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B.J. Bernstein says people thought she was 'crazy' in pursuing Genarlow Wilson's release. But, she asks, 'At what point are you crazy when you believe the law can change?'
When B.J. Bernstein sits at her desk, she faces a painting of an angel—an angel suited up for battle.
Bernstein recalls that a lawyer friend gave it to her at the end of a particularly bad day—a day where she learned a client had killed himself. The painting, which she calls her “warrior angel,” obviously carries layers of meaning for her.
“It is angelic to try to do what you can with the law, I mean, to do your job the way you're supposed to,” she says.
Sometimes that job calls on lawyers to do more than just write briefs and make arguments. Especially when the client is young and unsophisticated, a lawyer is called to watch over the needs of her charge in a more holistic way.
When Genarlow Wilson's mother walked into Bernstein's office looking for help in 2005, Bernstein wasn't a stranger to guiding young people through difficult situations. For example, the former Gwinnett County child sex crimes prosecutor had served as a court-appointed guardian to child victims in a federal child prostitution ring prosecution.
Perhaps even more so than other young people Bernstein had represented, Wilson was receptive to Bernstein's parental nudges—to read books, to contemplate the spiritual meaning of his predicament. But his was quite a predicament.
Based on events at a December 2003 hotel room party, Wilson had been charged with raping a 17-year-old girl and molesting a 15-year-old girl when he was a 17-year-old senior at Douglas County High School. While the latter charge was based on what the state Supreme Court's majority later would call “consensual” oral sex, his conviction on it carried a 10-year mandatory minimum prison term.
The jury acquitted him of the rape charge, but the rape allegation—and a videotape of the party—would continue to hound him as Bernstein made the case that the 10-year term was unjust. The video was graphic, according to court papers, showing several teen boys receiving oral sex from the 15-year-old and having intercourse with the 17-year-old, described in a court opinion as “apparently semiconscious.”
Wilson was going to need much more than a guardian angel to hold his hand and talk to him about the meaning of it all. He was going to need one heck of a lawyer—and, as it turns out, a lobbyist and a public relations manager. He was going to need a warrior, one with some pretty tough armor.
He found all of that in Bernstein.
She achieved a nearly impossible victory in October, convincing a majority of the state Supreme Court's justices to sign off on her client's release when just last year the court unanimously had rejected a similar argument by a young man in a seemingly identical legal quandary, Joshua Widner.
Moreover, Bernstein went beyond what many think of as a lawyer's obligations—throwing herself into a pro bono effort that took its toll on her practice. She was tireless and persistent in working the Legislature, as well as the press.
For these reasons, B.J. Bernstein is the Daily Report's Newsmaker of the Year.
Perhaps the key to Bernstein's success was in never wavering in her conviction that her client's situation was unjust—and that she could set things right. “People read into it what they want—that you're either crazy, or that you're wanting publicity at that point, and that it's pride.” But, she asks, “At what point are you crazy when you believe the law can change?”
'People get false hopes'
Bernstein wasn't the first thought of state Sen. Vincent Fort, D-Atlanta, when in 2005 he worked on behalf of Wilson's family to find a lawyer to get Wilson relief from his conviction. Fort recalls that a parent of one of Wilson's co-defendants came to him, and he later connected with Wilson's mother, Juanessa Bennett.
Fort turned to David L. Balser of McKenna Long & Aldridge, Balser recalls.
While Balser spends most of his time representing corporations, he was a logical choice. A year before, Balser had won relief for a young man who had faced a problem similar to that of Wilson. Balser had convinced the state Supreme Court to rule in favor of Marcus D. Dixon, who had been acquitted of rape and other charges involving force but nonetheless had received 10 years for having sex with a high school schoolmate.
At first blush, Wilson's case seemed similar—despite no jury finding of force, a mandatory minimum targeting the worst sort of sexual predators had dragged into its net a high school student who had engaged in sexual activity with a fellow teen. But the legal problem was different.
Dixon was able to escape his 10-year term because there was an apparent contradiction between the aggravated child molestation statute—under which his 10-year sentence was required—and the statutory rape statute. Balser convinced a majority of the Supreme Court that the Legislature intended to punish Dixon's conduct as a misdemeanor, given the statutory rape statute carved out a misdemeanor for age differences like that in the case of Dixon, who was 18 when he had sex with his 15-year-old schoolmate.
Wilson's troubles began when the group of Douglasville teens rented two hotel rooms for the December 2003 New Year's Eve party. The morning after the party, the 17-year-old girl complained to her mother that she thought she had been raped, according to an appellate brief filed by Wilson. Police were contacted and went to the Days Inn, where they found the video tape.
The police later arrested six young men, including Wilson. All but Wilson took a deal that would allow them to avoid the 10-year mandatory minimum but require them to register as sex offenders. Represented then by Atlanta lawyer Michael D. Mann, Wilson balked at the offer of five years in prison and proceeded to trial. His conviction on the aggravated child molestation charge—based on oral sex with the 15-year-old—meant a 10-year sentence.
Because Wilson was convicted of aggravated child molestation that involved only oral sex—not intercourse—the statutory rape statute wasn't relevant and Dixon's argument didn't apply. There was no similar carve-out for teen sodomy, so Balser's win didn't solve Wilson's problem.
“When I looked at the statutes originally,” says Balser, “I thought even though this was a bizarre and untenable anomaly, this was going to be a difficult fight to find the right set of arguments to make to get Genarlow freed.”
