Adding to the Wilson Debate

Eric Johnson points this out and it gets to the heart of my problem with the case.

According to Baker’s Op-Ed, he has a deal that would release him from prison right now, give him first offender status (no record), and keep him off sexual offender registry. The real question is why he isn’t taking it. I guess the attorney and he haven’t signed the book deal yet.

It does very much appear to me that Genarlow’s lawyer is more interested in martyring him for the cause than actually getting him out of jail.

Of course he’d have to accept culpability, but a jury of 12 has already found him guilty. Does he want out of jail and his record cleared (which first offender status would do) or does he want to be a martyr?

33 comments

  1. John Konop says:

    Erick

    On another thread it seems like you supported making sure Wilson never made it to trial for have a voluntary relationship as a minor.

    Then I guess you think anyone who had a relationship as a minor did it because they had no parents or bad parents.

    I have a few questions I am sure you will avoid.

    Do you think all of the minors that have had volunteer relationships should go to prison or only the people of color?

    Do you think we should have any time limit on the “ERICK LAW” of throwing minors in prison for volunteer relationships?

    BTW if you are guilty how much time should you do?

  2. Nicki says:

    Um, hey, I pointed out this below, but someone apparently it feels that the conduct of a client’s lawyer is a more important issue than whether or not the client is being treated fairly. Which he is not.

    If Wilson accepts the plea, then he’s still convicted of something he did not do, right? Sounds great — why wouldn’t he take it? Oh, because he did not do it. And, too, he’s probably kind of pissed at losing his freedom for a few years.

    If Wilson and his attorney are smart, they’ll hold out for an official recognition that Wilson is not guilty and sue the state for whatever’s appropriate to the loss of your freedom for several years.

  3. Rogue109 says:

    Nicki: If he takes the “first offender” plea, at the conclusion of his probationary sentence, the plea is totally and permanently removed from his record. In the eyes of the law, he will have never been convicted or pled guilty to anything. That’s the whole point of “first offender” treatment…for someone who made a one-time mistake to take some measure of responsibility and then have it removed from his record.

    If you are so gung ho about Wilson and his TV Lawyer filing a lawsuit against the State, can you point to me what law the State has broken in its treatment of Wilson?

  4. Nicki says:

    If Wilson has been incarcerated for years due to improper sentencing, he will likely be eligible for compensation.

    What are a few years of your life worth?

  5. Rogue109 says:

    Nicki: For Pete’s sake, he has NOT been improperly sentenced under the law! What is so hard to understand? He was convicted and sentenced under the law that was in effect at the time of trial. Subsequently, the law was changed but the General Assembly did not make it retroactive. Thus, Wilson was still properly sentenced. The reason you can’t site any code section in the OCGA which has been violated is because there isn’t one!

    When sentencing guidelines for DUI convictions were increased several years ago, some people got the lighter sentences and others got the harsher sentences. Why? Because of their date of arrest. As a result, one guy got more community service than another on their arraignment date because of when they were arrested. Is that legal? Of course! Because the General Assembly stated that the new punishment would take effect on a date certain!

    Just because you don’t like the law doesn’t mean that it can be ignored.

  6. JRM2016 says:

    I have hesitated to weigh in on this, but let’s get clear on a few items.

    1–Even under the new Georgia law, Mr. Wilson is guilty of a criminal act, admittedly now a misdeamenor.

    2–Mr. Wilson was properly sentenced under the law existing at the time of his conviction.

    3–it is precisely because of the perceived problems with the then existing law that the new law was enacted.

    So

    4–Mr. Wilson could be pardoned or have his sentence commuted by the governor or the Supreme Court could turn him loose but under any such scenario it is difficult to see how he coul successfully proceed against the state in a civil action. But if it is true he is holding out on the deal described above,I cannot fathom any reason to do so than a wild-eyed hope at a civil suit jackpot.

  7. John Konop says:

    Rogue109

    According to Matt Tower that was never the intent of the law. Also the legislator further demonstrated it by changing the law to help the prosecutor understand he was wrong. Any decent human being ie PROSECUTOR would of let the kid go and also never used the law that way in the first place.

    And if I am wrong show me one other case like this in GEORGIA? Do you think that was the only minor who ever got caught having volunteer relationship with another minor?

    If this was a white kid like the Duke lacrosse case you would be screaming bloody murder!

