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The grave injustice continues
Posted by on Thursday, June 28, 2007 at 1:28 am

For those keeping score at home, Genarlow Wilson is still in prison.




26 Comments on “The grave injustice continues”

  1. Mike's brother Matt Says:

    How the hell do these judges sleep at night!?

  2. gahrie Says:

    Again…the judge did nothing wrong. He did his job. Any blame lies with the legislators who wrote the law. You can also make an argument that the prosecutor could have used discretion, and not brought the charges. However he again was merely doing his job.

    It is not the job of judges or prosecuters to produce desired outcomes. That is the job of the legislators and the people. Judges and prosecutors are charged with applying and enforcing the laws.

    Whatever you think of Wilson’s sentence, he was given due process, repeated chances to plea bargain,(both before and after his conviction) and a trial by jury. He was guilty of the crime charged (there is a video tape of the crime), found guilty by the jury, and sentenced according to the law. That is the way the system is supposed to work.

  3. Mike's brother Matt Says:

    And the judge setting a bond hearing and then canceling it? What part of Emerson’s job as a judge was that? If the judge is right that he couldn’t receive bail to begin with, why the hell set a bail hearing in the first place? Obviously Baker’s more at fault here, and the fact this was ever tried is absurd, but it seems to be to the point of just needlessly jerking Genarlow Wilson around.

  4. Anonymous Says:

    You’re right, gahrie. Judges should only be concerned with doing their jobs. Justice schmustice.

  5. gahrie Says:

    Well anon. - There is a reason that the symbol of justice is a woman with a blinfold on….justice is supposed to be blind. Justice is about process, not outcomes.

  6. Anonymous Says:

    Justice is about process, not outcomes.

    Spoken like someone who’s never been unjustly imprisoned.

  7. dcl Says:

    You know what defense I think is really really lame, “I was just doing my job.” You know what that defense was used to for? Among other things as an excuse for helping kill well over six million people during WWII in Nazi Germany. So Gahrie, please come up with something more sensible than, “He was just doing his job.” Some times justice is about doing what’s just not just your damn job. Process is important, but when we get down to brass tacks of course Justice is about outcomes–it is out right asinine to say that justice is not about the outcomes and anyone who thinks differently doesn’t have an ethical bone in their body. Does Law School really make people this stupid, callous, unfeeling, shortsighted, and morally repugnant?

    Seriously, I would accept an argument that the sentence is justified because of what the guy did (he certainly not without fault in this case to be sure, though I certainly don’t think the punishment comes close to fitting the crime). An argument that he caused a real harm. Okay make that argument. But don’t give me some bullshit about how everyone was just doing their job and justice is about process not outcome. That is just reprehensible bureaucratic head in hole thinking and unacceptable as an argument for why someone should be spending a decade in jail for consensual oral sex.

  8. Not an ND fan Says:

    Please look up Godwin’s Law, it was a trivial pursuit answer last time I played.

  9. Megan Says:

    Thanks for bringing this up again, Brendan. There was another case you had blogged on that I made the comment that working with at risk juveniles I see this same situation WAY too much. Why just because it’s a female is she a “victim” whenever there is a sexual act that occurs??? I’ve never gotten that. I think it all boils down to the laws are written to protect but too many times the cases are subjective based on “consent”. In Kansas the legal age of “consent” is also 16. Unfortunately there are A LOT of girls under that age doing all kinds of freaky things!!! I don’t know what the ultimate answer is but I’m seeing a lot of boys being thrown in juvenile correctional facilities for a blow job from a 15 year old. I don’t get it either, Brendan. I’ve said to many of the boys that I work with, “yeah it might feel good and you like the attention but for God’s sake check her ID or you’re going to jail!!!”

  10. Jessica Cowans Says:

    Heh, his lawyer’s name is “B.J.”.

  11. dcl Says:

    would you prefer, “Just doing my job is the last refuge of a scoundrel” then? Also, Godwin’s law fails to account for the accuracy of the statement. Just doing my job / following orders is a very popular excuse. It remains as ever, bullshit.

  12. gahrie Says:

    1) I never went to law school, I studied law (mainly Constitutional Law and law as the foundation of the American nation) as a political scientist.

    2)I sincerely hope law schools are not teaching that producing proper outcomes is the goal of our legal system.