More to the point, the corporate litigator recalls that he wasn't ready to take on another case that would require so much energy and focus outside of his practice area.
So, he referred the case to Bernstein, who had filed an amicus brief on behalf of the Georgia Association of Criminal Defense Lawyers in the Dixon case. “It was the best legal work I've performed in a long time, getting the case to B.J.,” says Balser.
No unknown newbie even then, Bernstein recalls that Wilson's trial counsel had recommended her for the case, as well. Now 44, Bernstein had worked with Steven H. Sadow to convince the state Supreme Court to overturn the state's sodomy law in 1998. And certainly not all of her clients would evoke sympathy. At a 2005 trial, she represented Colvin C. “Butch” Hinton III, who after he exhausted his appeals admitted last year that he raped, strangled and then burned the body of 19-year-old Emory University student Shannon Melendi.
Bernstein recalls Fort came to see her with Bennett, Wilson's mother. She says she immediately liked Bennett. “She at her core was worried about her son, and whatever it took for her son was going to be what ruled,” says Bernstein. And they shared a strong will. “That strong-mindedness—that part we had in common.”
It was going to be an uphill battle, Bernstein knew that much. Wilson's trial counsel hadn't raised any of the constitutional arguments about Wilson's sentence. And while there had been talk after the Dixon ruling about changing the Georgia Code as it related to teen sex, not much had come of that.
Bernstein thought she would need to secure a change in the statutes—and even then it wasn't going to be simple.
She says she didn't want Bennett to think that a state senator's willingness to help meant everything would turn out alright. She recalls arranging for a meeting alone with Bennett to give some straight talk. “People get false hopes,” says Bernstein, “and I wanted to lay out how difficult this was.”
Bernstein says she knew little about J. David McDade, the Douglas County district attorney who had prosecuted Wilson. And she hadn't seen the videotape of the party that McDade would pull out whenever the heat was on.
What Bernstein couldn't have known at the time is that another young man with a similar problem, Widner, would get to the Supreme Court before her client—and lose. Widner, a Hampton high school dropout who had sex with a 14-year-old girl when he was 18, also received 10 years for nonforcible oral sex. Widner's appellate counsel, J. Scott Key, says now he thought the precedent set in the Widner case in 2006 was “insurmountable” for Wilson.
“I thought it was impossible,” Bernstein said her fellow lawyers have told her.
Game plan: change the law
She says she knew that she would need to raise awareness about her client's troubles in order to change the relevant statutes. And so she began a public opinion campaign.
“Definitely, it was a conscious decision to reach out to the media to get the statute changed.” That seemed both logical and appropriate, she explains. “You can argue whether a court is influenced by the media or not,” she says. “But the Legislature? Public opinion matters greatly, period.”
She sent out press releases on what was going on at the Legislature and set up a Web site about the case. In August 2005, she appeared with Wilson's mother on “The O'Reilly Factor.”
In January 2006, Atlanta Magazine wrote a detailed piece on Wilson's case, including a description of jurors in his case screaming and crying when they learned their decision meant a 10-year mandatory jail term. Bernstein says that taught her the power of print journalism—she now had a piece to pass around to legislators as she made her case for a change in the law.
McDade has been in a death penalty trial for weeks, and efforts to reach him for this Newsmaker story were unsuccessful. But in that January 2006 story, McDade would roll out his own public take on the case: that he couldn't have ignored a crime documented on tape. Ten years may have been harsh, he said, but Wilson brought it upon himself.
“He has decided to become a martyr because people have been whispering in his ear, 'We'll make you famous like Marcus Dixon,'” the article quoted McDade as saying.
When Bernstein began her legislative campaign, ironically it was a tough-on-crime measure that had been introduced by Rep. Jerry Keen, R-St. Simons, that provided her vehicle. As it stood in earlier drafts, she says, it would have made things worse for young men in Wilson's situation, raising the mandatory minimum penalty for aggravated child molestation from 10 to 25 years.
The final version of the bill, HB 1059, contained what came to be known as “Romeo and Juliet” provisions. The one relevant to Wilson's case said a person 18 years of age or younger convicted of aggravated child molestation based on an act of sodomy is 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. Bernstein's goal was to make sure the Romeo and Juliet provisions stayed in the final draft of the law.
Bernstein didn't get a lot of support for the Romeo and Juliet provisions from advocates for criminal defendants, who had much bigger worries about the overwhelming tough-on-crime aspects of the bill. “Well, there are lots of problems with the bill and this is just one more,” Bernstein recalls hearing. The tighter residency restrictions on sex offenders in the bill ultimately spawned a wave of constitutional challenges.
A former high school intern in the Legislature of her home state of South Carolina, Bernstein says she hadn't been down to the Georgia Legislature since college. Still, without other advocates for the criminally accused prepared to carry the water, she figured, “I guess I gotta go down there.”
She wasn't a registered lobbyist but she signed in as an interested citizen to speak at meetings. She brought Bennett, Wilson's mother, around to meet people.
Bernstein also used Keen's bill as a vehicle for telling Wilson's story in the press. “They always look for the little story to tell about a big bill, and we were it,” she says. “And I pushed that, absolutely. That was a conscious decision.” The first newspaper article about the Genarlow Wilson case that comes up on a Westlaw search is an Associated Press story about the unveiling of Keen's bill—including several paragraphs on Wilson's case and the Romeo and Juliet provisions.