  8. Nicki says:

    I said “whatever’s appropriate” — if nothing is appropriate, then that’s what he would get. Nevertheless, I can understand wanting to hold out for a deal that does not involve accepting culpability for the inappropriate crime. And it is inappropriate. That’s why this whole business has occurred — because our lawmakers were more interested in scoring political points than crafting a workable, feasible law.

  9. John Konop says:

    The only guilt I see in this case is a bunch of white guys having two standards. And since you think this about the law, how many of you went to the police if you violated the law and went to prison?

    And now it looks the STATE is more concerned about CYA than justice!

  10. If Wilson accepts the plea deal that has allegedly been offered, BJ Bernstein will have to find another celebrity client to hawk if she wants to go on Nancy Grace’s TV show.

    The longer Genarlow sits in jail, the longer BJ gets to be on TV. Unfortunately, the law sucks and it is not on their side. I can’t imagine that the Supreme Court would overturn this sentence, and even if they accept the plea they can still challenge it on constitutional grounds.

    So let’s see, pursue a constitutional challenge while sitting in jail or pursue a constitutional challenge while sitting at home. I think I know which one I’d pick.

  11. Rogue109 says:

    John: No, I wouldn’t be screaming bloody murder…I’d be seeing to it that the law is followed. For some reason, you are really hung up on some sort of search for a racial angle. It is you who has the problem with race, not me. Your argument is weakened by your immediate embracing of the time-honor tactic of calling Erick and I racist and bigoted. Shame.

    I view all equally under the law. You do not and you have yourself to blame.

    I’ll admit, I don’t know who Matt Tower is…but he clearly doesn’t understand that legislative intent has no place in statutory interpretation. Unfortunately, neither do you. People like you and Bill Simon and Nikki live in this fantasy land where society can make feel good decisions based on a whim. We can’t. There are laws and violation of those laws have consequences. If the law is changed and the consequences are allowed to be changed…then fine. But one cannot willy nilly just ignore the law if they see fit.

    I cannot show you any similar case like this in Georgia, because, as you know, cases are only published by the Court of Appeals and Supreme Court when on appeal. Cases handled at the trial level aren’t published anywhere. Do I think there was a similar case at some point in some judicial circuit someone in Georgia? Yes.

    You suggest the Assistant District Attorney should have understood he was “wrong.” It doesn’t work that way. What the ADA had was a video tape with booze/drugs/sex and a victim and victim’s mother who wanted prosecution to continue. The ADA, whoever he is, when faced with that, did the right thing and took it to court. A prosecutor does have latitude to not press charges but if he feels it is in the best interest of the community to proceed, then it is up to a jury to decide. That’s the whole point of the jury system.

    Would we be here today if Wilson hadn’t gone to his sex/booze/drugs party? NO.

    Would we be here today if the jury hadn’t convicted him on that one count? NO.

    But we are here and the law is the law. Just because you think the whole world is racist doesn’t make it so and just because you think the law should let Wilson out of jail today doesn’t magically change the OCGA.

  12. John Konop says:

    FYI I am sorry I left the Y of his name!

    Inside The Genarlow Wilson Case

    By Matt Towery

    ….Incredibly, it was “my” law under which Wilson was convicted and sentenced. It was never, ever the law’s intention to lock up young people for 10 years for consensual sex…..

    Turn back to 1995. I was serving my last term in the Georgia House of Representatives. I introduced “The Child Protection Act of 1995.” It created harsh penalties for the sexual abuse or other harmful neglect of children. That legislation would never have impacted Genarlow Wilson had it passed into law as it was originally written.

    Wilson’s misadventure went like this: Back when he was 17, he and some friends had a party. Somebody videotaped Wilson having sexual intercourse with a girl his age and, also that night, oral sex with a 15-year-old girl….

    You can get the full story on Twonhall.com

  13. Rogue109 says:

    John: Sorry, I *really* did think you were talking about a guy named Matt Tower. No biggie.

    No need for the full story, though. Again, it doesn’t matter. The statutory interpretation cannot be influenced by legislative intent. The clear language of the law is what is controlling…if the language is changed, only then will the results be altered.

    John, really, these are not complex concepts. We have to follow the law. The law is what is written.

  14. The Comma Guy says:

    1 – Once again, sentences pursuant to convictions for Aggravated Child Molestation are not subject to the Parole Board. See OCGA 17-10-6.1

    2 – Since 1983, the Governor has no role in the decision as to whether or not to grant a pardon to an inmate.

