Alyson M. Palmer
Fulton County Daily Report
06-14-2007
Mercer University law professor Sarah Gerwig-Moore represents a young man few know but whose plight will sound very familiar.
Like Genarlow Wilson, whose highly publicized case this week reached a new level of drama, Joshua Widner was sentenced to 10 years in prison for a sexual encounter with a fellow teenager that his lawyers say today would be considered a misdemeanor. In both cases, courts have found that neither girl was forced to give oral sex.
But while a Monroe County judge Monday tossed Wilson's sentence as "a grave miscarriage of justice," the state Supreme Court last year said Widner's sentence "does not unconstitutionally shock the conscience."
Gerwig-Moore said in an e-mail that she's rooting for Wilson, for his sake and that of her client.
But she called the Widner ruling of the high court -- called upon to hear Attorney General Thurbert E. Baker's appeal of Wilson's case -- "a big hurdle for Genarlow."
"The opinion in Josh's case shows that the [Georgia Supreme Court] just doesn't have the outrage over this situation that the legal community and so many from across the country have shown," Gerwig-Moore added.
Plenty of others are outraged. Civil rights leaders this week demanded Baker drop his appeal of Wilson's ruling -- or resign. Wilson's case fit easily into the format of media debates on criminal law, and "Primetime Live," "Good Morning America" and the "O'Reilly Factor" have featured it.
But the difference in the rulings in Widner's and Wilson's cases suggest there may not be an easy legal fix to these matters. That's a challenge not only for their lawyers but also for Baker, who is caught between public pressure on one side and his prosecutorial obligations on the other.
WILSON'S QUEST FOR RELIEF
Wilson's case began with a New Year's Eve party in a motel room in December 2003, when Wilson was 17. A jury acquitted Wilson of charges that he raped a 17-year-old girl but convicted him of aggravated child molestation based on what a judge has called apparently "voluntary" oral sex performed on him by a 15-year-old girl.
On direct appeal, Wilson's lawyers went first to the state Supreme Court, which transferred the case to the Court of Appeals. In April 2006, a panel of that court rejected arguments both that Wilson's prior counsel was ineffective for failing to make an equal protection argument and that a 1995 state law classifying statutory rape as a misdemeanor if both parties were teenagers within a specified age range meant Wilson could not be punished more harshly.
Wilson tried to get the state Supreme Court's attention again, but the court declined to take the case over the dissents of Chief Justice Leah Ward Sears and Justices Robert Benham and Harold D. Melton. When the court denied a motion for reconsideration filed by Wilson, Presiding Justice Carol W. Hunstein wrote a concurrence saying the court couldn't help him because the Legislature had refused to make retroactive the new law changing Wilson's conduct to a misdemeanor.
Taking the hint, Wilson's lawyer B.J. Bernstein turned to the law-making process, where state Democratic Sen. Emanuel Jones sponsored a bill aimed at making it easier for people in Wilson's situation to go back to the judge who sentenced them to get resentenced under the new law. When that bill didn't go anywhere, Bernstein's team turned to a state habeas petition, resulting in Monday's order by Monroe Superior Court Chief Judge Thomas H. Wilson, no relation to Genarlow.
The judge voided the 10-year sentence because of the law that would have made his acts a misdemeanor, saying the sentence was unconstitutionally cruel and unusual punishment. Under the new law, a person 18 years of age or younger convicted of aggravated child molestation based on an act of sodomy will be guilty of a misdemeanor as long as the victim is at least 13, less than 16 and not more than four years younger than the defendant. He then modified Wilson's sentence to a misdemeanor, giving him a year's prison time with credit for time served, and held that he was not required to register as a sex offender.
WIDNER PLANS FEDERAL CASE
Meanwhile, Widner's lawyers have been trying to get their client out of jail as well. Widner had been convicted of felony child molestation and statutory rape. According to the Supreme Court's decision in his case, those convictions stemmed from events in December 2002 when, then 18, Widner convinced a 14-year-old girl "to agree to have sex with him and another male friend at the same time."
On June 26, 2006, Melton wrote for a unanimous court rejecting Widner's appeal on the child molestation sentence. Melton acknowledged the imminent change in the child molestation statute. But Melton wrote that because the law wasn't in effect when Widner was sentenced, it couldn't apply.
The court also rejected Widner's cruel and unusual punishment argument, saying Widner was simply asking for "special treatment." "[B]ecause the required punishment does not unconstitutionally shock the conscience, Widner's sentence must stand." The decision was Widner v. State, 280 Ga. 675.
