Reason Writers Around Town

In the Chicago Tribune, Radley Balko keeps wondering why Genarlow Wilson is in prison.

Comments

[J sub D]

I read this in my morning rag, the Detroit Free Press. Georgia Atty. Gen. Thurbert Baker is an ass. I do not wish malicious prosecution on his children, but I do hope that somehow he gets a taste of his own medicine.

[Joe]

It really isn't that complex. Al we have to do is learn every law and obey them. You does the crime you does the time, period.

[Lost_In_Translation]

The thing is, a judge or jury can find you innocent even if its obvious you broke a law, because in the end, they are the law. So its not the Attorney General's job to enforce the law, its his job to inform what the law is and make a case that the defendant broke it and then the judgement is up to the judge or jury.

[jkp]

Thank god we finally have a system of men, not laws.

[JasonL]

I'm gonna ramble for a bit. This has been floating around in my brain for a while.

There is a natural tendency for people to equate the legal system with other sets of rules. When constructing rule sets in the abstract, it seems obvious that you don't want discretion to play a large role in outcomes.

I was complaining just a few weeks ago about the NBA. I would hear people talking about LeBron's decisions in games 1 and 2 of the Detroit series, and I'd hear something like "LeBron just hasn't been in the league long enough to earn that call." "How obnoxious," I thought. Either he was fouled on the way to the basket or he wasn't.

So there is that seemingly reasonable concept out there. Rules should be enforced or they should be absent. This thought process makes a lot of sense if you view the rule as a component of some ideal or another. If I think of the foul as a guarantor of Fairness, then flexibility in the enforcement of the rule is first and last Unfair.

Similarly, if you view laws primarily as components of a Justice System, in which the very slippery idea of Justice depends on those laws, you can find yourself defending absurd outcomes solely because Justice (tm) is upheld. You hear this not only in criminal justice cases, but there is a very similar argument made by conservatives about immigration.

A less idealistic view of things seems helpful to me. Laws have nothing but a passing correspondence to the value of Justice, which is ill defined and often confused with Fairness anyway. Laws are primarily sets of incentives such that IN GENERAL, things work smoothly, just as the concept of the foul is primarily in place to make a game watchable (No, the NBA isn't watchable. I know. I have a broken leg and should be given some latitude here).

If it were the outcome that mattered and not an ideal, maybe we wouldn't be sacrificing so many people.

[iih]

Something does not make sense here:

1. The laws protecting underage children from pedophiles are meant for just that -- protecting them against pedophiles, and not other underage "friends". If an underage person needs protections by the law, isn't that admission that as minors they are not "old enough" to be treated as adults and that they are unwise/irrational/naive and are prone to make mistakes or fall prey to adult molesters? Then, isn't Wilson himself not "old enough" to be treated as an adult and isn't he unwise/irrational/naive and is prone to make mistakes just like his underage peers?

2. The whole issue is hypocritical. It is as if these are the only two underage kids in the country engaging in such activity! I once thought that the US, as well as Canada and other industrialized countries, have an increasing rates of underage consensual sex. So why the fuss about these two kids in particular? Shouldn't prosecutors send thousands of other high schoolers to prison for breaking the same law that Wilson broke?

[Lost_In_Translation]

iih,

you want fucked up, read this....

http://www.denverpost.com/ci_4783650

[iih]

Lost in Translation:

Firstly, a preamble to clarifying my point: I personally believe that underage consensual relations are wrong. In fact, my moral belief system dictates that any form of sexual relationships should be within the confines of marriage and that "just being adults" does not qualify, but that is my belief systems. Aside from that...

My point is: if 17 years do not have the right to vote because they are not at the age of "sufficient maturity", why should we expect them to be sufficiently mature when it comes to *consensual* sexual relationships with other *minors*? Do you see the discrepancy? If it was a relationship with an adult, then that adult has committed a crime and the adult has to be punished for it. That much is clear.

Moreover, if a minor forced a non-consensual relationship with another *minor* (e.g., rape), or as far as other crimes are concerned (e.g., theft or murder), if a minor commits such a crime, of course s/he should be put away as a danger to society, but also in sentencing that minor, society has to bear in mind that s/he should not be treated on an equal footing with adults!

As I said something does not add up, so please clarify it to me if you can.

[iih]

Lost in Translation:

I thought by "you want fucked up" you meant something else that, to me implied, you missed my point. But I now do not think that you missed it. My last thread is an expansion on my key question. Let me know if you think that whole thing adds up. It certainly seems not to add up to Radley and other posters as well.

