[Update 6/11/07: The system works! Or not! Another fine moment in prosecutorial discretion.]
Susan Filan, a former prosecutor and now senior legal analyst at MSNBC, wrote an op-ed this week calling for prosecutors to be more cognizant of their discretion in bringing charges. This epiphany came to her after reflecting on the grossly unjust case of Genarlow Wilson, a high school football player in Georgia sentenced to ten years in prison for having consensual oral sex with another student:
When he was 17 years old and a high school senior, he received consensual oral sex from a 15-year-old, 10th-grade girl.
Everyone agreed, including the prosecutor and the girl herself, that she initiated the act.
It was all captured on video — the evidence used to convict him at trial. On the tape, police saw a 15-year-old perform oral sex on one partygoer, and after finishing with him, she turned and did the same to Wilson. Under Georgia law at the time, this was considered aggravated child molestation, a felony for teens less than three years apart to have oral sex. It carried with it a 10-year sentence, even though it was only a misdemeanor for those same teens to have sexual intercourse…
The other students at the party took that deal and some of them are out of prison by now. Because Wilson thought he would be acquitted and did not want to be branded a child molester, he went to trial. The prosecutor blames Wilson for his sentence because none of the other defendants insisted on a trial; all the others “took their medicine.”
If you’re not familiar with Wilson’s case, I urge you to read more about it. This ESPN article about him is both touching and infuriating, and probably the best place to start.
Unfortunately, Filan’s prescription for preventing these kinds of cases in the future is much too trusting of her profession:
When I first heard about the case, I wasn’t too concerned. Wilson knew the risks, rolled the dice by going to trial and lost. But the more I think about his case and the more I read about his case, the more I think prosecutors have a duty to make sure they don’t take cases to trial that they can win, when the punishment doesn’t fit the crime. Prosecutors have discretion, and they have to use it fairly and wisely. So why do I write about this case now, two years into his sentence? For two reasons: for one, the Duke case has heightened my awareness that there can be injustice in the system, and as a prosecutor, I have an equal obligation to seek convictions as I do to make sure the convictions are fair and just and not wrongful. I must speak out against injustice in the same way I speak out against crime and in favor of law enforcement.
It’s all well and good to wish for prosecutors to use their discretion wisely, but we know that this isn’t always going to happen. Sometimes prosecutors have a warped sense of justice. Sometimes they’re more concerned with reelection than with the justice of a particular case. And sometimes, as with Wilson’s prosecutors, they’re just dicks. Simply urging them to do right isn’t nearly enough.
The best way to guard against these kinds of injustices is to empower juries to fulfill their intended role as a check on overreaching government power. Wilson went to trial knowing he wasn’t a child molester and hoping his jury would see that, too. And they did see that — but because contemporary juries are prevented from questioning the law, they tearfully convicted him anyway. From the ESPN article:
The day before the trial was expected to end, in the last night he’d ever spend at his home, Wilson went to a church down the street and asked the preacher to pray with him. He awoke early the next morning. He knotted his tie carefully and went to the courthouse. The trial finished that afternoon, and the jury came back with “not guilty” on the rape but “guilty” on the aggravated child molestation.
He looked at the forewoman. She was crying, seeming to understand they’d just undone a promising future. Indeed, when the jurors found out there was a 10-year mandatory minimum sentence, several were incensed. The prosecution told them to write a letter, then moved on to the next case.
The answer to cases such as Wilson’s is to allow defense lawyers to argue that some laws or applications of laws are unjust, inform juries of the sentencing consequences of a conviction, and urge them to act as the conscience of their community when called for. I don’t expect former prosecutor Filan to advocate such a radical return to the original intent of trial by jury, but I’d be greatly impressed if she did.
(Wilson has a habeas appeal pending, with a decision from the judge due Monday. Follow the details here.)
Dawkins doesn’t get juries