Bernstein acknowledges now that she received negative feedback over her association with HB 1059, given its overall tough-on-crime bent, in particular from members of African-American organizations.
And, indeed, she felt conflicted. “But, one, I represented Genarlow Wilson,” Bernstein says. “Two, anybody who was in that building knew that bill was passing.”
HB 1059 passed overwhelmingly in March 2006. It included the Romeo and Juliet provisions, but also a key sentence that would haunt Wilson, saying the bill “shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law.”
Bernstein says if she had been “a truly fabulous lobbyist” she might have ensured that clause was written more favorably to her client. She says she realized a law couldn't be written retroactively but hoped it would open the door to plea discussions that would keep Wilson off the sex offender registry and get him out of prison.
As it turns out, a Romeo and Juliet clause would prove to be Wilson's saving grace.
Sadow, with whom Bernstein shared office space when she began her private criminal practice career in 1997, says the Supreme Court couldn't have reached the decision it did without the change in the law. “It was critical, probably the smartest thing that she ended up doing,” says Sadow. “Now, whether she could have predicted or not—I know she was hopeful.”
Taking it to the courts
Meanwhile, Bernstein was fighting on a second front—the appeals process.
“We never didn't deal with the courts and deal with real law. … It wasn't like I'm just going to the courts saying, 'please let my kid out' without any basis, 'see my kid's in the media, feel sorry for him, let him out,'” she says.
In the summer of 2005, she pursued a motion for a new trial in Douglas County on behalf of her new client. The theory was that Wilson's equal protection rights had been violated because the law mandated he received a 10-year sentence for consensual sodomy, while consensual intercourse between a 15-year-old and a 17-year-old would be only a misdemeanor.
“I thought I was dead-on right [even] without the new legislation,” Bernstein says. She says she and attorney Celeste Sauls Jenks, then a part of Bernstein's firm and a member of Wilson's legal team, had lots of arguments over the approach to take but both were convinced of the argument's merits in the end. A March 2006 decision by the Supreme Court of California that Bernstein says was “dead on” in favor of her argument was validating.
While Mann had not raised constitutional issues at trial, Bernstein says she thought the appellate courts might hear the constitutional arguments given that—while ultimately rejecting them—Douglas County Superior Court Judge David T. Emerson had addressed them on the merits in his order.
But the state Supreme Court saw it differently, transferring Wilson's appeal down to the Court of Appeals on the grounds that Wilson's constitutional arguments hadn't been raised pre-trial.
Although it had no apparent relevance to the legal issues before the court, at the March 2006 oral argument at the Court of Appeals, McDade brought out his biggest weapon in the war for hearts and minds in the case, showing he could play the public relations game, too. The Douglas prosecutors played part of the graphic videotape of the party, stunning Bernstein and, she says, giving heart palpitations to television networks in New York who were getting the arguments through a live video feed.
The result was not good for Wilson. With little fanfare, the Court of Appeals panel quickly dispatched Bernstein's arguments—just two days after Gov. Sonny Perdue signed the new sex offender bill, with its Romeo and Juliet provision, into law. In an opinion written by Judge Herbert E. Phipps and joined by Presiding Judge J.D. Smith and then-Chief Judge John H. Ruffin Jr., the panel said that the Supreme Court's transfer order meant Wilson's constitutional challenge was untimely and thus waived. The opinion also described the young lady Wilson was accused—and acquitted—of raping as “apparently semiconscious” on the video.
“They did not like the tape,” says Bernstein.
On direct appeal, the state Supreme Court gave indications it was wrestling with the case, but ultimately came down on the side of the prosecutors. In September 2006, the Supreme Court denied Bernstein's request that it look at the case, over the dissents of Chief Justice Leah Ward Sears and Justices Robert Benham and Harold D. Melton. Inexplicably, the court promptly vacated that ruling, giving Bernstein a pique of excitement, only to issue the same ruling with the same 4-3 split a few weeks later.
When the state Supreme Court rejected Wilson's motion for reconsideration of that ruling on Dec. 15, 2006, the court's 6-1 majority (only Sears dissented this time) didn't give an official explanation for its refusal to hear the case. But Presiding Justice Carol W. Hunstein suggested what at least one justice was thinking. She said she was “very sympathetic to Wilson's argument regarding the injustice of sentencing this promising young man with good grades and no criminal history to 10 years in prison without parole and a lifetime registration as a sexual offender,” but concluded that HB 1059's provision saying the bill wasn't retroactive bound the court.
Bernstein says that the story of the racially charged rape prosecution of Duke University lacrosse players that unfolded in mid to late 2006 had squeezed out Wilson in the fight for the media's attention. “And that's why you don't put all your cards in the media,” she adds.
But Hunstein's expression of helpless sympathy was an entree to even greater media coverage of the case—and greater awareness among people who couldn't understand why Wilson's problem couldn't be fixed after Dixon's happy ending, Bernstein says. Just four days after the Supreme Court denied cert, the editorial board of the Atlanta Journal-Constitution put out a piece saying Wilson deserved “justice,” not just “condolences.”
And then there was The New York Times.
'I almost dropped the phone'
“When I got the call from the editorial board of The New York Times I almost dropped the phone,” recalls Bernstein, “because that's not something you pursue. You do not pursue—you can't pursue them. They just call you. And they started asking questions, and I remember seeing that editorial early in the morning, and I couldn't believe it. And that's when we entered a whole new zone with this case.”
