Topic: Professions & Institutions

Ethics and the Tragedy of Genarlow Wilson
(2/2/2007)

A badly drafted Georgia law that was aimed at child molesters but wounded normal teenagers is being condemned by all ends of the political spectrum, and rightly so. In 2003 Genarlow Wilson, a 17-year-old senior at Douglas County High whose scholarship and athletic skills had endeared him to several Ivy League schools, attended a party in which an overly-friendly 15-year-old girl volunteered to give oral sex to several boys. One of the dimmer ones thought the event needed to be videotaped. Later, when the girl found herself being cross-examined by her suspicious mother, she claimed she had been raped, which, since she was under the age of consent in Georgia, sounded plausible. Police went to the scene of the party and found the video camera, with a tape that depicted, not a rape, but what the law then in effect decreed was a felony carrying a mandatory sentence of ten years in prison. The crime was child molestation, defined as receiving oral sex from a minor. If the teens had been recorded having what Bill Clinton regards as the one and only sex act, it would have only been a misdemeanor because Georgia law acknowledged that consensual intercourse between teens less than three years apart could not reasonable be called statutory rape.

An odds-defying sequence of stupid, unethical and irrational acts converged to put Wilson in jail for a ten year sentence without a chance of parole. The idiot videotaping the group sex started it; the orally enthusiastic 10th grader falsely crying rape did her part. Then Douglas County District Attorney David McDade displayed classic abuse of prosecutorial discretion by prosecuting Genarlow and the other boys based on the video. Genarlow's defense attorney failed his client by not being able to persuade him to take a plea bargain like his fellow defendants: as ridiculous as the law was, Wilson was guilty of breaking it. According to press accounts, Wilson rejected McDade's offer of a lesser charge in exchange for a guilty plea because it would have made him a registered sex offender and prevented him from living in the same house with his sister. But his decision meant that he was counting on a jury to disregard the law, always a desperate hope unless Clarence Darrow can be resurrected to make your closing argument.

Even without Darrow, the jury should have done the right thing and refused to convict. It didn't. It might have, but the judge never told the jury that a conviction carried a ten year mandatory sentence, so the jury (members now say) assumed that the judge would be merciful. The trial judge, who has the discretion to reverse a jury verdict in the interests of justice, wouldn't take a stand, and rendered the full statutory sentence. While Wilson languished in prison, the Georgia Legislature changed the law that convicted him…but didn't have the sense, courage, brains or compassion (pick one) to make it retroactive.

Next up to bat, the Georgia Supreme Court. In a 4-3 vote, the justices ruled that their hands were tied: it was a valid law and Wilson broke it, so there was no legal justification to reverse the conviction. The opinion admitted this was unjust, and suggested that executive clemency was called for, or another bill by the legislature. But Georgia doesn't let its Governor pardon people in jail; only the Georgia Board of Pardons and Paroles can do that, and so far, it hasn't.

So let's review, shall we? At this point, the prosecutor, the jury, the State Supreme Court, and the legislature, not to mention the so-called "victim," all believe that Wilson does not belong in jail for a ten year term. But all of them have helped to put him there and keep him there.

Many of them will say that they "had no choice." That is a dishonest rationalization. McDade could have dropped the aggravated child molestation charge when Wilson didn't accept a plea bargain; it would have been embarrassing, but then, he should be embarrassed. He was irresponsible: Ethics Foul #1. The jury, like all American juries since the John Peter Zenger trial, also had a choice: they could have refused to convict in defiance of a bad law. That was the right thing to do, and they whiffed: Ethics Foul #2. The judge allowed this travesty to occur: he should have dismissed the case and reprimanded the D.A, making Ethics Foul #3. The legislature was simply incompetent, but twice---once in passing the original law, and again by not making its repeal retroactive. Ethics Foul #4. Then the Supreme Court of Georgia showed how "judicial activism" is sometimes not only justified but essential, and showed it by being craven. It had the power to reverse the case in the interest of justice, and refused. Ethics Foul #5.

Then there's Sonny Perdue, the Governor. True, he can't issue a pardon on his own, but he could take some political risk and force the issue. That would take some courage. Instead, he is staying out of the matter, adopting one of the Scoreboard's least favorite rationalizations, "It's not my fault!" Well, that's debatable (Perdue signed the legislature's non-retroactive change in the law), but it doesn't matter whether it's his fault or not: he is in the best position to show leadership and make something happen. He's the Governor, and an innocent young man has had his life savaged by the government Perdue heads. So far, nothing: Ethics Foul #6 goes to you, Sonny.

Now the media is beating the drums. Specials on TV, editorials from The New York Times to the Smallville Gazette….petitions, blogs blazing, pleas to the legislature.

I originally concluded with the assertion that President Bush had an obligation to use his presidential pardon power to end this fiasco, but even that is impossible. George Mason Law School's Professor Ron Rotunda reminded me that the President can only issue pardons for federal crimes. So Wilson must wait for the Georgia legislature to pass a bill directed specifically at his plight, or for the Georgia Board of Pardons and Paroles to act, something it has so far been unwilling to do. All of which should remind us that the worst Ethics Foul of all was the first one.

This was an unjust and unethical prosecution that never should have occurred.

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