[brucem]

We also have to blame the judges, who are nearly always former prosecutors who were "promoted" to the bench by being good at convicting lots of people, and the juries, who presume guilt after spending their days watching ten versions of CSI, Law and Order, The Closer, The Shield, The Wire, NYPD Blue, and other "cops get the bad guys who are always guilty" shows, only to take a break to watch American Idol.

I'm a criminal defense lawyer, and I see this every day. If a person charged with a sex crime is acquitted, the judge who presided over the trial will necessarily be upset because it makes him look bad. The people see it as "the judge allowed a sex offender to go free, back into the neighborhood so he can loiter around the playground masturbating at your children." And that's how it is reported on the local news. Which the jury pool is watching.

I've won two rape cases, but only because I had proof the complainant was lying (admissions), and no evidence other than an accusation that my clients actually did it. Why were these cases brought in the first place? Why were they not dismissed by the state? And why were they still so damn close at the end? Both could have easily gone the other way (one of which would have meant an automatic life sentence).

[JasonL]

brucem:

Not The Wire. You could only be a cynic after watching that one.

[SugarFree]

10 year-olds charged as adults, but a 20 364/365 year-old can't buy a beer. Either have a bright line about who is and who isn't an adult (i.e. can give consent) or don't and use some common fucking sense.

This girl can't consent to give a BJ, but she could form intent to murder? Fuck that up, down, and sideways. Either / or prosecutors, you shouldn't get both.

[Lost_In_Translation]

iih,

i know my post about the link was brief, but I was just expanding on the absurdity, where the two individuals involved in a "crime" are both victims and perpetrators, much like the "duel" situation described in the article. Its a sad state of affairs that a private stupidity grows into a federal absurdity which two people, who, though underage, seemingly did not perpetrate any crime upon one another, but both get tied up in the legal system because no one has the common sense to stop the process.

[iih]

Lost in Translation:

Thanks. Your point is very well made. Certainly agree.

[Irate Pirate]

I would like to start off by saying that I think the prosecution of this person is entirely wrong and all the Judicial parties involved deserve to get flogged on the court house steps.

I, however, do not agree with the idea that the prosecutor should become selective in his application of the law. Making laws selective in application creates situations where one is unable to determine what is illegal before the act has taken place.

Is it illegal to travel down this road at 80 mph today? don't know until its too late.

Does this railing meet the building code? Well it depends on who checks and what kind of a day they are having.

Will the FCC fine for this statement/program? Who can know? This was something that Powell did well when he was in charge of the FCC, be vigorous to make people lobby to change the laws to something reasonable.

This arrives at the same place as the SCOUS decisions on pornography/obscenity and the recent First cases.

Vague has no place in governance, if they can deprive you of life, liberty, property, freedom they must not apply the law in a subjective manner, power over these things cannot be ceded to bureaucrats.

[LarryA]

Then, isn't Wilson himself not "old enough" to be treated as an adult and isn't he unwise/irrational/naive and is prone to make mistakes just like his underage peers?

This can't be explained.

The Florida couple was held responsible in adult court of committing an act that was only illegal because they were too young to responsibly engage in it.

[Scarlett Johansson]

The Jesus and Mary Chain
Teenage Lust (Desdemoana Mix)

Little skinny girl she's doing it for the first time
Little skinny girl she's doing it and it feels fine
She's taking hold and I'm holding on
Holding on and my sense is gone
I got it (you got it) she's got it
She's taking hold of her sins now for the first time
Well she's been told about sins now but it feels fine
She's taking hold and I'm holding on
Holding on and my sense is gone
I got it (you got it) she's got it

[John C. Randolph]

I find it appalling that the jury didn't realize that they can ALWAYS acquit, no matter what the facts before them are. They're the jury. The whole reason we have juries, is so that ordinary citizens, not the state, decides whether to punish a defendant.

-jcr

[herodotus]

This is why it is all hopeless.

This country is an experiment, a failed experiment in which ordinary people were given the chance to choose between freedom and a bogus sense of security.

And they choose the fake security every time.

And really, who cares? The only people suffering in this system are deviant scumbags who might seduce someones innocent daughter. Who cares what happens to them? (Of course, if the deviant scumbags have enough money, they can get off on just about any charge, but that just makes for a more compelling episode of Law and Order. Right?)

America will ineluctably slide down into this ever-growing, all consuming vortex of cowardly law and order populism, and all libertarians can do is watch.

