Sex, Laws, and Videotape: Is David McDade The New Michael Nifong?
Billy Merck here, once again filling in for Lat while he squeezes out some more vacation before the summer gets away from us. We’ll be here today and Laurie Lin will be here tomorrow; Lat’s back next week.
We start today with an update on a case from Georgia with which you’re all probably at least a little familiar. We reported earlier here on the case of Genarlow Wilson, the Georgia man who was sentenced to 10 years in prison for having consensual oral sex with a 15-year-old girl when he was 17 years old. The Georgia statute under which he was convicted has since been amended to make the same offense a misdemeanor, but the change was not made retroactive to Wilson’s case.
On June 11, Wilson’s habeas corpus petition was granted on the basis that the 10-year sentence constituted cruel and unusual punishment; as a result Wilson’s offense was changed to a misdemeanor, he was given credit for the more than two years already served in jail, and he would no longer have to register as a sex offender. Attorney General Thurbert Baker has appealed this decision, drawing criticism from many who question the need to keep Wilson in jail any longer than he has already been there.
Which leads us to the new part of the story. Douglas County District Attorney David McDade, who prosecuted the case against Wilson, has been there every step of the way to ensure not only that Wilson went to jail, but that he stayed there. When the state legislature considered bills last year and this year that would have amended the statute again to make it apply retroactively to Wilson’s case, McDade was there lobbying against the bills.
And evidently, as part of his efforts, McDade has made available to legislators and seemingly anyone else who wanted one copies of the videtape of the sexual encounter that got Wilson convicted. Many in Georgia have begun to question why McDade has been so free with the distribution of the tape, particularly since the distribution, receipt, and possession of it appears to violate Georgia and federal law.
More on McDade’s Nifong-like behavior after the jump.
Related:
Attorney general: Wilson ruling could free molesters [Atlanta Journal-Constitution]
Wilson’s legal tactics challenged[Atlanta Journal-Constitution]
Judge says no bond for Genarlow Wilson, cancels hearing[Fulton County Daily Report]
Sharpton embraces relatives at rally for Gernarlow Wilson[Atlanta Journal-Constitution]
State Supreme Court moves up Genarlow Wilson hearing[Atlanta Journal-Constitution]
U.S. Attorney David Nahmias in Atlanta said Wednesday that:
federal law prohibits the distribution of the Genarlow Wilson videotape because it depicts minors engaged in sexually explicit conduct. He warned that people who had received it would be in violation of federal child pornography laws.…
“These laws are intended to protect the children depicted in such images from the ongoing victimization of having their sexual activity viewed by others, potentially for years to come, particularly if the images are placed on the Internet or otherwise broadly enter the public domain,” Nahmias said.
“Accordingly, we have advised that the videotape at issue constitutes child pornography under federal law and should not be knowingly distributed, received, or possessed outside of law enforcement and judicial proceedings.”
U.S. Attorney: Distributing Genarlow Wilson tape violates law[Atlanta Journal Constitution]
McDade (pictured at right), for his part, claims to be required to distribute the tape under Georgia’s Open Records Act. But Nahmias says that federal law trumps any contrary requirements under state law.
Ironically, McDade did not have the same slavish adherence to the Open Records Act when the Atlanta Journal-Constitution requested a copy of an audiotape of an interview by Douglas County prosecutors of Wilson’s mother, in which the prosecutors allegedly tried to intimidate her regarding comments she had made about the case. He refused the request, though he later gave the tape to the Fulton County Daily Report.
McDade has consistently displayed the win-at-all-cost attitude throughout this case that ultimately cost Michael Nifong his job and bar license (and perhaps criminal sanctions). Will it cost him as much as it costed Nifong?
From one perspective, McDade’s actions are less of a concern; at least he did actually get a conviction, even if not one for rape (rape charges were included, but the jury acquitted Wilson of those charges). However, McDade has been no less of a crusading loose cannon, even going so far as to tell legislators whom he was lobbying on the retroactivity bills that Wilson had raped his victims, even though the jury had specifically acquitted Wilson of doing so. And of course, there is a much stronger case that what McDade has done in widely distributing the sex tapes is an actual crime.
On a positive note for Wilson, the Georgia Supreme Court has reversed its earlier decision not to expedite the appeal in the case, and a hearing is set on both the denial of appeal bond and the habeas appeal itself on July 20 at 10:00 a.m.
(36) Comments
Comments
Figgity-FIRST!
You go, Merck. Right on....
Billy, this isn't even close to Nifonging. Have you graduated from high school yet?
"Will it cost him as much as it *costed* Nifong?"
I don't think I readed wrong, so maybe you mis-writed.
