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Another Nifong?

According to this post by Radley Balko about the Genarlow Wilson case, it is sure starting to look that way.

It seems that DA McDade, with the help of Sen. Johnson, is attempting to use video footage of the act for which Wilson was acquitted of rape to tarnish Wilson’s image, and quell the mounting public outrage over his sentence for the consensual oral sex. Griftdrift points to the following passage from the Georgia Bar on prosecutoral responsibilities:

The prosecutor in a criminal case shall:

(g) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused

I have to admit there is something particularly disturbing when a DA is handing out a video tape to potential supporters that depicts sex and where one of the individuals is only 17 years of age. If I did something like this, the Feds would likely be knocking on my door…oh sorry, busting down the door, killing my dogs and taking my entire family into custody. When the people who are appointed to protect us and enforce certain laws routinely break them in such a dubious way it undermines our entire system. Worst case example, Mike Nifong. Further, as these kinds of cases keep popping up it makes people even more doubtful of our legal system.

Balko also points to the Walsh Act on the dissemination of pornography to defense attorneys and wonders how a DA can then turn around and distribute what might very well be considered pornography to potential supporters.

The punchline to all of this is that under the new federal law the Walsh Act, defense attorneys in child pornography cases are given extremely limited access to the evidence (read: the pictures) against their clients, to the point where the defense bar says it hampers their ability to mount an adequate defense (thanks to De Novo for the tip). All the evidence remains in the state’s hands, making it difficult for defense experts to review it. Here are the congressional findings explaining the need for the access provisions in the Wash Act:

“every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse,” and therefore, “it is imperative to prohibit the reproduction of child pornography in criminal cases.”

If that’s the justification for barring defense counsel access to evidence against their clients, I don’t see how McDade should possibly be allowed to get away with distributing child porn to condemn Genarlow Wilson for a crime for which he’s already been acquitted.

Note that Wilson has already been acquitted of the rape charge that is depicted on the video tape.

It sure does indeed look like we’ve seen this kind of thing before.

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About Steve Verdon
Steve has a B.A. in Economics from the University of California, Los Angeles and attended graduate school at The George Washington University, leaving school shortly before staring work on his dissertation when his first child was born. He works in the energy industry and prior to that worked at the Bureau of Labor Statistics in the Division of Price Index and Number Research.

Comments

  1. Billy says:

    At the very, very least, this is actionable invasion of privacy, not only of Wilson, but of his “victim.” If it’s done by accusing Wilson of Rape (for which he has been acquitted), it’s likely defamation as well.

    Criminal charges also seem appropriate if the “victim” is indeed 17.

    Any one of these things are grounds for sanction, including disbarment, by the bar association. Let’s hope Georgia has something of a sense of fairness and can follow North Carolina’s lead.

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  2. JKB says:

    It is quite amazing that these prosecutors have been able to bring even more disrepute to the practice of law. I read that McDade claimed the distribution was legal but then promptly advised all those in possession of a copy of this child pornography to destroy it. Now if only it was discovered that he shipped it across state lines or through the mail, then dealing with this wouldn’t be up to the Georgia good ole boys.

    Note to the Georgia politicals who received this tape, the FBI did the Tennessee Waltz, best you be careful you don’t end up doing the Georgia Crawl.

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  3. Bithead says:

    For all that the DA, is out of line, one does wonder, how is that if they have videotape of the crime taking place, they don’t have the conviction?

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  4. Anon says:

    For all that the DA, is out of line, one does wonder, how is that if they have videotape of the crime taking place, they don’t have the conviction?

    Not sure what you are suggesting. One conclusion might be that there was no crime.

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  5. Gollum says:

    . . . a video tape to potential supporters that depicts sex and where one of the individuals is only 17 years of age.

    Actually, they were both underage. Wilson was 17 at the time of the “offense,” the “victim” was 15.

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  6. Steve Verdon says:

    Gollum,

    Thanks, I keep forgetting that, which makes even the fellation from the 15 year old hard to believe…especially a 10 year conviction.

