How Not to Win Your Case

The saga of Genarlow Wilson is legend on the Net. Wilson and some his high school buddies threw a party in a hotel room on New Year's Eve. The party involved alcohol, girls, sex, and a video camera. All participants were legal minors. Allegations of rape followed the party. Wilson and friends were all charged. Everybody but Wilson copped a deal. Wilson proceeded to trial on charges of forcible rape and "aggravated child molestation." That later charge was based on Wilson (on tape) getting an apparently consensual blow job from a 15-year old girl. The jury acquitted on the rape charge, but convicted on the other charge, unaware that it carried a mandatory minimum sentence of 10 years in prison.

The case has been a sensation ever since. The Georgia legislature changed the law under which Wilson was convicted to removed the mandatory minimum and reclassified the offense as a misdemeanor when all involved are under 18. But the law was not made retroactive, and so Wilson was stuck with a 10-year sentence for, basically, having consensual sex with another kid.

Recently, a judge in Georgia ruled in a habeas corpus proceeding brought by Wilson that the sentence could not stand and reduced it significantly. Not pleased, the Georgia Attorney General decided to appeal the decision and oppose Wilson's release on bond pending its resolution (he's been in prison for more than two years, IIRC). One theory as to why the prosecutor is so keen on maintaining the original sentence is that he thinks Wilson "got away" with forcible rape and wants to hit him as hard as he can with the other charge.

In an apparent bid to bolster his case, the prosecution did an unusual thing - he released a copy of the video tape showing what went on at the part. One problem - we're talking about a videotape showing minors engaged in sexual activity, which sounds an awful lot like child pornography. At least that's what the feds down in Georgia think:

U.S. Attorney David Nahmias said federal law prohibited distributing the videotape because it depicted minors engaged in sexually explicit conduct and warned that people who had received it would be in violation of federal child pornography laws.

The prosecutor argued that he was "required" to release the tape under Georgia's version of a sunshine statute because it was introduced as evidence at trial. As the USA points out, federal law would trump state law in such situations. I can say that, from my experience in our child porn cases, the evidence in such prosecutions is heavily regulated, to the point that defense counsel can only view it at the FBI office, for example. Copies are certainly not circulated to the local press.

Eugene Volokh weighs in on the issue here. For even more info on Wilson's case, Doug Berman has many thoughts over at Sentencing Law & Policy.