The title of the Dec. 21, 2006, editorial was forthright: “Free Genarlow Wilson Now.”
The Douglas County prosecutors continued to shrug off criticism. “We have victims that we're looking out for their interest,” Assistant District Attorney J. Edward Barker said that day. “That's our job.”
But Bernstein's phones started ringing off the hook, she says, as the case generated international interest.
A very persistent reporter was calling from ESPN.com, looking for an interview with Wilson. The Department of Corrections only allows so many interviews of inmates, Bernstein explains, and she wasn't convinced a sports Web site was worth one of her chances to tell Wilson's story.
Bernstein says she learned an important lesson after the story came out in January—American men come to work every day and promptly log on to ESPN.com. She says her “Web guy” reported a surge of additional hits on the Wilson Web site as the work day began in each time zone. The number of signatures on the online petition seeking Wilson's release doubled in a day, she recalls. “My e-mail box was insane.”
'The ugliness of politics'
If the media campaign was designed to influence the Legislature, the timing couldn't have been better. Since Hunstein essentially had said the problem was in that body's hands, the defense plan was to go back to the General Assembly.
This second time around, Bernstein
recalls she had a handful of ideas about what the Legislature could do. Her “perfect world scenario” involved legislation that would decriminalize altogether consensual sex between teens of certain ages, making it the stuff of deprivation cases.
Ultimately the vehicle was SB 37, a bill proposed by Sen. Emanuel Jones, D-Decatur.
The case was a special project for several African-American legislators such as Jones and Fort. Jones recalls the civil rights movement when he talks about the case. And he casts the Wilson case as “reliving the struggle all over again.” Some activists insisted Wilson was being prosecuted aggressively because he was black.
But the role of race in the picture was murky at best and didn't fit the neat box of the Dixon case, where a young black teen was prosecuted for sex with a white girl. McDade told local media that race did not play a role in Wilson's case, pointing out that all of the defendants and both victims are black.
SB 37 proposed that a judge could at any point resentence someone convicted of certain sex offenses covered by the new Romeo and Juliet provisions prior to July 2006. Bernstein said at the time that the intent of the bill was to give trial judges clear direction that when resentencing those cases, they could disregard the old mandatory minimums.
Unveiled with a hopeful air in January 2007, the bill carried GOP support from the likes of Sen. Dan Weber, R-Dunwoody. But it quickly turned into what Bernstein calls “the ugliness of politics.”
Jones says he didn't expect such opposition. “I didn't think I had to win against the prosecutorial council and their chief lobbyist. I didn't think they'd ever come against me.”
McDade was legislative chair of the Georgia District Attorneys' Association and a regular presence at the state Capitol. Once again, he brought out the proverbial Exhibit A in both his trial and public relations strategy: the videotape of the December 2003 New Year's Eve party. According to McDade, Bernstein was leading legislators to believe that the conduct at issue in the case was consensual, and certain legislators had asked to see the tape so they could make up their minds on the proposed legislation.
The tape distribution provided one of the more surprising turn of events in the Wilson saga. One evening in July, U.S. Attorney David E. Nahmias issued a statement warning that possession of the video outside the justice system violated federal child pornography laws. While McDade had defended his actions, saying no one could credibly call his sharing the video with legislators criminal given the legislation before the General Assembly, Nahmias' statement only added fuel to the growing fire under the prosecutor.
While several members of the Senate Judiciary Committee said at the time that they had not seen the tape and hadn't been offered a copy, Senate President Pro Tempore Eric Johnson, R-Savannah, told the full Senate after viewing the videotape he had decided to oppose SB 37. He said Wilson was a sexual predator and the two girls involved were victims, not consensual participants.
The legislation never came to a vote. Bernstein recalls sitting at the Legislature with Wilson's mother on so-called crossover day in late March, when a bill must have received approval in at least one chamber to pass as a stand-alone measure that year. Within one or two bills of reaching SB 37 on the list, the day's session ended, driving Bennett to tears.
“And I—was—furious,” Bernstein recalls.
Bernstein says it was a matter of “the political component of 'a DA is always right,' and particularly a DA who was of the same political party, who was at the Legislature all the time, who was the legislative liaison—versus us. I mean, I have no political ties down there.”
Bernstein says it was while she was appearing on CNN within the next week or so to offer commentary on the Duke rape case that she decided it was time to turn back to the other front in her assault on Wilson's sentence. Although the legislative session hadn't ended, the North Carolina attorney general's words inspired her to return to the courts.
“There was the attorney general of North Carolina saying, 'prosecutors aren't always right, DAs aren't always right, and sometimes mistakes have to get fixed,'” she recalls thinking. She hoped Attorney General Thurbert E. Baker—whose duties included responding to habeas actions filed by inmates like Wilson—would have the same reaction to Wilson's case and not oppose a habeas action. “I was like, 'it's time to file the habeas.'”
Since the Court of Appeals had rebuffed Wilson's equal protection argument, Bernstein had been developing other theories for a habeas petition. The centerpiece argument of the habeas she filed in April was that Wilson's sentence was unconstitutionally cruel and unusual.
Not only did the attorney general oppose the petition, he appealed the June ruling by Monroe County Superior Court Chief Judge Thomas H. Wilson (no relation to Genarlow) granting it. She had heard Baker wouldn't appeal, Bernstein recalls, but Baker did so anyway—apparently without pausing for breath. Bernstein recalls being shocked and angry.