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  7. Gollum says:

    - – oops. This is worth clarifying. The tape shows two acts, one of Wilson (then 17) having sex with another 17-year old, and one of Wilson getting oral sex from a 15-year old. The incident with the 17-year old was originally charged as a rape, and that was what the jury acquitted him of. The incident with the 15-year old was charged as aggravated child molestation, and Wilson was convicted for that (and remains in jail).

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  8. Bithead says:

    This may come down to how the state law is written. But if I recall correctly, in most states (Certainly here in the Vampire State) fifteen is below the age of consent. Therefore, any sexual contact between any individual and at least the fifteen year old, ad possibly the 17 year old, is by definition, rape, since consent could not be given for the contact.

    I say again, I’m amazed that they didn’t manage to get a conviction.

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  9. Gollum says:

    The age of consent in GA is apparently 16, but the sex with the 17-year old was charged as rape b/c she was too drunk to consent.

    Curiously, had Wilson had full intercourse w/ the 15 year old the most he could have received in prison time was 12 months, but the oral sex made it “aggravated” which merited the longer term.

    Also a curiousity, federal law defines child porn as a video of sex between individuals under age 18 – – so even though sex between two 17-year olds would not constitute a crime under GA law, filming it results in creating of kiddie porn under federal law.

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  10. Steve Verdon says:

    Gollum,

    And distributing, as the DA has apparently done, is also highly illegal.

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  11. Billy says:

    This may come down to how the state law is written. But if I recall correctly, in most states (Certainly here in the Vampire State) fifteen is below the age of consent. Therefore, any sexual contact between any individual and at least the fifteen year old, ad possibly the 17 year old, is by definition, rape, since consent could not be given for the contact.

    That’s not exactly right; it would be statutory rape, which in many states goes by other names (“child molestation;” “sexual battery of a minor;” etc). Rape is a different crime with different penalties, and involves intent and lack of consent, neither of which is required for statutory rape. Under most if not all the statutory rape laws, liability is strict on the part of the defendant – if a man has sex with a minor, his intent/knowledge to do so and her consent are irrelevant, rendering the question of whether a minor can properly consent a non-issue (and contrary to popular belief, minors of a certain age can consent in many situations).

    Statutory rape is highly dependent on the age of consent in the forum state, which generally ranges from 16-18, though some states have “close in age” exceptions for defendants (e.g., under 21 if “victim” is at least 14; no more than 3 years separating the parties). On the other end of the spectrum, some states make no exception for children of the same age, and both are considered to statutorily rape each other (though courts have nonsensically upheld convictions where the prosecution chooses only to prosecute the male).

    Georgia’s age of consent appears to be 16, with reduction from felony to misdemeanor for Defendants who are 18 or younger if the “victim” is no more than four years younger than the Defendant. I believe the law was actually changed in this manner as a response to Mr. Wilson’s unjustifiably harsh sentence, though it was not done so retroactively so that he would be aided by the recognition of inequity in his case.

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  12. The Knucklehead of the Day award…

    Today’s winner is Douglas County(Georgia) DA David McDade….

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  13. [...] as a child pornographer. Has American Justice gotten that warped and sick? Steve Verdon at OTB writes in a post titled Another Nifong?- I have to admit there is something particularly disturbing when a [...]

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  14. [...] as a child pornographer. Has American Justice gotten that warped and sick? Steve Verdon at OTB writes in a post titled Another Nifong?- I have to admit there is something particularly disturbing when a [...]

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  15. PG says:

    The video proves the statutory rape charge, because it depicts someone who was under the age of consent performing a sexual act on another person. However, the reason the prosecutor is distributing the video is to stir up animus toward Wilson for the charge that failed, i.e. the one of sexual assault on the 17 year old. Because all of the participants were minors, all of the tape constitutes child pornography. Had Wilson been in possession of the tape and charged with child porn possession (as some of the child participants in child porn have been charged), the Walsh Act would require the prosecution to confiscate the tape and not allow the defense to have a copy, not even to have an expert witness assess it. Apparently a Georgia prosecutor could distribute the tape to everyone *except* the defense, however.

    The Walsh Act really does get applied. I was sitting in a Southern District of New York courtroom recently and watched the lawyer for a defendant who has been sitting in jail for seven months point out that he still has not seen the evidence against his client — i.e., the child porn.

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