Merck: Did you really mean to say that Lat is "squeezing out" some vacation? I think you meant to say he's managed to squeeze it IN to his busy schedule. Otherwise it's an unseemly fecal metaphor. Can't believe you haven't been fired yet.
So what is more traumatic for a teenage girl... having oral sex with a teenage guy or have a middle aged lawyer pass a tape of it around to all his colleagues
I am happy to see an interesting and thought provoking piece on this blog that doesn't deal with salaries, office fashion or Nina. it's a breath of fresh air.
Nifong-like behavior? You're an idiot.
Stop the Merck-hating. Sheesh.
This is an interesting, thoughtful post.
Merck, you and your double chins need to sit down and talk to each other before you start throwing around accusations of "Nifong-like behavior."
By all accounts, McDade thought he was prosecuting a rape. The jury wasn't convinced, but there's a difference between the existence of reasonable doubt as to guilt and outright innocence.
McDade's act of making the tape available is a little strange, but where all of 'tards in the country's media have descended on him, that makes it a bit more understandable.
Nifong lied about the quality of the evidence and charged innocent people with a crime they didn't commit. McDade charged Wilson with crimes he did commit, the jury handed him only a partial victory, and he's been less than smooth in dealing with the media reaction.
You also say this: "And evidently, as part of his efforts, McDade has made available to legislators and seemingly anyone else who wanted one copies of the videtape of the sexual encounter that got Wilson convicted."
All I find in the articles is that he's made the tape available to at least one legislator who's asked for it, and that he's withheld it from the media. That isn't "seemingly anyone else who wanted one."
Lat's tawdry, but at least he's intelligent.
Isn't the difference here that the defendant, you know, actually did the crime charged?
im usually a merck hater, but hats off, finally a decent and interesting post from him.
All of the ignorant comments to the post have me doing something that I don't like doing - defending Merck. It was a very informative post and besides he qualified that he didn't think this was the same as Nifong just asked if there will be a similar result based on what seems to be pretty outrageous conduct. In my opinion, you have two rogue prosecutors and I would like to see McDade punished just as Nifong has.
10:21, apparently you don't see anything wrong with a prosecutor embarking on a private vendetta against one specific defendant, making child pornography freely available to legislators in the process.
Oh, wait - the defendant is black, so it's OK to violate his rights.
This case and the Nifong mess are both great examples of how prosecutorial power in the hands of the wrong people can result in massive injustice. As a criminal defense attorney, I have seen way too many prosecutors forget that their ethical duty is to do justice for everyone, including the defendant, rather than mindlessly prosecuting. If, at some point, it becomes obvious that the interests of justice are NOT served by continuing a case, a prosecutor is supposed to drop it. That's obviously not happening here.
BTW, although Merck's posts in the past have been annoying, they're no more annoying than Lat's. So stop hating on Billy (or at least hate on him the same way you hate on Lat.) This is actually a timely topic and I'm glad Merck posted it.
Um, no he didn't. Genarlow Wilson didn't rape anyone. Unless you think consensual sexual relations by a minor with a minor merits the sort of punishment that got handed out in this case.
"Genarlow Wilson didn't rape anyone. Unless you think consensual sexual relations by a minor with a minor merits the sort of punishment that got handed out"
That's two different things. He broke the statute that defines rape, even consensual sex with a minor; that's a far cry from whether or not he deserves the punishment.
The best part of Billy Merck ran down the crack of his momma's ass and ended up as a brown stain on the mattress!
10:36,
"He broke the statute that defines rape"
Actually, no, he was convicted not of "Rape," but of "Aggravated Child Molestation." And even if he had been convicted of statutory rape, I think you'd be missing the point - the outrage surrounding the case is that the conduct in question doesn't comport with the common-sense notion of "rape," and yet was punished as severely as that crime.
My point is that you can't make a distinction between what Wilson did and what the Duke lacrosse players did on the grounds that Wilson was "guilty of the crime charged," when in fact he was found not guilty of the most serious crime charged, namely, forcible rape. Like Nifong, the prosecutor in this case is bending over backwards - even possibly violating federal law - in the service of a vendetta. It's outrageous.
Need I even say it? STFU, Merck-haters.
was the girl white?
Nice post, but you still suck ASS, Merck.
What's the SoL on distribution of child porn? We can be pretty sure that, not withstanding AG Gonzales' stated focus on fighting child porn, the current DOJ won't be prosecuting this guy, but perhaps January '09 is still w/in SoL?