    3)Do you really want to live in a society in which judges routinely ignore the law to produce results that they approve of? Do you really want to give judges the ability to overrule the legislatures and the people? (Brendan, here is where More’s quote would be appropriate)

    4)We live in a country based on the rule of law, and the supremacy of the law. We were the first nation in the world founded by a legal document rather than inheritance or conquest. The law, and the legislature must be supreme. To make the judiciary superior is to destroy our nation, and impose tyranny.

    5)All most of all controversial USSC decisions were made out of a desire to ignore or change the law, and produce the “right” outcome: Dred Scott, Brown, Korematsu, Roe.

    6)Once justice becomes about outcomes, once that blindfold has been removed, we are doomed. Who decides which is the proper outcome? Should Judge Ito have had the power to overrule the O.J. jury and find him guilty? Don’t most people think that would have been more just? What do you think the reaction in America’s inner cities have been if he did? Would it have been Ito’s responsibility to be worried about riots when determining if he would overrule the jury? Wouldn’t that produce rule by mob? Isn’t that actually what those of you who oppose the outcome of this case doing? Trying to impose the will of the mob (abet a well behaved, electronic mob so far) on the courts?

    7) Our system requires, demand, that judges indeed live by the dictitate: “I was just doing my job, I was just following the law”. If not, we no longer have a system based on the consent of the people, but the whims of a judicial oligarchy.

    8)I am perfectly willing to accept the premise that the result of this trial was unfair and objectionable. I am not willing to accept that it was unjust. By the law at the time, it was perfectly just.

    9)I am struck (and very troubled) at the way that many people cavalierly dismiss the role of the legislature in this case, and demand that the judges make things right. What is happening to us? Our forefathers would be appalled. The legislators were the ones who wrote this law, presumably at the behest of the people they represented. The legislature were the ones who changed the law, to make it more “just” to those of you upset with this case. However, they purposefully wrote the new law so that it could not be applied retroactively. The “guilt” in this case lies with them. Your outrage should be directed at them. If any part of our system is not wotrking, it is the legislative branch, not the judicial one.

  13. dcl Says:

    As to 1: Fair enough, just John Ely run amuck I suppose then eh?

    As to 2: If a just outcome is not the goal of a legal system what is the point of having a legal system at all?

    As to 3: The Judiciary is the third co-equal branch of our government and as such should not be submissive to other branches of government. If they declare that the punishment for a particular crime is unconstitutional because it is cruel and unusual they have an obligation to temper the decision of the other two branches.

    As to 4: That statement is only tangential accurate and mostly sophistic bullshit.

    As to 5: I would also take issue with your outcomes list. Dread Scott and Korematsu are much more arguable as judges “just doing our job” then they are as trying to produce the right outcome. and yes granted efforts explicitly at outcomes are subjective. But so is just about anything else in law. The goal of the judiciary is to apply the laws on the books (one half of the scales) the facts of the case (the other half) and arrive at a fair decision.

    As to 6: If the jury had returned a verdict of guilty in the OJ case. And the Judge determined that the verdict was incorrect he does indeed have a duty to enter a judgment not withstanding the verdict. Though as a matter of finding of facts this is generally left to juries and only a jury may enter a finding of guilty. As to the issue of the blindfold. It is not meant to make justice blind to the circumstances of the case. It is meant to make justice blind to the person before the court such that all that come before the court are treated equally and fairly–equal justice before the law anyone–and have the merits of their case weighed without regard to race, class, religion, gender, &c. &c. Your attempted analogy seems rather silly… Did you have some rabid right wing psychopath teaching you this or something. Note, don’t listen to the Cato institute anymore.

    As to 7: Yet again we call bullshit. To lessen “Not an ND fan”’s pain, I shall say that the judges of the French revolution were simply doing their job and just following the law and process. And damn if that wasn’t a judicial oligarchy. Your argument that the law is not about finding a just outcome for a set of facts is bullshit. If the law fails to do this we end in judicial oligarchy.

    As to 8: Any fool should be able to identify that a decades long prison sentence for an non-coerced blow job is unjust.

    As to 9: Too true that the legislature bears some blame. But that does not mean that the judiciary is impotent. They are a third co-equal branch and have a responsibility to protect the Constitution, and the goals of equal justice before the law. The judiciary is where the rubber meats the road. Where the cold back and white of laws meats the fuzzy gray realities of life. The judiciary does not have a duty just to provide process. That’s facially stupid. I could develop a legal process whereby all that are arrested and charged by the prosecutors go through a legal process and are found guilty. Such a process could be legally followed easily. Such a process would not be just. Our legal system has a responsibility to both process and justice. To not see this is to have a deeply flawed philosophy of the law.