McDade got Bernstein riled up, too, when two days later he sent ADA Barker and an investigator to the home of Veda Cannon, the mother of the girl whose encounter with Wilson had resulted in the molestation conviction. He said he was concerned because a Journal-Constitution reporter had told him that Cannon said Barker had threatened to have her arrested if she didn't help the prosecution as the case unfolded.
As detailed in a recording McDade's men made of their conversation with Cannon, Barker insisted he didn't threaten Cannon and suggested she set up a joint meeting with him and the Journal-Constitution reporter to straighten things out. According to local news reports, at a news conference Bernstein called the visit “bizarre” and something out of “a Communist country.”
Meanwhile, pressure was growing on all sides to reach a plea deal that would end the matter.
“I think there was a lot of media pressure on Thurbert and on David to make this problem go away, because it was so patently disproportionate and everyone knew that,” says Balser, who says he “attempted to facilitate discussions to resolve the matter.”
Although Bernstein says the group vowed not to discuss their negotiations, she acknowledges that she met with Baker and McDade together.
In a press release issued June 15, Baker said that Bernstein had rejected an offer that would have resulted in a “substantially shorter prison term as well as the possibility of First Offender treatment,” explaining that meant after Wilson completed probation he wouldn't have a criminal record or be required to register as a sex offender.
Bernstein says first offender status doesn't necessarily exempt someone from the sex offender registry. Moreover, she says, “the problem with all of that was it was always 15 serve 5. Someone would say, well, he could plead to something other than a sex offense, but no one would explain to us what offense that could be, or if they did propose one it was ludicrous. … There's a certain point where you stretch the law beyond any sort of human common sense, for what purpose.”
All the pressure to move positions was on her, she said. “Nobody was working on pushing the DA to change his position that I could see,” she said. “And I just kept being told then, 'Widner, Widner, Widner'”—the name of the defendant who had lost a very similar argument at the Supreme Court the year before.
Bernstein says the pressure over the summer before the Supreme Court argument was “excruciating.”
“Had I been part of the good ol' boy system, would I have been spoken to differently, would I have been treated differently? I don't know,” she says.
Many of Bernstein's close friends were worried about how the pressure was affecting her.
“This particular case, it wore on her,” says Gwinnett County State Court Judge Pamela D. South, a friend of Bernstein from their time together at the University of Georgia's law school and the Gwinnett district attorney's office. “It was tremendous stress, because the stakes were so high.”
Balser says he strongly encouraged Bernstein to consider taking a deal and tackle the sex offender registry problem later. By eschewing his advice, he says, Bernstein showed a lot of courage.
“To her credit and Genarlow's credit, they stuck to their guns, and they achieved a tremendous victory,” says Balser. “I just can't tell you how proud I am of her.”
'Where is the justice?'
The stage for that victory was set July 20 in a packed courtroom, where the state Supreme Court heard arguments in the case. There was some cause for Bernstein to hope, as the court's two female jurists pressed Senior Assistant Attorney General Paula K. Smith about Wilson's sentence, asking, “Where is the justice?”
Bernstein knew that as the months dragged on with no decision, it meant there was disagreement among the justices. She told Wilson's family that she thought it would be at least November before the court ruled, and she showed up to work in jeans and a T-shirt the Friday in October when the court issued its 4-3 ruling in her client's favor.
The dissenters—Melton and Justices P. Harris Hines and George H. Carley —charged the majority with showing an “unprecedented disregard for the General Assembly's constitutional authority.” As shown in the partial dissent written by Carley, they also weren't impressed by Sears' attempt to distinguish the court's decision on the Widner case in her majority opinion; it's unclear from what source the majority found information about the relevant ages in the Widner case that was more detailed than that found in last year's opinion in the case.
But it was a clear victory for Wilson. The court's majority said it wasn't applying the Romeo and Juliet provision retroactively but could use it as evidence that Wilson's punishment was cruel and unusual.
Baker, too, was able to claim some validation for his actions. The court said the habeas judge acted improperly when he resentenced Wilson for a lesser misdemeanor offense, rather than simply discharging him from custody, and after the ruling Baker said it was that action that had led him to appeal. With Baker's cooperation, Bernstein was able to get Wilson out of prison that afternoon.
Did she have a Plan B in case she lost? “I don't know,” she says, musing that she might have filed a request for review with the U.S. Supreme Court and renewed negotiations. “But I would have come up with something, I think,” she says, punctuating with her ready and disarming giggle.
Why did she win—was it the media?
Bernstein says that the media campaign was not designed to influence a court but a legislative body. But the outcome begs the question of how much that campaign contributed to her eventual success in court.
Given traditional notions of court independence, it's not good form for lawyers to say judges are bowing to public opinion in rendering a decision. So, while lawyers who appear before the court don't all say the case's publicity was irrelevant to the justices, they're cautious in explaining the relationship.
For example, Key, Widner's lawyer, is quick to note the connection between public opinion and the Eighth Amendment cruel and unusual punishment analysis.
“Part of the test for cruel and unusual punishment is does the punishment shock the conscience,” says Key, “and clearly the kind of public outrage that was shown maybe helped to show the justices the extent to which the minimum mandatory sentence in cases like this does shock the conscience.”
Like Key, Alfred D. Dixon, a former prosecutor in Fulton County and the Griffin Judicial Circuit who recently went into private practice, says public interest in the case did impact the court's decision. “I think it was probably a political decision,” Dixon says, noting he thought the ruling was “just.” But then Dixon, who is now representing two of Wilson's co-defendants in their attempts to get parole, softens his comments, saying the public interest in the case and outcry from the community may have mattered more than it being “a political thing.”