Bummer, huh?

[Michael Kerner]

I have heard one part of this story before. The part where the jury finds him guilty even though they know it is unjust. We regularly lie to our jurors and tell them they must convict if they find such and such a factual situation.

This is not true. Our founders intended that the jury have arbitrary power to refuse to convict a defendant, though factually guilty, if an injustice would result. This is a principle that comes to us from at least as far back as the Magna Carta, but the last few generations have been kept ignorant of the matter.

[Thomas]

In the Genarlow Wilson case, or any case, the jury can judge the fact, AND the law, and acquit the defendant when the justice of the law is unconscionable, like Wilson. That is called jury nullification, and in this case, it is a just, humane power of the jury.

[Robert H. Jackson (1940)]

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

[RED]

Are all prosecutors ladder climbing weasels ?, or is it just a passing fad? Flush a life and win a prize. "Those who fear disorder more than injustice, invariably produce more of both". But how much injustice is to be tolerated? Jury's should know, if only the judge would let them.

[CrackerBarrel]

Re: Michael Kerner's post at 10:04 a.m.

Jury nullification may not be the weapon of libertarian justice that we think it is. There are questions of principle, and of unintended consequences.

Say you are called to serve on a jury and you don't like the law that pertains to your case. In most cases, during voir dire jurors will be asked to affirm that they can render an objective judgement in the case, given the facts as presented and the law as explained by the judge, or words to that effect. If you disagree with the law and don't answer, "No," then you're not being truthful. Lawyers and judges do this these days just to intimidate jurors and to thwart jury nullification. Maybe, maybe, if you don't fundamentally disagree with the law, but you find that you don't like the way the case turned out, you might get a chance to nullify.

Then there's the question of whether jury nullification is a good thing in the first place. This article made me stop and think. Loberfeld is a Libertarian, but his article makes strong points against the idea of jury nullification, IMO.

I do agree that "justice" was heavy handed in the example cases here. But maybe the approach should be to make the laws clearer and fairer.

[Rockerbabe]

As a resident of Georgia, I can attest to the stupidity of quite a few of our state and local laws. Here in the bible belt. . .sex is sinful and needs to be punished. . . the issue with Genarlow Wilson is that he got caught doing what teenagers do and now no one wants to own up to the miscarriage of justice. We have a number of teenager males in jail for having sex. . .the laws were not suppose to apply to them, but when lawyers get to lawyering, anything can happen and usually does. Eventually, he will be set free, but the damage has been done. I think our public officals in charge of administering "justice" ought to be scrutinized as much as they like to lard over the citizenry. When lawyers need to pursue cases in order to make a name for themselves and advance in their profession, the citizens are left to fend for themselves. I wish Wilson and his family well.

[oh yeah]

The kid can still sign a plea deal any day and get out of jail immediately, I recall reading.

On the one side he is being held to the extreme of the law and on the other he is being called a great example for youth.

He was in a gang bang of a minor black female, who consented but is too young to legally consent to oral sex on him, which was 'by law' worse than the vaginal sex he had had with the drunk girl on the bathroom floor. That was the girl who woke up in the morning, claimed rape, leading to the motel room to be searched, the video found and the act with the younger girl revealed. Ugly story.

The defendant & victim are black, the DA white, the Attorney General who made the appeal, black. The father of the minor(15) girl is furious. The other defendants pleaded, and are free.

Although a million bucks was promised for bail until after the appeal, this crime is one of the 7 deadly sin crimes that get NO bail.

I'm not convinced that Att. Gen. Baker is doing the wrong thing, but perhaps the politically incorrect, very unpopular, thing.

Of course, Jimmy Carter getting in on it and calling it race, did just that, making it racial at least from one side.

The kid is convinced he has done nothing wrong and is riding high on the acclaim and fame, but the kid is in jail and is staying there at least until the October appeal is decided.

I think the kid's attorney is USING him for a claim to fame, a tool for a cause. Too bad the case wasn't tried on the west coast.

This piece confused me further by combining the decision to charge and decision to appeal, and by referral to other cases for interest rather than clarity, but it is a good piece for discussion if we can clear out our own biases.

[Walter E. Wallis]

A 15 year old girl was invited to a gang bang where she witnessed another girl get screwed. I suspect the "Consensual" blow job was all she could think of to avoid rape. I might have sympathy if this were a boy/girl on a date. It wasn't, and anyone who lacks the wit to understand the implied coercion is nuts,