  14. gahrie Says:

    As to 2: If a just outcome is not the goal of a legal system what is the point of having a legal system at all?

    No. I believe a just outcome is indeed the goal of our legal system. I just believe that a just outcome is one that is true to the law and has provided due process, not an outcome that I agree with.

    The Judiciary is the third co-equal branch of our government and as such should not be submissive to other branches of government. If they declare that the punishment for a particular crime is unconstitutional because it is cruel and unusual they have an obligation to temper the decision of the other two branches.

    I have never said it should be submissive. But the role of our courts is not to legislate. No court has determined that this case is cruel and/or unusual, and given that the legislature explicitly failed to “correct” this case when given the opportunity to, I don’t see how they can.

    As to 5: I would also take issue with your outcomes list. Dread Scott and Korematsu are much more arguable as judges “just doing our job” then they are as trying to produce the right outcome. and yes granted efforts explicitly at outcomes are subjective. But so is just about anything else in law. The goal of the judiciary is to apply the laws on the books (one half of the scales) the facts of the case (the other half) and arrive at a fair decision.

    Scott cannot be read as a judge “doing his job and following the law”. The Court explicitly voided the Missouri Compromise and the will of the legislature to produce the result Taney wanted, Blacks were property. Korematsu is infamous because it is one of the only times the court has ruled that it is permissable for the government to discriminate based on race, and then only in time of war. Everyone agrees that if we had not been at war, Korematsu would have been decided diferently. Again results based justice.

    The law is not supposed to be subjective. The law is supposed to be objective. You cannot have fair and impartial justice in a system based on subjectivity.

    The role of the courts is not to arrive at a fair decision, it is to arrive at a just decision, not always the same thing.

    Too true that the legislature bears some blame. But that does not mean that the judiciary is impotent. They are a third co-equal branch and have a responsibility to protect the Constitution, and the goals of equal justice before the law. The judiciary is where the rubber meats the road. Where the cold back and white of laws meats the fuzzy gray realities of life. The judiciary does not have a duty just to provide process. That’s facially stupid. I could develop a legal process whereby all that are arrested and charged by the prosecutors go through a legal process and are found guilty. Such a process could be legally followed easily. Such a process would not be just. Our legal system has a responsibility to both process and justice. To not see this is to have a deeply flawed philosophy of the law.

    In this case, the leguislature does not bear some blame, it bears almost all of the blame. It wrote the offending law, it later changed the offending law, and it explicitly prevented the courts from applying the change retroactively.

    Who gets to decide what is just? I say the people through their elected representatives. You say a judicial oligarchy, largely unelected, many serving for life.

    For the first time, I will state my opinion of the case. Given the facts of the case, (this was by no means two innocent lovers) I think the defendent should have been punished. I agree that the punishment established by the legislature was harsh. Given the fact that the prosecutor has made repeated attempts, both before and after conviction, (including to this day, an offer is on the table that would see Wilson immediately released) the prosecutor thinks the punishment is too harsh (note: not unjust).

    Wilson also bears some of the blame for his present incarceration for his unwillingness to admit guilt and accept a plea bargain. All of his co-defendants did, and are free today.

  15. gahrie Says:

    A small, perhaps illustrative, addendum.

    I think the Scooter Libby case is unfair. I strongly dislike the results of this case. However I also believe his prosecution and conviction were just.

  16. David K. Says:

    3)Do you really want to live in a society in which judges routinely ignore the law to produce results that they approve of? Do you really want to give judges the ability to overrule the legislatures and the people? (Brendan, here is where More’s quote would be appropriate)

    Advocating that a judge should place actual justice as opposed to blind obedience to some words on paper in rare cases is a far cry from saying judges should routinely ignore the law.

    4)We live in a country based on the rule of law, and the supremacy of the law. We were the first nation in the world founded by a legal document rather than inheritance or conquest. The law, and the legislature must be supreme. To make the judiciary superior is to destroy our nation, and impose tyranny.

    No, we live in a country where the right to rule is derived from the PEOPLE. Blind adherence to “the law” is not a panacea to all government problems. Your hyperbole here completely eviscerates any potential point you might be making because no one is advocating making the judicary superior and imposing tyranny, we are saying that there are sometimes circumstances in which justice is NOT served by blind adherence to words written on paper. If that were true we wouldn’t even NEED judges and juries. Society is not defined by a set of immutable perfect logistical rules and treating laws as such is folly.