Sadow is careful to say that he doesn't want to suggest that the Supreme Court would have reached a different result without the public attention. But, Sadow says, “I don't think if that had been just a run-of-the-mill case that the court would have had occasion to look at it as carefully.”
Johnson, the Republican legislative leader who fought legislation designed to help Wilson, isn't a lawyer, and he is blunt in characterizing the court's decision: “The Supreme Court bowed to political correctness.”
In a July Journal-Constitution article, Johnson was quoted as suggesting that Bernstein was out for publicity more for herself than to help her client, saying “[t]here does appear to be more of an attempt for publicity and future book and movie deals and limousines and Web sites and publicists.” Now, he extends his criticism to the court that ruled in her favor, as well.
“I think the Supreme Court justices, whether they admit it or not, are elected candidates and they're sensitive to media and public perception,” says Johnson. “I think in this case they went against previous decisions that they had ruled on.”
He noted the previous unanimous decision against Widner, where the facts were similar. There was no national media attention on that case, notes Johnson. “That should be a pretty clear sign that the court was listening to outside influences.”
Late last month, Henry County District Attorney Tommy K. Floyd agreed to an unusual deal that would keep Widner, who earned his GED in prison, subject to registry as a sex offender but allow him to walk out of prison after serving less than five years of his original 10-year sentence. Widner's attorney, Key, says that in the end there was some benefit to not seeking media attention for his case, as it “gave the prosecutor time to look at all of this and to sort of decide on his own if this was really justice.”
But Key acknowledges that if he had it to do over again, he would have handled the Widner case differently. “His story was compelling, and I think had the public seen what had happened to him earlier it would have been outraged,” says Key, noting he sees now how courts can respond to public outrage. “I think I've shifted from a more law school understanding of how this all works to a more realistic one.”
For her part, Bernstein professes to be somewhat agnostic on the question of how much public opinion affected the court's ruling in favor of her client. “I don't know if we'll ever know completely,” she says.
She notes public opinion polls allowed the justices to be “comfortable” with their ruling but also recalls that the role of the courts often is to go against public opinion. “I don't necessarily believe public opinion is always what influences them. I think it's what's right.”
Sadow adds that criminal defense attorneys are not united in a belief that “true justice was done” in the Wilson case. Some think that Wilson received “preferential treatment,” says Sadow, noting he's not of that view. “I think that some saw this as a remedy for one,” says Sadow, “whereas the hope of criminal defense attorneys across the board is we have justice for all.”
Asked about that criticism, Bernstein says that she had one client—Genarlow Wilson. “There are not thousands, but for Genarlow Wilson it had to be fixed, even if it is one person,” says Bernstein. Moreover, she says the case can help other young defendants and spark a discussion rethinking mandatory minimums.
Sadow comes to Bernstein's defense over criticism that she sought media attention in an effort to promote herself, rather than her client.
Sadow calls such criticism “foolishness.”
“She was playing the media like a violin,” he says. “The more the state had to justify this unjust treatment the better it becomes for B.J. and her client.”
Bernstein bristles at the notion that she was in it for herself. “I was always clear with them that it was a long shot, but they made up their mind,” she says, referencing the passage in the January 2006 Atlanta Magazine article where McDade says “people” were whispering in Wilson's ear that they would make him famous like Dixon. “And so once they made up their mind, I had my marching orders to do what I had to do to do it. But to say I'm doing this because I was going to make him famous or me famous … there was just no way. That was not the case.”
Waiting to see what walks in the door
Perhaps the best rebuttal of the suggestion that Bernstein was mainly seeking fame for herself is the relatively modest, anonymous setting in which she practices law now.
A visitor to Bernstein's second-floor offices at Colony Square in Midtown is greeted by a friendly receptionist—who's answering the phones for Bernstein, as well as other nearby professional offices. There's no marquee in the waiting area announcing you've entered the offices of The Bernstein Firm, where Bernstein and her colleague Sherry Boston have offices similar to those housing first-year associates at corporate firms.
Bernstein says she had to leave her more distinctive offices near City Hall East in August because she had been working on Wilson's case pro bono for so long. With her focus on Wilson, she says, she wasn't bringing in enough paying business to keep busy the three other lawyers in her firm, who have since departed.
But Bernstein isn't complaining, easily talking about her relationships with her young clients. She says she bonds with her young clients more than others. “I joke … I don't have any kids, but I have lots of kids,” says Bernstein.
To illustrate, she grabs her mass of keys, which includes a Narcotics Anonymous 30-day sobriety key chain passed on by a former child prostitute for whom Bernstein served as a guardian.
“She's handled cases with very young people involved,” says Bernstein's friend, Judge South. “I think that's where her heart lies.”
But Wilson was special, says Bernstein.
Bernstein, who easily refers to Wilson as “honey” when she dials him up now, says she bonded with Wilson on the many prison visits and phone calls they shared.
“He was special because he was three years, and three years of visiting and talking, and he's a remarkably bright kid, and I watched the change,” she says. “You know, not all kids when you sit there and say I want you to accept spiritually what's happening to you, and I want you to read some books and think about it, think of the bigger picture, they're going to do it. And he did.”
Wilson certainly expresses no complaints.