What's with everyone thinking that McDade somehow did something less reprehensible than Nifong? He is distributing, without consent, videos of other people engaging in sex acts which are CHILD PORN. The feds have been clear on that point. McDade himself is trumpeting this girl's age as the reason for his prosecution of Wilson. This is somehow not in the same league as a DA trashing people's reputation? Let's look at the comparative penalties for distributing child pornography, versus what Nifong faced--who's in whose league there? And what about Wilson and the "victim," who I would both think have at least some inherent privacy right which would protect against unfettered distribution of them engaging in a sex act.
It defies both my sense of the law and of justice (those two being dissimilar at times) that simply because something is evidence in the case it can be distributed in that manner, and McDade appears to have agreed with me under other circumstances--that's the real indication he's doing something wrong, and not just misguided.
WTF is Merck's fat, lazy ass doing here? Why does Lat torture us so?
I hate you Billy Merck. I'm boycotting ATL today.
This guy is way worse than Nifong and the backstory on Wilson's trial is appalling. At least people caught onto Nifong's crimes before anyone went to jail.
Many peopel above seem to be saying that he committed the crime of statutory rape, but wasn't the crux of the issue (and why the legislature overturned the statute) based on the fact that they were both consenting minors(not to mention it related specifically to oral sex)? Shouldn't this boy be protected just as much as the girl from having the tape being distributed publicly by a prosecutor? While a punishment as severe as Nifong's seems inappropriate, it seems to me that prosecutors should not be in the business of lobbying in the legislature (they can serve as fact witnesses for legislative investigations), but doesn't this get us to the issue we are seeing at the federal level (in the AG's office) of politizing the DA's office? While DA's can make de facto political statements in who they choose to prosecute, do we really want/need them to enter the lobbying arena as well? It seems that they would no longer be upholding justice on behalf of the people, but rather prosecuting and lobbying for only pure political purposes based on the prosecutors individual partisan beliefs.
I'm just sayin'
..and guess what. McDade is a University of Georgia Law grad...
11:59: Your awesome boycott will probably keep you from seeing this, but hopefully you still remember that I hate you.
Sometimes I wonder if half of the people here even have any legal training.
Let's be clear: THERE IS NO EXCUSE FOR DISTRIBUTION OF CHILD PORN (and it's simply outrageous, disgusting conduct). It's essentially strict liability. There is no excuse, exception or mitigating factor.
So, is it worse or less worse than Nifong? Who cares?! The guy distributed child porn. Period.
There are some laws out there where you might think sometimes they're applied too harshly (like, say, laws imposing incredibly harsh penalties on minors). But child porn laws aren't among them. You make, view or distribute child porn... you deserve whatever's coming to you.
Otherwise, this guy's conduct as a DA is also reprehensible. Whether he distributes the video or not, he has no business lobbying the legislature simply for the sake of making himself look right in this case.
1238--who exactly are you attacking? Take the arrogance back to xoxohth
11:18: She was white, but I'm sure that had nothing to do with the prosecution.
And I gotta say, distributing child pornography is, as a crime, far worse than anything Nifong did as an individual. I'm not sure whether it's worse behavior for a prosecutor insofar as bringing a case before the grand jury is concerned.
12:41 -- "attacking" might be a strong word, but pretty clearly critiquing those who seemed to think this was much ado about nothing, or somehow trying to minimize what McDade has done.
As for my "arrogance..." Thanks. But I've never been to "xoxohth."
"Genarlow Wilson didn't rape anyone. Unless you think consensual sexual relations by a minor with a minor merits the sort of punishment that got handed out"
Wilson was charged with actual rape -- i.e. forcing himself on the victim. He was acquitted because the jury didn't find that McDade met his burden of proof beyond a reasonable doubt. He was convicted on the other charges.
McDade probably thinks that he's lucky to have a rapist behind bars. This isn't a guy who got a blow job from his underage girlfriend. Rather, Wilson and his friends rented a hotel room, got some drugs, alcohol, and a video camera, and lured some women over there. The prosecution made the case for rape, and the jury thought it wasn't quite good enough.
Therefore, McDade probably thinks that he's protecting the public and protecting the victim by trying to keep this guy behind bars.
Hey 3:33, what about the fact that the girl who he allegedly raped testified on his behalf and told the court it was consentual?
and not only that, the girl that the rape charge was on was over the legal age.
no one is saying Wilson is totally innocent. what they're saying is that what he did doesn't merit a 10 year jail sentence.
Just to point out something about what hrmm said. In GA, with respect to the commission of a crime, Wilson was not a minor/juvenile, since he was 17. However, with respect to appearing in pornography, he was a minor, since he was under 18. Unless the pornography was on the computer, in which case he was not a child, since he was over 16.
Georgia law is not very clear on when someone is a child.