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January 26, 2007

Will the Georgia legislature help Genarlow Wilson get justice?

According to this new article, there is some possible legislative action afoot in Genarlow Wilson case from Georgia (sad details here).  Here are the highlights:

State Sen. Emanuel Jones, D-Decatur, [has] introduced legislation that he said he hopes would allow a judge to re-sentence Wilson under the more lenient sentencing provision.

Since the state Supreme Court issued its Dec. 15 ruling, the case has become a bit of a cause célèbre, with The New York Times publishing an editorial calling for Wilson's release and the The Atlanta Journal-Constitution saying Wilson deserves "justice," not "condolences."  Thursday morning, ESPN.com's top story was an in-depth report on the legal case of the former high school football player, headlined "Outrageous Injustice."

"I read the editorials, I again went back and reviewed the comments from Justice Hunstein, and I said I would make it my … work this session to get him out of prison," said Jones. He added that he has bipartisan support, and one of his co-sponsors is Sen. Dan Weber, R-Dunwoody.... Senate Judiciary Committee Vice Chairman Seth Harp, R-Midland, said Thursday that he wanted to study the bill and its ramifications before determining his position on it.

Though I am encouraged some Georgia legislators are looking for solutions, I continue to be deeply troubled and mystified that there isn't more pressure being placed on executive branch officials to do justice for Genarlow Wilson.  Recall this passage from the ESPN article:

"We can set aside his sentence," [prosecutor Eddie] Barker says. "Legally, it's still possible for us to set aside his sentence and give him a new sentence to a lesser charge.  But it's up to us. He has no control over it." The position of Barker and the district attorney, McDade, who refused to comment, is that Wilson is guilty under the law and there is no room for mercy, though the facts seem to say they simply chose not to give it to Wilson.

What I find depressing (and what confirms the impact of race and class) is the contrast we see in reaction to this case and the Duke lacrosse case.  In the Duke case, as detailed here, prosecutor Michael Nifong may be disbarred for purported "systematic abuse of prosecutorial discretion" simply because of the way he filed charges.  In the Wilson case, in sad contrast, no one is even seriously questioning the prosecutors about their refusal to exercise their discretion to achieve justice.

UPDATE:  A few commentors have already reacted strongly to my suggestion that distinct reactions to prosecutorial behavior shows the impact of race and class. 

Please understand that I am not arguing that that the actions of Nifong and Barker/McDade are legally, morally or ethically parallel in any way.  Rather, I am simply trying to note that when a NC prosecutor over-zealously prosecutes rich white kids, his decisions are question by the whole world; but when GA prosecutors continue to over-zealously prosecute a less-affluent black kid, far fewer questions are asked.  My chief point is that, as Mike Connelly explains here, we ought to be much more willing to question the exercise of prosecutorial discretion in all cases (like Republican legislators are now doing in the border shooting case.)

January 26, 2007 at 09:21 AM | Permalink


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There's also this passage from the ESPN article, apparently referring to the same thing:

The legislature still could pass a new law that would secure Wilson's freedom, so Bernstein is pushing hard for that. One such bipartisan bill was introduced this week, pushed by state Sens. Emanuel Jones, Dan Weber and Kasim Reed. This is Wilson's best shot.

Posted by: | Jan 26, 2007 9:25:59 AM

Nifong quite possibly broke the law by refusing to turn over evidence, making almost certainly false statements about the guilt of the defendants and horridness of the alleged crime, and rigging a police lineup.

The prosecutor in Georgia has insanely and overzealously followed the letter of the law.

This has nothing to do with race or class. You can certainly see the problems in punishing a DA for following the letter of the law, and certainly punishing him to the extent of a DA who quite possibly violated prosecutorial rules and the law is absurd.

I'm a student.

Posted by: R | Jan 26, 2007 10:01:18 AM

DB, your "race and class" is completely unfair. I won't rehash my previous commentary about Mr. Wilson. Suffice it to say that I think that he's done enough time, but that he is not entirely blameless for the situation in which he finds himself.

There is no suggestion that the prosecutor in this case is racially biased and no suggestion that Mr. Wilson is being treated differently because of his race, and it is ugly indeed to suggest otherwise without the facts.

On the other hand, it is quite plain for anyone to see that Nifong has acted without any regard for ethics.