“I think she did an excellent job,” says Wilson. “She never gave up on me.” He says they didn't really disagree on any aspects of the case, and Bernstein always explained things to him. “I believe in the courts … but if you're not a lawyer, it's very complicated to have to figure out,” he says.
Wilson is set to begin classes at Morehouse College next month, and life is more ordinary for Bernstein now. The day after the Supreme Court handed her a victory, she was at a previously scheduled appearance in Fayette County speaking to youth about her “My 5th” project, designed to educate young people about their rights within—and the perils of—the law. Within a week after she won the Supreme Court victory, she and Smith, the lawyer from the AG's office who was her adversary there, were back in court at the 11th U.S. Circuit Court of Appeals, arguing a felony murder case on habeas.
She hopes the Wilson case will be good for her practice.
“It does hopefully give the perception, I believe, that I can handle anything that any other criminal defense lawyer in the city can handle and do it well.” Noting the likes of go-to defense lawyers like Sadow and Edward T. M. Garland, she says “there's never been a woman that you sit there and say that she can hold her own as well. Hopefully this has shown that there's me—and there're others out there, too. We just don't know their name.”
While acknowledging that the case was “huge” for her, she says she hopes it's not the only case she handles that has an impact on the law. Noting that she once flirted with the notion of being a judge (and twice was on the shortlist for the Fulton bench), she says the Wilson ordeal has reaffirmed her faith that she should be practicing law instead. “Now I can step back and say apparently I had a lot more fight in me, that I'm doing the right thing I was supposed to be doing.”
But right now she has no big project in the works—although she says she's getting lots of calls asking her to handle cases pro bono. “I'm just practicing law,” she says. “We'll see what walks in the door.”
Friday, December 21, 2007
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Be ready for a lot more homeless sex offenders!
Some say Tavares' planned 2,500-foot limit would not work and is discriminatory.
TAVARES - Child molesters soon may find it more difficult to secure a place to live in Lake County.
Tavares City Council members this week gave preliminary approval to an ordinance that would prohibit many sex offenders and predators from living within 2,500 feet of certain areas where children congregate, including schools, school-bus stops, day-care centers, parks and playgrounds.
A final vote on the ordinance is scheduled for Jan. 16. If enacted, Tavares would join several Lake County cities and nearly 100 Florida municipalities that have gone beyond the state law, which prohibits many convicted child sex offenders from living within 1,000 feet of many of the same areas.
Mount Dora, Clermont, Fruitland Park, Mascotte and Groveland already have enacted tougher restrictions.
According to Tavares police Chief Stoney Lubins, the proposed ordinance would prevent Tavares from becoming known as a "safe haven" for registered sex offenders looking for a place to live.
"If they want to live somewhere in Lake and live in a city, it's only logical that someone with a sex-offender history would want to come live here," he said. "And that's a little disconcerting to our residents, and especially to me as a law-enforcement official."
The Florida Department of Law Enforcement Web site lists 17 registered sex offenders living in Tavares, a city of more than 13,000 residents.
The proposed ordinance, however, would not apply to sex offenders living in Tavares before passage of the new rules, as long as they stay in the same home.
Even so, it would leave only a few locations in Tavares where offenders could reside.
Driving predators away
Critics say that more-restrictive ordinances for child molesters would discourage them from registering where they live or drive them into areas that do not have such rules.
Lake County and the city of Eustis do not have ordinances restricting where offenders may live beyond the state's requirements.
But Lubins said that every month, his police officers visit the homes of registered offenders.
"They knock on doors and ask, 'Are you still here?' " Lubins said.
Norb Thomas, a former Tavares police chief, was the only council member to vote against the proposed restrictions Wednesday.
"Are we passing something that feels good, or are we passing something that does good?" he said.
Thomas said that "monitoring, monitoring, monitoring" of registered sex offenders and predators likely would be a better strategy.
Mayor Nancy Clutts, who voted for the ordinance, agreed that monitoring is important.
"But we have to recognize that we are the county seat and that we turn out prisoners [from the Lake County Jail] on a daily basis, and our residents wanted that additional buffer of security," she said.
Political, not functional?
Bernie Welch, a Mount Dora resident, called the proposed ordinance "more political than functional." He urged council members to hire additional police officers to monitor offenders instead.
"If you think these sex offenders are so dangerous, do not force them on even more vulnerable citizens who live in the outlying areas, or force them into a more transient, hidden life," he said.
He added that laws restricting where sex offenders can live "institutionalize intolerance" and discrimination.
"Are we denying these persons a place of forgiveness in the city of Tavares?" Welch asked.
Lubins said convicted sex offenders and predators are felons who have lost many of their rights.
"This is not a perfect ordinance; this is not a perfect solution," Lubins said. "But this ordinance is a small tool that we can employ along with a variety of other measures."
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GPS Monitoring, Accountability Issues Among Major Concerns
SACRAMENTO -- An advisory panel created by Gov. Arnold Schwarzenegger considered Thursday how to fix the sex-offender law passed last year because it fails to say who is responsible for tracking their whereabouts once they complete parole.
That means hundreds of offenders in California are not being monitored by global positioning systems, despite the law's requirement for lifetime tracking.
The initiative, known as Jessica's Law, was approved by 70 percent of voters in 2006. It stiffens penalties for sex offenders, prohibits released offenders from living within 2,000 feet of a school or park and requires that they wear satellite tracking devices for the rest of their lives.