    3 – Run a search on the name “Joshua Widner.” He’s a white kid who is also doing 10 years for aggravated child molestation. Widner was 18 when he had consensual relations with a 14 year old. A law professor is working to get him out of prison using the Genarlow Wilson case.

  15. ToddH says:

    JRM has a good point. There seems to be a significant number who are arguing that Wilson is an innocent victim, I have also argued that point from a standpoint of seeing him as innocent, but the fact of the matter is that he did break a law and even though the sentencing was unduly harsh it, at the time, was a proper sentencing for that crime. No matter if he knew he was committing the crime or not it is a fact that ignorance of the law is not an exception.

    I’m confused by the plea deal that was offered as it seems to match the ruling by the judge recently that would have freed Wilson. They wouldn’t accept the plea deal but are willing to accept the ruling by the judge which still states that he was guilty but that he is released based upon time served. If he is attempting to clear his name completely or believes himself innocent, then why would they accept the ruling by the judge? And, if the outcome is nearly identical to the plea deal why would the prosecutors or Attorney General oppose the ruling of the judge?

  16. Rogue109 says:

    John: Just so you know, I’m not in favor of this Joshua Widner (A WHITE MALE) getting out of prison either. Why? Because he was properly sentenced under the LAW. (GASP!)

    Hey, Bill: An 18 year old sleeping with a 14 year old…you have any problem with that?

  17. John Konop says:

    Rogue109

    I do apologize and I will take you at your word.

    Yet I still think Wilson should have never gone to prison or be charged on that law. Matt Towery the author of the law made it clear it was not the intent. And I do think by passing a new a law it makes it clear not many think Wilson should have ever been in prison.

    BTW I have no clue about Joshua Widner case.

  18. One thing I think no one has thought of, I bet abstinence only sex education would work a lot better if they just told you that you were going to jail if you did this stuff.

  19. Rogue109 says:

    John: Yeah, with Widner, I’m just going on what was posted above. And you’re right…not many people think Wilson should have been in prison. I wish the General Assembly had just made this retroactive and this issue would be moot. If wishes were horses, though, beggars would ride.

    I’m outa here…ya’ll get the last word.

  20. Bill Simon says:

    Rogue,

    You said this a few post back:The statutory interpretation cannot be influenced by legislative intent.

    How interesting. Does this then mean that all of the whining from legislators about “activist judges” who interpret the law differently from how they intended is a pile of nonsense?

  21. JRM2016 says:

    Todd H: Agreed

    Konop: I think someone else said this earlier in the thread but it bears repeating, legislative intent is irrelevant to statutory interpretation. You will notice in the excerpt you posted from Towery that he states it would never have been a problem from Wilson if passed as originally written.

    The implication is that the law was amended in some way to allow him to be charged. If we allowed judges to ascertain legislative intent in interpreting laws, we may as well close down the General Assembly and let the Superior Court Judges of this State make the law (as their federal brethren so often do).

    Comma Guy: Thanks for the clarification. It appears only the P & P Board acting together may offer what I had traditionally thought was Gubernatorial Clemency. That’s what I get for assuming. Do you read 17-10-6.1 to prevent the P & P Board from pardoning Wilson? I certainly see where parole would not be allowed but it appears to be silent as to pardons.

  22. John Konop says:

    JRM2016

    I am not a lawyer. But my understanding is the prosecutor did not have to charge Wilson with the crime he did. And that he has been the only prosecutor to use that loophole in the law.

    Also the Prosecutor could end all of this at anytime. I could be wrong because this is my understanding having never gone to law school!

  23. Loren says:

    According to Baker’s Op-Ed, he has a deal that would release him from prison right now, give him first offender status (no record), and keep him off sexual offender registry.

    Senator Johnson is misquoting Baker. According to the op-ed, The offer cited said that Genarlow “would not have a criminal record nor would be subject to registering on the sex offender registry once his sentence has been completed.” (Emphasis added.)

    Under the terms of the sentence, as I understand them, Wilson would probably be paroled now, but he would have to serve another 13 years on probation. During which time he would still be on the sexual offender registry. Only around 2020, when Wilson is about 34 years old, would his name be removed from the registry, and his record expunged.

    So it’s not quite the sweet deal Mr. Johnson would suggest.

