Genarlow Wilson and the N Word

I'm referring of course to "Nifong."

Georgia political blogger Griftdrift has been all over the Wilson case, since February. He posts a summary on the Volokh site:

The tape story began in the last legislative session during arguments to make the change in the law retroactive so as to encompass Genarlow Wilson. Senate President Pro Tem Eric Johnson rose in the Senate and delivered a lie-laced speech which included alluding that rape had indeed occurred. A CNN reporter covering the case caught the speech on tape. He then went to D.A. McDade's office, viewed the tape, spoke to jurors and publicly pantsed Johnson for his fibbing.

Johnson continued his campaign by appearing on a local talk radio show. He admitted he had seen the tape and basically used the argument that if anyone saw the tape they would change their mind.

After questioning by myself and others Johnson admitted he had a copy of the tape and it was hand delivered to him by the D.A.s office.

District Attorney McDade or his office has been handing out copies of the tape to anyone he feels may be sympathetic, apparently including syndicated talk show host Neil Boortz. But despite the "just trust me" assurances of Wilson's detractors asserting that the tape clearly shows a rape, the jury in the case saw differently.

Jurors voted to acquit Wilson of raping the 17-year-old.

"I mean it wasn't even an hour," said jury forewoman Marie Manigault. "We immediately saw the tape for what it was. We went back and saw it again and saw what actually happened and everybody immediately said not guilty."

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

Griftdrift thiks this is iffy. I'm not so sure. Remember, the video was being distributed illegally, and was distributed and shown to media and politicians in order to spur public condemnation of Wilson based on a charge for which he was acquitted. What's more, after viewing his copy of the tape, Sen. Johnson used it to argue in the state senate against making the Georgia law repealing the poorly written prior statute retroactive, so as to apply to Wilson.

That's certainly much more than a "statement," and it goes above and beyond merely informing the public of why the prosecutor brought charges against Wilson in the first place. The rape case is settled. That charge can't be brought again. Instead, McDade's selectively airing the videotape, to try Wilson again in the court of public opinion.

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. 

Then there's the matter of how the mother of alleged victim keeps changing her story after repeated visits from McDade's office. Or how McDade's office surreptitiously taped a conversation between the mother and a reporter from the Atlanta Journal Constitution.

So let's recap: You have a star athlete accused of rape. You have a prosecutor who brings charges he probably shouldn't have, based on flimsy evidence, in this case an apparently ambiguous video. Said prosecutor then engages in ethically dubious and possibly criminal behavior to preserve the conviction and turn public opinion against the accused. And you have an ever-evolving story from the side of the alleged victim.

Where have I heard all of this before?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    The biggest similarity is how all this is just business as usual, and we only know about it because someone with money thinks their boy should get 'special treatment'. In other words, they don't think he should get railroaded like everyone else.

  • ||

    Maybe McDade sees this as something on the order of having a World Series grand slam erased from his record. Or maybe he's just a douche.

  • SPD||

    From Reade Seligmann's statement:"If it is possible for law enforcement officials to systematically railroad us with no evidence whatsoever, it is frightening to think what they could do to those who do not to have the resources to defend themselves."

    We're about to find out.

  • Sandy||

    Don't be silly. The accused is black. Therefore, the conservative talk radio machine will not go into overdrive to get him off like it did the Duke boys.

    "By this time, the Duke boys were thinking they ought to get frequent flyer miles in the General Lee..."

  • ||

    Sandy,
    You forget, the accused is a star football player.

  • Timothy||

    Stop me if I'm wrong, here, but aren't retroactive laws wildly unconstitutional?

  • Timothy||

    AH, never mind, making the repeal retroactive...learn to read Tim.

  • Bob||

    He done the crime, he done gots to do the time.

  • The Wine Commonsewer®||

    the accused is a star football player

    Booster Club prolly bought him the room at the Days Inn.

  • Episiarch||

    There are two benefits the bigger this gets. 1) The kid gets out of prison and has the conviction repealed. 2) We have another huge Nifongesque case about prosecutorial misconduct bringing it to people's attention.

    Go scandal! I hope McDade* eats a spurious charge of child pornography distribution just like he made Wilson eat a spurious charge and most likely has done to others as well.

    *McDude? McQuaid? MacLain?

  • The Wine Commonsewer®||

    I hope McDade* eats a spurious charge of child pornography distribution

    So, we're all pissed that Wilson is going down on a dubious technicality but it's just peachy to nail McDuck on a similar dubious technicality. That about right?

  • ||

    TWC,
    You're right of course. But it's usually my first reaction to seeing injustice, to wish the same on those responcible.

  • ||

    Stop me if I'm wrong, here, but aren't retroactive laws wildly unconstitutional?

    I believe you can'make something illegal retroactively and punish someone, but in this case the law would be in essence applying forgiving past violations of bad law.

  • ||

    can'make should be can't make

  • ktc2||

    Dunno, some would say it's fitting to see an evil doer caught in their own trap.