But the law doesn't specify whether the state, counties or local police departments should have jurisdiction over offenders once they are off parole. It also does not include money to pay for lifetime GPS monitoring and has no penalty for ex-parolees who simply remove the ankle bracelets.
"The simple answer is the statute doesn't say who is responsible for this," said Jerry Powers, chief probation officer in Stanislaus County.
Powers is a member of Gov. Arnold Schwarzenegger's 15-member Sex Offender Management Board, created to help interpret and implement the law.
State corrections Secretary James Tilton told the board in October that his department was removing GPS devices from 500 ex-convicts who had completed parole, despite the lifetime monitoring requirement. About 160 more former parolees have been freed from monitoring since then.
Tilton asked the board for advice about which agency should have the responsibility. In a draft response, the panel said there is no answer in the law.
Representatives of county sheriff and local police departments said they do not have enough money or sufficient staff to take over the monitoring program.
The corrections department estimates it could cost about $7 per day to monitor each offender with a minimal GPS monitoring system. The state's more extensive GPS system costs about $33 per offender per day, but that includes the cost of the parole agents.
"We don't know what it's going to cost, and the conservative estimates are hundreds of millions of dollars" as more offenders complete parole, said Nancy O'Malley, chief assistant district attorney in Alameda County.
State Sen. George Runner, who co-authored Jessica's Law, said he intended that local governments have responsibility for monitoring while the state picks up the cost.
"The voters said they want it done," Runner said in an interview after addressing the board. "We believe the state should step up and pay for it."
Runner, R-Lancaster, is backing an anti-gang initiative for the November 2008 ballot that includes $15 million annually to fund local governments' GPS tracking of sex offenders and gang members.
Runner said he also is considering legislation that would make it a crime for a former parolee to remove a GPS unit. The state attorney general's office has said the lifetime GPS requirement is currently unenforceable because Jessica's Law does not include a criminal penalty for refusing to wear the devices.
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A former Coachella Valley news anchor arrested last year in a sting aimed at pedophiles will likely receive probation when he is sentenced today, his attorney said.
Jim Philbrick, 45, reached a plea deal with the Riverside County District Attorney's Office Nov. 7.
He was in the midst of a preliminary hearing to determine if there was enough evidence for him to stand trial on felony charges of attempted lewd acts on a child younger than 14 and attempting to distribute harmful matter to a minor.
As a result of the deal, he pleaded guilty to misdemeanor attempting to distribute harmful matter to a minor over the Internet and another misdemeanor charge of soliciting a lewd act in a public place, meaning he will not have to register as a sex offender.
He could get up to nine months in jail, but his attorney, John Patrick Dolan, said he doubted that would happen.
"I think probably the judge will put him on summary probation and impose a fine," Dolan said, adding Philbrick pleaded guilty to what he termed "low-grade misdemeanors."
"I've contended all along this was a drive-by sex crime," Dolan said.
"It just goes to show the case was nothing to begin with because the judge dismissed the felonies."
Philbrick, who previously worked for NBC affiliate KMIR-TV and CBS affiliate KPSP-TV, was arrested in March 2006 during a sting aimed at pedophiles conducted by Internet watchdog group Perverted Justice and the Palm Springs Police Department.
Video of several of the groups controversial operations have been broadcast on NBC's "Dateline."
Philbrick, who is openly gay, admitted visiting a chat room for gay adults, but maintained that believed he was role-playing with other adults.
He chatted online with a Perverted Justice decoy, Sean O'Connor, 25, of Florida, who was pretending to be a minor, according to investigators.
After chatting online with O'Connor for three days, Philbrick allegedly agreed to meet the "boy" at the Palm Springs Tennis Center on East Baristo Road, where a young police employee waited.
As investigators watched, Philbrick drove by in his Lexus, but kept going after he saw the police decoy.
Police arrested him about 20 minutes later during a traffic stop later broadcast on the FOX television show "COPS."
Following last month's plea deal, Ingrid Wyatt, a spokeswoman for the Riverside County District Attorney's Office said her office agreed to the deal in part because of Philbrick's "lack of criminal record."
Philbrick, who left the courtroom smiling last month, said he continued to maintain that he thought he was talking to another adult in a gay chat room.
"I think this is quite a victory," he said. "We turned four felonies into two misdemeanors."
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Imagine a former corrections officer being sentenced to serve time in the jail where he once worked — a fellow prisoner among some of the same inmates he once guarded and supervised — under the direction of his former colleagues.
You don't have to imagine anymore. That's what happened this week to Mark Gutshall, 39, of Blakeslee. Gutshall, who pleaded guilty to institutional sexual assault for his involvement with an inmate, was sentenced to serve three to 23 months in the Monroe County Correctional Facility.
Three other corrections officers also were charged with having sexual contact with inmates at the Snydersville jail in 2006. Former officer Dana Simpson, 34, of Tobyhanna has pleaded no contest to sexual misconduct but hasn't yet been sentenced.
Three others have pleaded to charges they provided illegal contraband — their cell phones — to inmates.
"Mr. Gutshall violated the trust of the inmates for whom he was responsible, the trust of his employer and the public's trust," Monroe County Judge Margherita Worthington said at sentencing.
Gutshall may be an inmate only for three months, but a sentence of any jail time sends a clear message that such conduct won't be tolerated. It will no doubt leave a clear impression not only on Gutshall, but on all correctional facility employees and inmates.
The sentence may do as much to change the culture that contributed to the sex scandal as the numerous reforms being enacted or contemplated by the administration and Monroe County Prison Board.