  24. drjay says:

    that deal is quite a bit better than the one he has now–and at this point he (and i guess more importantly to her) and his lawyer can probably make a fair amt. of coin of of this –no??

  25. Bill Simon says:

    Loren,

    How dare you accuse a legislator of misquoting anything!

    Didn’t you receive the Handbook of Being a Good Georgian? If you turn to Chapter 86, Section F, paragraph 1-X, you will note that it says “As A citizen of the Great State of Georgia, you shall never question the words of any [emphasis on “any”] elected legislator OR public official while you reside within the geographical dimensions of the State of Georgia.”

    Better retract what you said, pronto!

  26. Loren says:

    Well, crackers. Does that mean I also have to refrain from ragging on Eric’s March Op-Ed about Wilson and SB37? The one where he, apparently without any sense of irony, wrote:

    “I oppose any legislative effort to require the courts to revisit more than 1,100 cases like Wilson’s. These predators violated the law. Police arrested them. District attorneys chose to prosecute them. Juries convicted them. The Legislature should not second-guess the process. We did not listen to the testimony or see the evidence.”

    Because I’m sure it was completely unintentional that he omitted “Judges sentenced them.” Even though it’s the sentence, not the conviction, that is the issue in the Wilson case. And even though the reason Wilson got a 10-year sentence to begin with was because the legislature second-guessed the process and imposed minimum-sentencing guidelines, which the judges were forced to obey.

    But if you’re right, and if being a good Georgian means that I shouldn’t point out that Mr. Johnson was apparently OK with the legislature forcing a judge to sentence Wilson to 10 years but not OK with the legislature allowing a judge to exercise judicial discretion in sentencing, then I’ll hold my tongue.

  27. Bill Simon says:

    Loren,

    I’m not sure Senator Johnson understands the definition of “irony.”

    In another chapter of that Handbook, it describes how using words and concepts that legislators could not/do not understand can also earn you marks against your record.

  28. Rogue109 says:

    Bill Simon: Hey…just hopped on and saw your question:

    “How interesting. Does this then mean that all of the whining from legislators about “activist judges” who interpret the law differently from how they intended is a pile of nonsense?”

    No, because you are asking the question the wrong way. The question is better asked:

    “Does this mean that legislators are correct that the Judicial Branch is wrong that it feels at a whim they can ignore the plain language of statutes and create varied interpretations at their whim?”

    To that question…yes!

    Loren: In answer to your comment:

    “But if you’re right, and if being a good Georgian means that I shouldn’t point out that Mr. Johnson was apparently OK with the legislature forcing a judge to sentence Wilson to 10 years but not OK with the legislature allowing a judge to exercise judicial discretion in sentencing, then I’ll hold my tongue.”

    Wow, this really is starting to border on amazing! Loren, can you tell me under what statutory authority the Judge can exercise his “judicial discretion in sentencing”? I will save you the time…there isn’t one.

    What is so darn hard with following the law? Again, this is simple: Wilson was sentenced under legal guidelines. Those guidelines were later changed and he was not included in those changes…also legal (not saying it was the right call, though). Then a Judge decided to IGNORE the law and give himself illegal powers. The AG is appealing that!

  29. Loren says:

    Wow, this really is starting to border on amazing! Loren, can you tell me under what statutory authority the Judge can exercise his “judicial discretion in sentencing”? I will save you the time…there isn’t one.

    SB 37 was designed precisely to allow for the exercise of such discretion in cases like Wilson’s. “[T]the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.”

    And by how much could the judge have corrected or reduced the sentence? That would be a matter for the judge’s discretion. Reduce it to time served, leave it at 10 years incarceration, or do something inbetween. The judge gets to make the call; not the legislature. Of course, SB37 didn’t pass. Senator Johnson opposed an allowance for such discretion through reconsideration.

    And judges exercise discretion in sentencing all the time. Outside of mandatory sentencing laws and plea bargains, it’s what judges do in virtually every case. Even in a misdemeanor statutory rape case, which carries a maximum penalty of one year in prison, it’s up to the judge to decide whether to sentence the guilty party to a year in prison, a year on probation, a lesser term of either, etc. If a crime carries a maximum penalty of a $100,000 fine, it’s up to the judge to decide whether to impose the maximum or something less. That’s what discretion is. The notion that such an everyday and ordinary exercise of discretion could be denied is what’s amazing.

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