aTypical Joe: a gay New Yorker living in the rural South

Wednesday, July 18, 2007

Barr, Genarlow, McDade & Nifong

The recently minted libertarian who earned national notoriety as one of the most forceful leaders of the effort to impeach President Bill Clinton for sex in the oval office, Bob Barr, today follows up his Fourth of July moral scold routine with the observation, in yet another AJC OpEd, that the U.S. attorney has no business in Georgia’s Genarlow Wilson case, apparently unconcerned about the irony of the man who played the Clinton scandal for every headline he could, calling here for “a more subdued setting.”

His beef is that the US Attorney in Atlanta issued a ruling that prosecutor David McDade’s distribution of the Genarlow Wilson sex tape was a violation of federal child pornography laws. Barr wants Genarlow disposed of quickly “following oral arguments scheduled for July 20, [so] we can all get back to other pursuits” and decries Genarlow’s supporters as involved in the “latest great civil rights crusade.” He then - without ever once addressing the merits - goes on to make the the states’ rights argument that will be familiar to anyone who recalls that other civil rights fight, the one against Jim Crow era segregation:

Insofar as both the U.S. and Georgia constitutions provide for trials in criminal cases to be open to the public, clearly it makes sense for the evidence in such cases to be similarly open to inspection by the public… The Georgia Open Records Act is even more explicit… While federal laws regarding public access to court records, including evidentiary records, are far less robust than Georgia’s, the general rule is the same - trial records and evidence developed therein, are to be available for public inspection.

Notwithstanding these laws and the fundamental public policy of openness they represent, the Department of Justice statement last week indicated that simply because certain categories of evidence (such as the Genarlow Wilson videotape) are subject to “federal law,” any state law provision that deals with such evidence differently, even if being followed by a duly elected state official carrying out the proper laws and procedures with which he or she is charged, must ignore the state laws to which their oath of office requires allegiance. The federal government’s statement concluded that federal law will “trump” state laws, presumably even if doing so would leave the state official liable for failing to abide by the state law.

There will be times when two competing sovereigns - the federal and state governments, for example - may view actions of a citizen differently; and more than one U.S. Supreme Court decision allows either or both to exercise prosecutorial discretion in deciding whether to move forward with a prosecution or to carry out some other aspect of the laws.

But to issue a blanket, “advisory” edict that federal law necessarily “trumps” the exercise of a state law being duly complied with by an elected official raises - to say the least - troubling questions of federalism and comity.

So just what’s this videotape fuss all about?

Back in February State Senate President Pro Tem Eric Johnson made an inflammatory speech on the Senate floor claiming that, contrary to a jury’s verdict, a rape had occurred in the Genarlow Wilson case. When CNN talked to jurors who disagreed, Johnson continued his attack on Neal Boortz’s radio show. And people started asking about the tape.

It is widely believed that District Attorney McDade was handing out copies to anyone he thought would be sympathetic. Griftdrift finds one problem with that in this Georgia Bar Association statement on the Special Responsibilities of a Prosecutor:

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.

Radley Balko finds another in the Walsh Act:

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.”

This is not the only questionable behavior of the prosecutor in this case. Remember, too, the highly suspect visit to the mother of the victim with a tape recorder after she made sympathetic statements towards Genarlow to the AJC. More and more people are starting to wonder, is prosecutor David McDade another Mike Nifong? Did McDade act unethically or did he violate the law?

From Bob Barr’s opening statement in the impeachment hearings of President Bill Clinton:

What is the rule of law? The rule of law finds its highest and best embodiment in the absolute and unshakable right each one of us has to walk into a courtroom, and demand the righting of a wrong. It doesn’t matter what color your kin is, what God you pray to, how large your bank account is, or what office you hold. If you are an American citizen, no one should stand between you and your access to justice. [...]

We are not locked in a strange parallel universe in which up is down, is becomes was, and being alone is a physical impossibility. We are not living in an alien world, we are living in America. We are living in an America in which we know that felons are prosecuted and are not allowed to remain in office. We live in an America in which rights prevail, wrongs must be righted, and indeed, we have to stand up today, tomorrow, and forever, for the rule of law, the Constitution, and accountability…

Let’s investigate David McDade, too, for the rule of law, the Constitution, and accountability.