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June 11, 2007

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?

June 11, 2007 at 03:50 PM | Permalink


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Tracked on Jun 12, 2007 10:59:21 AM

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Tracked on Jun 12, 2007 11:21:12 PM


This is sweet. He should be let out of jail now. The AG is a jerk for even trying to keep him in jail. What would he do if this were his own son?

Another article here, with tons of discussion. People are trying to turn this into a race issue... Give me a break........


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Posted by: ZMan | Jun 11, 2007 4:58:50 PM


Posted by: ZMan | Jun 11, 2007 5:02:43 PM

Aside from the whole "State hates to lose" argument, I think the appeal is being taken to challenge the type of remedy granted by the habeas court. Keep in mind, I haven't read the decision nor the grounds for appeal, so I'm speculating.

Modifying a petitioner's sentence is unusual in the state habeas context, unless the claim is one of a breach of plea agreement. Usually the relief granted is vacating the conviction and remand to the trial court for fresh proceedings. In this case, the judge modified the sentence from 10 years to 12 months. Perhaps that is what the AG is taking issue with. Not necessarily based on the facts of this case, but the precedent this sort of remedy would set.

Posted by: Gideon | Jun 11, 2007 5:27:39 PM

Where are Bork and Dershowitz when you need them?

Posted by: Anon | Jun 11, 2007 5:28:57 PM

Oops, I should have read the quoted text more carefully. I guess that is why the State is appealing and then the second part of my comment seems more credible.

Posted by: Gideon | Jun 11, 2007 5:29:05 PM

This way they can all say publicly that they are "tough on child rapist sex offender predators" ... most people won't know the disturbing fact of the case and will fell warm and fuzzy that the prosecutors are doing all they can to keep this convicted sexual predator child rapist locked up. Then they'll go back to watching "To Catch a Predator" on NBC....

Posted by: Bruce | Jun 11, 2007 5:59:29 PM

This way they can all say publicly that they are "tough on child rapist sex offender predators" ... most people won't know the disturbing fact of the case and will fell warm and fuzzy that the prosecutors are doing all they can to keep this convicted sexual predator child rapist locked up. Then they'll go back to watching "To Catch a Predator" on NBC....

Based on the charges filed, the prosecutors probably still believe that they have a rapist locked up right now. It's not as if Genarlow Wilson just happened to be a guy with an underage girlfriend. Not that that makes it right, but if the question is what's motivating the prosecutors, that's my best guess.

Posted by: | Jun 11, 2007 6:35:03 PM

"Where are Bork and Dershowitz when you need them?"

Who needs them? Wilson has our esteemed host.

Posted by: Kent Scheidegger | Jun 11, 2007 7:03:07 PM

I hate to rain on the parade, but doesn't this case have about a 100% chance of reversal if the best hook the judge could find was the 8th Amendment? Unless the GA SC wants to be extremely pioneering, it simply isn't the law that a ten year sentence for this offense is so out of line that it violates the cruel & unusual punishment language as currently understood.

Posted by: Jay | Jun 11, 2007 7:13:55 PM

Jay: yes, if that's all they have it will be a automatic reversal. Which is why the prosecutors and AG's office are extremely unethical by bringing and pursuing these charges. They know better and are doing it only so they can look good to the idiot, uninformed, scared-of-child-predators masses. All of them should be disbarred.

Posted by: BruceM | Jun 11, 2007 7:18:23 PM

Disbarred? What, for bringing a meritorious appeal? Come on.

I agree that this guy has probably served enough time for his crime. But the judge's decision seems a little weak here.

And let's not forget what message is being sent by this case--15 year old girls, you are on your own.

Posted by: federalist | Jun 11, 2007 7:26:21 PM

"People are trying to turn this into a race issue..."

Interesting,now seeing that the AG is African-American.

Posted by: mark | Jun 11, 2007 7:29:42 PM

"And let's not forget what message is being sent by this case--15 year old girls, you are on your own."

All the judge did was what the legislature did - change the maximum punishment for this offense to 12 months. His conviction wasn't overturned; he wasn't acquitted. His sentence was simply brought in line with what the legislature (belatedly) deemed to be appropriate.