Posted by: federalist | Jan 26, 2007 10:01:25 AM

Not sure I follow your reasoning about race and class being a factor, especially in comparing the Georgia case with the Duke case. Nifong violated several ethical rules, even before it surfaced that he witheld clearly exculpatory evidence. His violation was not that he pursued a harsh charge against a factually sympathetic victim, but that he blabbed to the press and witheld exculpatory evidence.

In the Ga. case, the comment you cite from the prosecutor is simply factual: the prosecution has the discretion to act differently, but chooses not to. There is not the slightest ethical implication to that exercize of discretion. Your complaint is better directed against the legislature, which made the law, not the prosecutor, who merely chooses to enforce it. If his exercize of discretion is viewed as inappropriate, the redress is not through the state bar, but by the people of his jurisdiction who will let him know in the next election what they think about his use of discretion.

In sum, the two cases are apples and oranges: In GA, there is no breach of legal ethics (as opposed to a discretionary exercize you disagree with). In the Nifong situation, there definitely seems to be an ethical breach, because, unlike in the GA case, the evidence did not support the charge to begin with, and the prosecutor apparently knew that.

Posted by: Tom McKenna | Jan 26, 2007 10:02:06 AM

"factually sympathetic defendant" not victim.

Posted by: Tom McKenna | Jan 26, 2007 10:03:31 AM

I see now that DB was just asking why "no one is even seriously questioning the prosecutors about their refusal to exercise their discretion." He's not suggesting the Nifong and Georgia cases are really similar.

But in that case, I think a lot of people are seriously questioning the prosecutors on this subject, as well as the legislature, jury, trial judge, Supreme court. I think everyone is.

Posted by: R | Jan 26, 2007 10:06:59 AM

I'm puzzled by the second quoted passage in the post. Is the DA able or unable to reduce Wilson's sentence?

Posted by: | Jan 26, 2007 10:08:47 AM

I'm puzzled by the second quoted passage in the post. Is the DA able or unable to reduce Wilson's sentence?

As I understand it, in return for dropping the charge, the DA wants Wilson to plead guilty to a lesser charge that still carries significant penalties.

Posted by: Marc Shepherd | Jan 26, 2007 10:22:14 AM

Tom said: "In the Ga. case...the prosecution has the discretion to act differently, but chooses not to. There is not the slightest ethical implication to that exercize of discretion."

Really? Not the slightest ethical implication in refusing to act? I'll remember that the next time I see a woman being assaulted on the street and walk past, doing nothing.

Posted by: Anon | Jan 26, 2007 10:27:12 AM

Now I know why I hate this system. No matter what anybody say about injustices on people of color, they always find extreme cases to support their argument and pretends that people of color are treated fairly. Geez, what it going to take to wake you people up????

Posted by: Ali | Jan 26, 2007 11:31:45 AM


I'm talking about that oxymoron called "legal ethics"... the prosecutor does not violate legal ethics by pursuing a conviction like this one. Whether you think it was the morally or prudentially correct decision is entirely open to reasonable question: I think even if he refused to plead guilty, I would have dropped the mandatory charge. My understanding is there were other charges just as easily provable.

But I'm not the DA in that jurisdiction and I don't have to answer to the people who elect me.

Posted by: Tom McKenna | Jan 26, 2007 11:44:51 AM

The professor's new argument still doesn't hold water. The Duke case is garnering more "questions" because the initial alleged crime provoked outrage. That outrage lessened, but also refocused on Nifong, when the prosecution was exposed as a sham.

Here, there's a lot of outrage about the prosecutor's actions, but the case is less well known because liberal activists weren't out there being outraged by the "crime" Wilson committed.

Nifong's indiscretion is receiving more attention because liberals wanted to make a point about the racism and classism at Duke and elsewhere, and it backfired in their face. That hardly means that the Duke defendants lucked out because of their race or class--the only reason Nifong wanted to drag out this prosecution so long was because of their white skin and wealth amid his relatively poor, black constituents.

Of people who have heard of the Wilson case, almost all are angry with the prosecutor. If the NAACP had spent more time on this case and less time trying to defend Nifong's failing prosecution, perhaps Wilson would have gotten more attention earlier.

The different attention received by these stories is not due to white or wealth privilege. That being said, we should obviously free Wilson now.