    I'm . . . conflicted on that. I'd like to see him prosecuted for it at least to bring attention to the issue of prosecutorial misconduct as a whole.

    Wouldn't it be GREAT to have some public attention on what his type does routinely and proudly to those who can't afford a good defense?

    I think the current state of prosecutors is a BIG problem.

  • ktc2||

    It's way past time that all prosecutors came under heavy scrutiny. Their job is NOT to "get convictions" without regard for truth or justice.

  • ||

    The key, is to convict the right people on trumped up charges. Yeah that's the ticket.

  • Episiarch||

    So, we're all pissed that Wilson is going down on a dubious technicality but it's just peachy to nail McDuck on a similar dubious technicality. That about right?

    You make a valid point, and I'd rather McDuck got charged properly: for abuse of power. But there are so many safeguards protecting prosecutors (put into law by people in the same system) that something has to be done. If this is the way to point out that spurious charges suck, then so be it.

    I have no pity for abusers of the system being abused by the system which they so casually abused others with.

  • Radley Balko||

    To be clear, I'm not calling for McDade to be criminally prosecuted.

    But I do think his ethical breeches are more than mere technicalities. And I'd have no problem if he were sanctioned by the bar.

  • Xanthippas||

    This whole imbroglio is disgusting, and there's no justice to be found anywhere in locking up a teenager for having consensual sex with someone.

  • Episiarch||

    To be clear, I'm not calling for McDade to be criminally prosecuted.

    I disagree. Prosecutors will only stop doing shit like this if they are afraid to. I know that this could have an effect on their prosecution of real crimes, but I really believe that it is better that 1000 guilty men go free than one innocent man goes to prison.

  • The Wine Commonsewer®||

    and there's no justice to be found anywhere.....

    You could just stop right there and that'd pretty much cover the bases.

    I have no pity for abusers of the system being abused by the system which they so casually abused others with.

    That's tempting, especially if it applies to prison guards.

  • Scooby||

    "To be clear, I'm not calling for McDade to be criminally prosecuted."

    Going ahead with the prosecution and the appeal are his job. I think it's overzealous and wrong, but it does fall within the scope of his duties.

    Distributing a "child sex tape" to sway public opinion is not part of his job and has nothing to do with the process of the prosecution and/or appeal. It's not like the tape is in some grey area (such as adults portraying kids, cartoons, textual depictions)- the video explicitly portrays underage persons engaged in sexual activity. Whereever the brightline separating the legal from the forbidden, this plainly falls on the child pornography side. Random Joe off the street would be looking at a count of distributing child pornography for each copy sent out, and would be facing approximately a gazillion years in PMITA prison. This guy shouldn't be worrying about his law license, he should be worrying about a facing a prosecutor anywhere near as zealous as he is.

  • robc||

    I dont think the child porn charges are at all spurious. He distributed a tape of underage people having sex to people who had no connection with the trial.

    Open and shut, slam dunk case. If he isnt arrested and tried it will be a miscarriage of justice.

  • robc||

    Apparently today Im just following Scooby around repeating whatever he says.

  • ||

    I'm glad that Mr. Wilson has found some support. He badly needs it. Notice that the other defendants in the case all keeled over and plea-bargained to a much lesser sentence.

    More frightening to any man should be the Walsh act and numerous other, similar laws based on this idiotic statement:

    "every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse,"

    What a roundabout bogus justification to deny defendants their constitutionally guaranteed right to review the evidence used against them.
    It is a fact that the war on drugs has laid the ground for wholesale abrogation of the Constitution, the war on child porn has expanded on that. It is a tailor-made issue for all kinds of control-freaks in law enforcement to get ever more powers: No mere citizen is allowed to check on the veracity of their claims, no jounalist can investigate, instead, gullible media have parroted the LEA line.
    To wit: The USAG, who has made the same statement, wants us to believe that child porn is a $ 2.000.000.000, yes 2 billion, industry. $2 Bio changing hands in exchange of consideration, being laundered and spent. All this without leaving a readily detectable trace in the form of some high-profile convictions?
    Bollocks, I say!

  • bill||

    Don't forget to charge everyone who watched or has a copy of the tape. Especially that legislator.

  • mikem||

    "Open and shut, slam dunk case. If he isnt arrested and tried it will be a miscarriage of justice."

    Indeed. The trial judge must be imprisoned as well, otherwise we are all hypocrites. Let's just put everyone in jail who handled the video. It's the right thing to do, not political or ideological. Rack 'em up, libertarians!

  • Scooby||

    People who received the tape unsolicited aren't
    fault- not that it would stop the typical federal prosecuter.

    I just thought of another charge, if we truly want to "trump up" some charges. If Mr. McDade sent the videos out unsolicited via the interweb, he might also be guilty of violations of the CAN-SPAM act (the "P" stands for pr0n).