Posted by: Gideon | Jun 11, 2007 7:33:26 PM

Can't the AG leave well enough alone?

Posted by: William Jockusch | Jun 11, 2007 7:58:58 PM

It seems to me that, if the court did indeed rely solely on the Eighth Amendment, the appellate court will almost certainly reverse.

What I find appalling (taking as given the DA's earlier actions) is the AG's appeal. He's quite likely correct as a matter of law, to be sure. But a prosecutor's job is, of course, to do justice. Given that (presumably) the trial court's reasoning is not binding precedent, this decision, though perhaps legally wrong, does justice. Appealing this decision, in my mind, serves only to perpetuate a past injustice that could otherwise be cured.

My conclusion: the court was likely wrong, as a legal matter, to grant the relief requested. But the AG's office should not appeal, for an appeal can only serve to further the injustice done to Genarlow Wilson. Sometimes, the best course of action for a prosecutor is simply to do nothing, even if it results in the state "losing."

Posted by: Nick | Jun 11, 2007 8:10:18 PM

Gideon, usually people convicted of crimes for which the penalty is reduced are not released from prison.

Posted by: federalist | Jun 11, 2007 8:38:42 PM

Nor does this court's decision mean that "15 year old girls are on their own".

A colorable claim can be made both ways: That the sentence was "cruel and unusual" and that the habeas court did not have the authority to resentence petitioner.

Note that the AG doesn't argue that there was any error in the findings of the habeas court on the merits; rather that it did not possess the authority to order the relief that it did. Distinct points.

Posted by: Gideon | Jun 11, 2007 9:00:05 PM

Question -- assuming that the court couldn't grant the relief that it did -- everyone seems to agree that an 8th Amendment claim is cognizable in habeas. Finding a violation would seem to lead to the conclusion that the court can vacate the sentence and order resentencing. As that vacated sentenced is treated legally like it never existed, wouldn't Wilson have to be sentenced under the newly passed legislation that would cap his sentence at 12 months. In short -- it seems like even a win for the AG here ends up with the same result (I just can't see a State supreme court relitigating the facts -- they're strictly an issue of law kind of place.)

Posted by: JustClerk | Jun 12, 2007 8:28:24 AM

disbarred for abusing their position as a prosecutor for political gains and breaching their fiduciary duty to principles of justice and fairness.

Posted by: Bruce | Jun 12, 2007 11:30:48 AM

federalist wrote: "And let's not forget what message is being sent by this case--15 year old girls, you are on your own."

I realize that you wish this were Saudi Arabia; and that pre-martial sex between teens only 2 years apart would be punishable by death. So I won't make the mistake others do by engaging you - as that makes it seem as if you are someone worth of being taken seriously.

I just find is ironic you post as "federalist." You should call yourself "Islamofacist," "Evangelicalfascist" or just "fascist" for short.

Posted by: Mike | Jun 13, 2007 6:58:30 PM

That's just cute Mike. By the way, not that it really matters much, but I am what evangelicals call a secular humanist.

And no I don't wish this were Saudi Arabia. To be completely blunt, that society's misogyny completely repulses me, as does its view of female sexual morality. I do not share the misogynist hatred of female sexuality, nor do I have any issues with what consenting adults do. However, there are reams of research showing that sexual activity by younger teen girls is fraught with danger. Acknowledging that fact doesn't make me a prude or a scold--just someone who accepts things as they are, not as we wish they were. Moreoever, people can understand the issues raised by young girls engaging in such sexual activity without thinking of them as whores or sluts either, as you obviously think I do.

If you have read my posts here on this issue. They have boiled down to an unease about the length of time Mr. Wilson is spending behind bars, coupled with the view that a 17 yo who plies younger girls with alcohol so that they can perform serial fellatio deserves some time in jail. This is not a Romeo and Juliet situation and your post, quite frankly, shows an aversion to the truth of what happened.

I hardly think my views on this issue qualify me as a "fascist". But stick around here--I have plenty of views that some here would call fascist--for example, my views on the treatment of alien felons or illegal combatants.

Posted by: federalist | Jun 13, 2007 8:32:11 PM

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