Posted by: R | Jan 26, 2007 11:48:54 AM

Ali, how would you explain the relative lenience in urban areas, which tends to benefit criminals of color (to the detriment of law-abiding people of color)? Race and the criminal justice system is a very complicated picture.

James Burmeister escaped death because of racial sympathy. But so do a lot of black defendants.

Posted by: federalist | Jan 26, 2007 12:47:47 PM

Tom, legal and moral culpability sometimes go together. Not doing anything, when you know you could and maybe think you should, violates just as many legal ethical standards as it does moral standards.

I would have more respect for the prosecutor if he just stood up and said, "This is the right result. This guy deserves exactly what he got." Then we could have an argument over whether that's right or not. But this wishy-washy, "oh, we could do something, and we agreed this is a little harsh, and if only he'd taken our pleas bargain..." mumbo-jumbo is junk.

Posted by: A | Jan 26, 2007 2:16:16 PM


Are you really saying that it is legally unethical to prosecute a charge that can be proven beyond a reasonable doubt simply because many, including perhaps the prosecutor himself, may think the otherwise consitutional and legislatively mandated sentence - that covers the conduct - is too harsh?

You sure have a silly sense of legal ethics. A poor exercise of prosecutorial discretion perhaps. A violation of our ethical responsibilities as lawyers. Are you crazy?

A prosecutor

Posted by: David | Jan 27, 2007 1:24:05 AM

A prosecutor is bound to follow "the law" but he is also bound by his own sense of ethics to not follow the law if he thinks it might be wrong. Prosecutors by nature do not choose B over A very often, if ever, preferring to rely on "the law" rather than a "true" sense of right and wrong.
T or F?

Posted by: Mr. Habeas | Jan 27, 2007 5:50:15 AM

So then, why should not asserting one's own sense of right/wrong be the ethical boundary that should be drawn for the profession? Personally, I think maybe it should. Why should the law allow you to legally do the right thing while morally or ethically knowing that that was wrong?

Posted by: Mr. Habeas | Jan 27, 2007 5:55:26 AM


False. With that kind of logic what would stop me from not following "the law" to acheive an end result that I thought was right.

This issue is rather simple. Our legal ethics are rules, written out, that we must live by. Our ethics as lawyers and prosecutors are set out by our own personal standards and hopefully guided by the elected District Attorney who does have to answer to the voters.

Posted by: David | Jan 27, 2007 10:59:41 AM

The Wilson case is strong evidence that juries should be told about nullification. If juries knew they could nullify, Genarlow would not be in the mess he is in now.

Posted by: William Jockusch | Jan 27, 2007 10:17:55 PM

DB, your update doesn't really cut it. The Duke 3 case started off with huge media coverage and pushed the white on black victimization theme. The coverage of the case falling apart is simply a reflection of the coverage the case got originally. Kobe Bryant's case got a lot of coverage too, and there was a good deal of media speculation as to the alleged victims motivations etc. I just don't think that one can really draw any conclusions about the Duke 3 case. It's a perfect storm. Morality play, college athletes, elite school, blah, blah, blah.

What really is interesting about the Duke 3 coverage was that the racial particulars were discussed in the historical construction of white slavemasters sexually abusing black slaves. However, today, non-Hispanic white on black rape is exceedingly rare. And that indisputable fact never made its way into the coverage. Why is that? Moreover, in black on white cases of rape, a racial motivation is never mentioned in the press, although it likely plays some role on certain occasions, e.g., Missy McLaughlin.

Posted by: federalist | Jan 27, 2007 11:42:59 PM

The problem with these sex with minors cases is that the sex is by definition consensual, and thus the consenting girl is never charged as a party. Start locking up the girl for ten years for consensually having sex and there will be fewer of these crimes.

The comparison to the Duke case is inappropriate because it is a muddled race issue at best. Hmm, White, Duke prosecutor protecting rights of black female stripper, prosecuting white males, in the South no less. Duke University is a high profile target. Duke defendants have three or four lawyers looking for microphones to speak into. Duke Law has alumni base willing to go to bat for the team.

None of these factors are present in Ga. Just some prosecutor not willing to take a plea to a lesser included, like sexual battery or something. If you show some history of this prosecutor taking the lesser included approach with white defendants then you have your story.

Posted by: Michael | Feb 18, 2007 4:57:51 PM

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