  • ||

    Actually, unless McDade has signed releases from the parents and/or guardians of every kid in that video, he's eminently liable if he's been circulating outside the evidence/court chain. From what I gather, he didn't even make an effort to obscure the faces of the minors not involved in the case...

  • griftdrift||

    According to a statement from McDade's office to the CBS affiliate here in Atlanta, they didn't even keep written records of the alleged open records requests. So I think its safe to say there aren't any releases either. From what I understand, the tapes are unedited.

    And thanks for the links Radley. It's good for this story to start travelling beyond our state lines.

  • griftdrift||

    A little more information.

    Here is the Channel 46 report where McDade states his office doesn't keep a "list or a database" of the open records requests.

    http://www.cbs46.com/video/13633189/detail.html

  • wsdave||

    Someone commented on this yesterday, and I'm wondering now:

    If I say that I want to have sex with you, and then I get drunk and we have sex, did you just rape me because at the time of the sex I could not give consent?

    If this is so, can I sue my doctor for performing surgery while I was knocked out (on drugs he supplied, no less)?

  • ||

    While giving out the tapes was a bad idea, I think some of you may be confused about the case.

    He was acquitted of the rape charge but convicted of child molestation. There's nothing ambiguous about what the tape shows as near as I can tell reading new accounts.

    It's a tape of a party and includes footage of Wilson receiving oral sex from a 15 year old.

    In fact, to seek classification of the tape as child porn kind of acknowledges the defendant's guilt on that point.

    The law has been changed since Wilson was convicted and he's been offered several deals, but he (or his lawyer) won't accept anything apparently other than complete vindication.

    And since it's pretty clear that he had a form of sex with someone regarded as unable to consent because of her age and was convicted, complete vindication isn't forthcoming. So his advocates now think that attacking the DA about the tape is an appropriate course of action.

  • DADvocate||

    Racism, pure and simple.

    McDade deserves the Lester Maddox Award.

  • griftdrift||

    Actually NDC the reason he won't take the deal (and the deal is plead guilty to a felony where he would serve 5 years and be on probation for an additional 10 years) is because he would be on the sex offender registry. A scarlet letter he would live with, given Georgia's record on removing people from the list, for probably the rest of his life.

    Not complete vindication. Just what is fair.

  • bill||

    "In fact, to seek classification of the tape as child porn kind of acknowledges the defendant's guilt on that point."

    Well since Wilson was under 18 at the time also he was exploited as a child himself.

  • ||

    I'd love to see the tape. From what I understand, if you watch it, there's little doubt Genarlow and his posse are low-life, despicable scumbags.

  • Scooby||

    Hmmm... most of us wouldn't post our desire to procure and watch child pornography on a public message forum that tracks IP addresses, especially while signing the message with an e-mail address.

    I mean, Jim, you did notice that 2 or more of the participants in the video are minors, right? Can we expect to see you on "Dateline: To Catch a Predator" sometime soon?

    Seriously. You have the balls to call someone else a scumbag?

  • green mamba||

    Is "Genarlow" the long version of "Gnarls"?

  • Marisa||

    I'm coming late to the conversation, so three things:

    1. I agree with ktc2 (and on a gut level w/ Episarch). Prosecutorial misconduct is an important issue, particularly in relation to how people with inadequate defense and public voice (often minorities, and in general, minors) are politically used by the criminal justice system in order to make points and bolster legislation. We also, I think, saw this with Nifong-- except it seems he likely miscalculated the immense resources the families of these particular boys were able to levy against him.

    2. The child pornography thing is real, especially as they were alllegal minors in that sense. I've been following the Wilson case on my website, and the sheer number of hits I get of people looking for the "actual video" is unnerving, especially when set against McDade's failure to at least block out the faces on the video. That negligence, that sense of him rushing the video out at any cost, to me reveals his fundamental disregard for justice, his disengagment with the alleged victims in this case, and his crass use of the tape to sway opinion.

    3. Finally, let's not underestimate what Wilson had to lose in taking the plea deal. Not only would he have to carry the real burden of a guilty judgement that he did not earn, but he the sex-offender registration is no small thing. Already, at least one of the other boys who took the deal is "paying" for it, as it affects his future job possibilities, where he can go to college, his capacity to attend family reunions and weddings-- I think you can see my point.

  • Chuck Gallagher||

    The outcome of this case will surely be decided within a week or two at the latest. But, beyond the minimum sentence issue, at hand, a larger question exists: what will Genarlow Wilson do to benefit others from his experience? Certainly, his sentence and incarceration has caused a law to be changed. One could say that is good. But beyond that, Genarlow is an example of a simple, yet profound, principle: Every choice has a consequence.

    As former inmate from Federal prison, today I share with business executives and young people that simple message: Every choice has a consequence. http://www.chuckgallagher.com And, while I am extraordinarily sympathetic to Mr. Wilson's plight, his example has helped other young people evaluate the power of their seemingly simple choices. As the founder of the Choices Foundation, perhaps Genarlow would consider stepping up and helping others understand the power of choice.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement