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Justices of the Georgia Supreme Court sounded skeptical Tuesday of the state’s law criminalizing sex between unmarried people — but it was far from clear the 1833 statute would be struck down entirely. The case involves Jessie McClure, who challenged the law after a juvenile court found him delinquent for having sex with his girlfriend, when both were 16. The two had been caught in the girlfriend’s bedroom by her mother, whereupon McClure fled out a first-floor window. A juvenile court judge fined McClure $250 and ordered him to write an essay on why what he did was wrong. McClure’s girlfriend was already on probation and reportedly was sent to a 90-day youth work camp, although lawyers on Tuesday speculated that other infractions may have led to that harsh sentence. In re: J.M., a child, No. S02A1432 (Ga. June 5, 2002). Gerald R. Weber, a lawyer for the American Civil Liberties Union representing McClure, said the court’s 1998 decision holding the state’s sodomy law unconstitutional set a precedent that should doom the fornication law as well. The 6-1 ruling in Powell v. State, 270 Ga. 327, held that Georgia’s anti-sodomy law violated the state constitution’s privacy guarantees with regard to a “non-commercial sexual act that occurs without force in a private home between persons legally capable of consenting to the act.” Weber said his client and the girlfriend were old enough to consent, according to statutory rape laws. Why, asked Chief Justice Norman S. Fletcher, did McClure have a right of privacy in someone else’s home? Weber said the court should make a distinction between McClure’s right to privacy from his girlfriend’s mother and “the government in the bedroom.” The privacy of Georgia’s bedrooms was the focus of much of the 30-minute oral argument. Census figures show that more than 145,000 unmarried couples live together in Georgia, and Weber pointed out that anyone who is not married and has sex is branded a criminal by state law. “Apparently this is a law that’s violated quite frequently,” deadpanned Justice Robert Benham. In his nearly 20 years on the bench, why had he not seen more fornication cases, Benham asked Fayette County, Ga., prosecutor Jamie K. Inagawa. Inagawa responded that in his experience, people charged with statutory rape pleaded guilty to the lesser crime of fornication as part of a plea bargain. Pressed by Fletcher, Inagawa said he had not brought a fornication case in the past five years — although once he did present an adultery charge to the grand jury. The infrequent manner in which the fornication law is enforced, observed Fletcher, “opens the door to selective prosecution.” Justice George H. Carley, the lone dissenter from the Powell case, asked Weber and Inagawa whether there was any way for the court to rule without dealing with the law’s constitutionality. Weber said he doubted it, while Inagawa was more circumspect. SPEEDY TRIAL RULE TWISTED? The sex case was the last of seven cases the high court faced Tuesday. The day started with Atlanta lawyer Monte K. Davis defending himself against allegations that he improperly manipulated the state’s speedy trial law. Criminal defendants who request a speedy trial must be tried within two terms of the local court or they are acquitted automatically. Georgia Court of Appeals judges had accused Davis of submitting speedy trial demands for his clients and then taking leaves of absence that made it nearly impossible for courts to hold the trials by the deadline. Before the justices, Davis denied the allegations and said the court must balance the rights of defendants, the state and an attorney’s right to have a vacation. “With that balance comes a duty to avoid toying with the court,” Carley said. Arguing for the state, DeKalb Assistant Solicitor Heather C. Waters said courts should not allow “excessive” absences during the speedy trial period. Presiding Justice Leah Ward Sears sounded frustrated that Waters could not identify a more specific rule. “You’re requiring us to balance this,” Sears said. “Excessive here, not excessive there — I don’t know if we can do that.” Fletcher warned both sides that the court’s decision would not just affect the cases at hand, which were DUI cases, but all types of criminal cases. “Our ruling here could have great impact,” he added. The speedy trial issue came in three consolidated cases: Jones v. State, No. S01G1816, Linkous v. State, No. S02G1032, Mimms v. State, No. S02G1376 (Ga. cert granted, June 26, 2002). WRONGFUL-DEATH QUESTION The day’s second argument came courtesy of the 11th U.S. Circuit Court of Appeals, which needed the state high court’s interpretation of Georgia law on this vexing question: If a wife murders her husband, is the murderous spouse the only person who may sue for wrongful death? At issue was the 1998 shooting death of David Newton, for which Newton’s wife, Ethel Elizabeth Tessmer, was convicted. Newton’s mother tried to sue Tessmer for Newton’s wrongful death, but a federal judge in Macon, Ga., ruled that only Tessmer, as the surviving spouse, could bring the suit. The mother’s lawyer, Ralph S. Goldberg, urged the court to apply to the state’s wrongful-death statute Georgia’s policy prohibiting those who murder their spouses from collecting inheritances. Allowing only Tessmer to bring the suit, Goldberg argued, just wouldn’t make sense. Carley agreed — up to a point. “It doesn’t make sense at all,” he said, but he added that wrongful-death suits are not assets and that the court usually applies “strict construction” to the law. Sandra J. Popson, Tessmer’s lawyer, urged the court to continue to view the law strictly, even if in this case it could produce what could be seen as a harsh result. “You get into trouble when you read into statutes more than what’s really there,” she said. The case is Carringer v. Rodgers, No. S02Q1483 (Ga. June 14, 2002). LEVEL OF PROOF ARGUED Later on Tuesday, the court heard arguments over whether medical malpractice plaintiffs should have to prove their injuries were caused by a defendant’s negligence “within a reasonable degree of medical certainty as proven by a preponderance of the evidence.” In the case before the justices, a Gwinnett County, Ga., trial judge instructed a jury to use the “certainty” standard in deciding whether a plaintiff proved her case against a plastic surgeon she claimed botched a breast reduction. The jury in 2000 ruled for the doctor, but the plaintiff appealed and won a reversal. A panel consisting of Judges Frank M. Eldridge, M. Yvette Miller and Presiding Judge Gary B. Andrews decided that the term “medical probability” should have replaced “medical certainty” because “certainty” was too high a standard. Andrews concurred in the judgment only. Thompson v. Zwiren, No. A01A1931 (Ga. Ct. App. March 12, 2002). The justices and the lawyers debated whether “certainty” created an improperly high burden on the plaintiff. Sears asked if the court could disapprove of the word “certainty” being in the jury charge — but nonetheless find the error harmless. “We do it all the time in criminal cases,” Fletcher said. “We probably shouldn’t do it all the time.” The case before the Georgia Supreme Court is Zwiren v. Thompson, No. S02C1063. (Ga. June 21, 2002).

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