Font Size: 
District Attorney in Ga. Teen Sex Case Under Fire
Video used against Genarlow Wilson is now subject of accusations against local prosecutor
Fulton County Daily Report
July 13, 2007
A group of lawmakers and community activists wants Douglas County, Ga., District Attorney J. David McDade punished for distributing to state legislators a videotape showing sex acts in his efforts to block legislation that could have set free Genarlow Wilson.
The group is using as ammunition a statement made late Wednesday by U.S. Attorney David E. Nahmias that distribution of the videotape, used as evidence in Wilson's child molestation trial, violated federal law. On Thursday, Nahmias elaborated, naming McDade and saying he violated federal child pornography statutes. Nahmias declined to comment on whether he'd prosecute McDade or others who accepted the tape.
McDade did not respond to two requests for comment.
The videotape, censored parts of which have been aired in national television news reports on the case, is said to show Wilson, who was then 17, having oral sex with a 15-year-old girl during a 2003 New Year's Eve party in a Douglas County hotel room. A judge has said the girl's participation appeared "voluntary," but the act by Wilson was a felony under state law at the time. Wilson, who was acquitted of a rape charge stemming from the same party, was convicted of aggravated child molestation and sentenced to a mandatory 10-year prison sentence.
A trial judge last month said Wilson's sentence was "a grave miscarriage of justice" and ordered him released. The Georgia Supreme Court on Monday said they would hear the state's appeal of that ruling next week.
In addition to supporting Wilson's appeals, the group of lawmakers and activists have targeted McDade. Sens. Emanuel Jones, D-Decatur, and Vincent Fort, D-Atlanta, said McDade abused his role as prosecutor by asking legislators to view the videotape of Wilson's acts as a way to persuade them to oppose the legislation favorable to Wilson.
"He's gone beyond being an aggressive prosecutor," Fort said during a Thursday news conference at the state Capitol. "This has been a ferocious, vindictive prosecution of Genarlow."
The legislation, Senate Bill 37, would have allowed a judge to give Wilson a misdemeanor sentence, rather than a felony sentence. Wilson would have received a misdemeanor sentence under the 2005 "Romeo and Juliet" changes to a state law that originally made defendants convicted of aggravated child molestation face harsh penalties.
SB 37 was approved by the Senate Judiciary Committee on March 19 but was never brought to a vote in the full Senate.
Although the videotape of Wilson at the New Year's Eve party had been circulated in public since 2004, Fort said, McDade went out of his way to push the videotape on lawmakers.
"[McDade] has crossed the line," Fort said. "He needs to be held accountable," suggesting that McDade be disbarred.
One state senator -- Republican Eric Johnson of Savannah -- has admitted to possessing a copy of the videotape and viewing it. Johnson, the Senate president pro tempore, told the full Senate after viewing the videotape, he decided to oppose SB 37, saying that Wilson was a sexual predator and the girls involved were victims, not consensual participants. Johnson received a copy of the videotape from Irene Munn, an assistant to McDade, said Marshall Guest, a spokesman for Johnson. After viewing the tape, Johnson gave his copy of the tape to WSB-AM radio talk-show host Neal Boortz, Guest said.
Four state legislators contacted by the Daily Report on Thursday said they had not seen the tape and were not offered a copy of the tape. Those legislators were Sens. Preston Smith, R-Rome; Seth Harp, R-Midland; and David Adelman, D-Decatur; and Rep. Tyrone Brooks, D-Atlanta.
While SB 37 was assigned to the Senate Judiciary Committee, the committee's members were never offered a copy of the videotape, Smith said Thursday through a spokeswoman, Merri Brantley. Smith is chairman of the Senate Judiciary Committee.
The existence of the tape was never discussed by the committee, Brantley said.
"There was very little testimony and very little discussion, if any" on SB 37, Brantley said.
Jones said he has asked Attorney General Thurbert E. Baker to issue an opinion on whether McDade's actions distributing the videotape were illegal. Baker's office has been in contact with the U.S. Attorney's Office about McDade's distribution of the tape, said Baker spokesman Daryl Robinson. Robinson declined further comment.
Nahmias said that while McDade has said he released the tape in accordance with Georgia's Open Records Act, federal law trumps the Georgia statute. Nahmias cited Article VI of the U.S. Constitution stating, "the laws of the United States ... shall be the supreme law of the land."
Nahmias said the objective of his news release was to end further dissemination of the tape.
"What we wanted to do is basically tell whoever was distributing the videotape to stop, to tell the people who have the videotape, you are in possession of child pornography," Nahmias said. "We encourage you to stop being in possession."
Joseph Lowery, president emeritus of the Southern Christian Leadership Conference, said at Thursday's news conference that a group was preparing to submit to the State Bar of Georgia a complaint against McDade.
Last month, McDade told the Daily Report he believed it was an appropriate exercise of his discretion to show legislators the videotape evidence from the case, given their consideration of legislation designed to help Wilson get relief. He said Wilson's lawyer, B.J. Bernstein, was leading legislators to believe the conduct at issue in the case was consensual.
"I was specifically requested by members of the Legislature to tell them what the prosecution's side was ... so they could make up their mind," McDade said.
He acknowledged that there have been instances where prosecutors have said the mere possession of certain evidence in a criminal case would itself be a crime, saying "yes, it was a decision that was not made very lightly at all." But he said there was no crime in legislators' viewing of the tape. "I don't believe there'd be any credible effort by anyone to say it's criminal," McDade said.
Harp, vice chairman of the Senate Judiciary Committee, said that while he didn't see the video, legislators nevertheless would have had a duty to view the tape as part of their consideration of SB 37.
"There is absolutely no federal law anywhere that says a state senator doesn't have an obligation to review that tape as evidence," said Harp, a family law attorney. "You're telling me that a judge in a pornography case can't look at the porn?
"McDade would have been remiss in not making an offer to show [the tape] to us," Harp said.
David E. Hudson, an Augusta media lawyer, said prosecution of McDade for releasing the videotape in response to a public records request "would be a very difficult prosecution because there was no criminal intent on the DA's part. His intent was to comply with what he thought Georgia law required."
But Ebenezer Baptist Church pastor the Rev. Raphael Warnock said during Thursday's news conference that McDade's actions were similar to those of former Durham County, N.C., prosecutor Mike Nifong. In June, the North Carolina Bar stripped Nifong of his law license for his prosecution of Duke University lacrosse players in an alleged rape case.
"If Nifong was disbarred, then the Bar certainly should look at McDade," Warnock said.
Staff reporters R. Robin McDonald and Alyson M. Palmer contributed to this story.