Mercer professor Gerwig-Moore picked up Widner's case after the high court ruling.
She tried to return to the original sentencing judge for a sentence modification, but that didn't work. Now she has plans to raise her cruel and unusual punishment argument in a habeas petition filed in federal court.
Gerwig-Moore said in light of newspaper editorials and other reaction to the Wilson case, the Supreme Court's finding that her client's sentence didn't shock the conscience was "a pretty hollow analysis."
Plus, she said, if Wilson is successful, she might be able to also file a state habeas petition on a secondary argument embedded in the decision by the Monroe County judge -- that Wilson's sentence was a "miscarriage of justice" within the meaning of the state's habeas statute.
REASON FOR HABEAS
Curiously, the state's lawyers who responded to Wilson's habeas petition never mentioned the Widner case, according to Bernstein, Wilson's lawyer.
She said from reading the court's opinion in the Widner case, it appears that Widner did not argue the case the same way that she has on behalf of Wilson.
She's relied on death penalty decisions by the Georgia Supreme Court not cited by the opinion in the Widner case. That makes a difference, she said.
"I'm solid on the law," she said.
J. Scott Key, a Stockbridge lawyer who represented Widner on his appeal to the Supreme Court of Georgia, said he agrees with what the Monroe County habeas judge did and hopes the ruling stands up on appeal. But he said he's a little worried.
Key noted there's a wider age disparity between the teens involved in Widner's case and that of Wilson. But, he said, "our reasoning on appeal in Widner was the exact same reasoning used by the trial court in granting the habeas" in Wilson's case.
"I hope that they have better luck," said Key.
PUSHING THE APPEAL
Another issue that may come up if the appeal reaches the state Supreme Court is the remedy used by the Monroe County judge in granting the habeas. When Baker announced he was appealing, his statement said habeas judges don't have authority to reduce or modify the judgment of the trial court. But an expert on Georgia habeas law said that's wrong.
Generally speaking, said Donald E. Wilkes Jr., a law professor at the University of Georgia who's written several books on habeas, when a habeas judge finds that a sentence is unconstitutional or illegal, the judge sends the case back to the county where the habeas petitioner was convicted so the original judge can re-sentence the defendant. "However, I do think the court had the authority to do this," he said.
"To begin with, the traditional rule is that when habeas judges grant relief they have very broad, flexible powers to grant whatever the relief is for the person, and on top of that, the Georgia habeas corpus statute gives the habeas judge extremely broad power to fashion a form of relief." In Wilson's case, said Wilkes, "presumably he couldn't get a sentence of more than 12 months anyway, and he's already been in prison for two years."
So Wilkes wonders why Baker is pushing his appeal in the case. One possibility is that other people currently forced to register as sex offenders might use the habeas decision as precedent.
Citing the situations of some of the Southern Center for Human Rights' clients in its federal court challenge to restrictions on people required to register as sex offenders, SCHR public policy director Sara J. Totonchi said that might happen. "If he gets to have this categorized as a misdemeanor and not be subject to the restrictions of the sex offender registry, then these women and others also should be relieved of this obligation," said Totonchi.
She said she doesn't have a clear sense of how many people on the sex offender registry might be considered low-level offenders. But she acknowledged that some might hire lawyers and use the Wilson case as precedent to try to get removed from the registry.
Bernstein said a trial court's habeas decision isn't precedent in the same way that an appellate decision is.
But is a possible opening of the habeas floodgates a reason for Baker to appeal the decision in Wilson's favor? "That's what you do in litigation, is you appeal decisions," said Totonchi. "But I would leave that to him to comment on."
Baker did not agree to an interview for this story. But the case seems to put him in the hot seat, with civil rights lawyers holding a protest outside his office.
J. David McDade, the Douglas County district attorney who prosecuted Wilson, said Baker had no choice but to appeal. "I think the order purports to grant relief in so many different ways that I think the attorney general would have been derelict had he not appealed it," said McDade.
Henry County District Attorney Tommy Floyd, who prosecuted Widner, agreed that Baker wouldn't be doing his constitutional duty if he failed to defend a conviction unless there were some legal "imperfection" with it. "That's a legal judgment that you make," said Floyd. "Here it seems to me ... there is some recent precedent on this very same issue, and I can't see how the attorney general can make any other legal decision."
Wilkes called that argument "a smoke screen."
Prosecutors, including Baker, have an enormous amount of discretion, said Wilkes. "Even if he thinks it's wrong, and even if he thinks it's appealable, he still has the discretion not to do this."
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
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