    DCL has pointed out some of the other flaws in your argument (such as the Dredd Scott decision actually being a justice blindly following the letter of the law) but frankly i find it more terrifying to live in a world where following the strict letter of the law without regard for true justice no matter what is ok, than in a world where judges occasionally push the boundaries of such laws. In your world school desegregation might never have happened. Yeah i’ll a world in which that ruling was given, letter of the law or not.

  17. gahrie Says:

    David K:

    First of all, you are factually wrong on Scott. In only the second time in our nation’s history, the Court ruled a law passed by Congress unconstitutional. It voided much of the Missouri Compromise. This action is magnified by the fact that the Court had already held that Federal courts could not hear the case since Scott had no standing. In fact the most “results orientated” form of judicial reasoning, substantive due process” was introduced by this case. Roe and Brown both trace their lineage directly back to Scott.

    In my world, government mandated discrimination should never have happened, and I welcome today’s applicable ruling by the Supreme Court.

  18. thebeef Says:

    Gahrie’s right about one thing:

    If ever there was a result-oriented SCOTUS decision, it was Dred Scott. No one can plausibly read that case and believe that it was written with a a “blind adherence to the law.” The Scott decision was judicial activism at its worst.

    Gharie, however, is missing the point. A lawyer (and in particular, a prosecutor) should not look at the law and only ask: “what CAN I do with this law,” but rather, the prosecutor should ask: “what SHOULD I do with this law.”

    If, as I understand it, the prosecutor KNEW that this kid would go to prison for 10 years on a mandatory sentence with a guilty verdict, he NEVER should have brought the case. He should have said: “what SHOULD I do with this law? Ignore it.”

    Justice is NOT ONLY about process. It is most certainly ALSO about results. But our system is not (despite what people call it) a justice system.

    As Oliver Wendel Holmes once said from the bench: “This is a court of law, young man, not a court of justice.”

    A blind adherence to the law is NOT about justice. If it were, then from the year of our founding to the passage of the 13th Amendment, slavery in the south was “just.” Obviuosly, that was not the case, but it was the law.

    Prosecutors have discretion and with that discretion they have responsibility. Perhaps, if the prosecutor were going after a real bad guy—someone who was a danger to society—but they couldn’t pin anything on him but this oral sex statute: perhaps then, in the prosecutor’s discretion, bringing the charge would be justified.

    but it’s certainly not justified in this instance. What this kid did: having oral sex on video with a young girl (whom he may very well have taken advantage of) at a party, was less than innocent. But 10 years does not fit the bill.

  19. gahrie Says:

    the beef:

    In my first post on this thread I made the argument that the prosecutor could have praticised discretion in this case. It should be noted that this was not the only charge he brought in this case.

    The prosecutor has made numerous attempts to settle this case, and plea bargain it. Wilson is just as responsible for the status quo as the prosecutor is.

  20. Anonymous Says:

    gahrie, please tell me you can at least acknowledge the racism underlying this whole thing. a white girl and a black guy? if it were a black 17-year-old girl and a white 15-year-old guy, would any of this even have happened? that’s a big problem i have with this case. you keep referring to justice being blind, but it’s clear that in this case, justice was anything but.

  21. Brendan Loy Says:

    The girl was black.

  22. gahrie Says:

    Wow..racist and Nazi…now I just need someone to call me a homophobe and I’ve hit the trifecta!

  23. Sean Says:

    Gahrie, you keep saying Wilson did something wrong, but you never say what it was. Please enlighten us.

  24. gahrie Says:

    1) He had sex with a minor, on videotape, at a party.
    2) He had sex with an intoxicated 17 year old girl (at the same party) who later claimed rape, and started the investigation that led to the oral sex with the 15 year old.
    3) He refused to accept a plea bargain that would have prevented his trial and conviction, despite the fact that the videotape proved he was guilty.

  25. Alasdair Says:

    Sean - from what I can understand of the case, the kid (male) was video-taped having sex with the unambiguously-underage kid (female) … Darwinian selection tells you that that was a wrong thing to do …

    Or do you not consider it wrong to supply your own proof of yourself breaking a law ?

  26. gahrie Says:

    Roberts and the conservatives strongly believe that in the past, the Court has been too willing to jump in and settle disputes better left to elected legislators. They want the Court to ease out of those issues and take a back seat to the legislatures, which they see as closer to the people and therefore more accountable.

    Liberals like Ginsburg and Justice Stephen Breyer, on the other hand, believe courts can be agents for change.

    http://www.abcnews.go.com/Politics/SupremeCourt/Story?id=3323935&page=1


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