indirectly permitted by legislatures.  Legislatures can put caps on punitive damages.  The dissenters in Philip Morris likely believe that limits on punitive damages should come from democratic lawmaking and not from judicial constitutional creation.

2.  Extreme punitive outcomes are the product of case-specific decisionmakers gone wild.  Extreme punitive damages awards are typically the product of a particular jury deciding to bring the hammer down on a particular tortfeasor it does not like (for good or bad reasons).  Extreme punitive sentences are typically the product of a particular prosecutor deciding to bring the hammer down on a particular offender it does not like(for good or bad reasons). 

3.  The deep harms of extreme outcomes may come from the pressure to settle/plea.  A judgment of $80 million probably does not cause much of a blip in most major corporate balance sheets.  But, extreme awards drive up the costs of litigation and produce pressure on corporations to settle weak cases rather than run the risk of out-of-whack punitive damages.  Similarly, a harm of extreme sentences is that they are only imposed on defendants exercising their trial rights and ticking off prosecutors seeking a plea (see, e.g., Berger and Wilson and the border agent cases and just about every other out-of-whack criminal sentence).

4.  Judicial moderation of both types of extreme outcomes seems warranted in light of the Bill of Rights.  For the record, I am comfortable with some judicial regulation of extreme punitive damages awards.  Extreme out-of-whack jury awards surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.  Extreme out-of-whack sentences surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.

Activist liberty: second guessing corporate punishment by state juries and courts in Philip Morris

I have never quite understood Justice Breyer's concept of active liberty, especially since the concept seems hard to square with Justice Breyer's antipathy toward the Apprendi-Blakely line of constitutional decisions.  And Justice Breyer's majority opinion for an unusual coalition of justices in the Philip Morris punitive damages case does not help me understand his vision constitutional adjudication.  But, I do understand some other important realities after Philip Morris:

1.   At least five members of the Supreme Court remain willing and perhaps eager to place significant constitutional limitations through the Due Process Clause on punitive damages awards.  And, since Justice Stevens notes that there is "little difference between the justification for a criminal sanction, such as a fine or a term of imprisonment, and an award of punitive damages," criminal defense attorney might look for ways to use Philip Morris when attacking certain sentencing outcomes.

2.  Philip Morris champions federal judicial regulatory power over the authority of state juries and courts.  In Philip Morris, a state jury decided that a corporation deserved to be punished to the tune of $79.5 million; Oregon state courts ultimately found this punishment to be justifiable.  But the five members of the Supreme Court essentially overruled these judgments while announcing a new judicially-created constitutional limit on punitive damages awards.

3.  The five Justice in the Philip Morris majority includes both Chief Justice Roberts and Justice Alito, but neither Justice Scalia or Justice Thomas.  If President Bush's goal truly was to appoint justices in the mold of Scalia and Thomas, Philip Morris would suggest he failed. 

4.  As I suggest in my initial post on Philip Morris, it remains to be seen if the five Justices who are prepared to constitutionally second-guess certain instances of harsh corporate punishment might also be willing to sometimes constitutionally second-guess certain instances of harsh individual punishment.

SCOTUS continues to regulate corporate punishment

As detailed in this AP article and this early report from SCOTUSblog, the Supreme Court has ruled "that it is unconstitutional for a jury to award punitive damages out of a desire to punish a company for harming individuals other than those directly involved in the lawsuit in Philip Morris USA v. Williams Estate (05-1256)." 

I hope that the Court's continuing willingness to declare unconstitutional specific instances of excessive corporate punishment might, in some way, get extended to its review of cases involving excessive individual punishment.

Ugly debate in Wilson case

Instead of dealing with the fact that Genarlow Wilson is serving a 10-year sentence for a crime that the Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment, the Georgia legislature is caught up in ugly name calling about Wilson's case.  Here's are some of the details from this news article:

A war of words has erupted over the highly publicized case of a Douglas County teenager sentenced to 10 years in prison for having consensual sex with a minor. Georgia Senate President Pro Tempore Eric Johnson (R-Savannah) released a column Sunday about the case of Genarlow Wilson, the day after he figured prominently in a CNN piece about Wilson....

Johnson, in an interview Monday, said Wilson is "choosing martyrdom," rather than take a plea deal.  Johnson dismissed [Wilson lawyer] Bernstein's criticisms.  "She's hired a publicist, got a Web site and is raising money," Johnson said of Bernstein. "As long as she can use any — whether it's the bill, or whether it's a press conference or whether it's an op-ed — to generate publicity and go on national TV, she will.  She is trying this case in the media because she lost it in court."