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Sex between unmarried people who are at least 16 years old is legal in Georgia, a unanimous state supreme court ruled on Monday. Citing precedent that established a broad right of privacy in the state constitution, the justices struck down the state’s 170-year-old law banning fornication. They also reversed a delinquency decision against Jesse J. McClure for having sex with his girlfriend when both were 16. The girl’s mother had discovered the two on the floor of the girl’s bedroom early one morning in September 2001. A juvenile court judge fined the boy $250 and ordered him to write an essay. The girl, who was on probation, was sent to a 90-day work camp. Chief Justice Norman S. Fletcher wrote that the court was not curtailing parents’ rights to decide what occurs in their homes. But, he added, “the government may not reach into the bedroom of a private residence and criminalize the private, noncommercial, consensual sexual acts of two persons legally capable of consenting to those acts.” McClure, now 17 and a grill cook at a local restaurant, called the decision “great.” What he did with his now ex-girlfriend, McClure added, “was me and her’s business.” The decision highlighted a busy day at the high court, which released 26 other rulings. Among them, the court held: � that state-performed mental health evaluations of death penalty defendants must be sealed until the penalty phase of the trial, as long as the defense does not argue during the guilt-innocence phase that the defendant’s mental deficiency caused the crime; � that a death row inmate may not waive a hearing that would decide whether he is mentally retarded and, if so, ineligible to be executed; � that Clayton Superior Court Judge Deborah C. Benefield stepped outside her jurisdiction when she tried to stop the state Sentencing Review Panel from reducing a sentence she had issued; and � that the Georgia Court of Appeals was correct in ruling against a lawyer who submitted speedy trial demands and then took leaves of absence that made it nearly impossible for courts to hold the trials by the deadline. REITERATES RIGHT TO PRIVACY The fornication decision reiterated that Georgia’s constitutional right to privacy goes much further than any recognized by the U.S. Supreme Court. For example, the U.S. high court in 1986 voted 5-4 to uphold Georgia’s anti-sodomy law in Bowers v. Hardwick, 478 U.S. 186. But in 1998, the Georgia high court held in Powell v. State, 270 Ga. 327, that the anti-sodomy law violated the state constitution. The 6-1 majority in Powell relied on a 1905 decision that held that a life insurance company could not use a photograph of a man in its newspaper advertisements without the man’s permission. That case, Pavesich v. New England Life Ins. Co., 122 Ga. 190, established that “a person had a legal right ‘to be let alone,’ so long as he was not interfering with the rights of other individuals or of the public.” In Monday’s fornication decision, Fletcher relied almost exclusively on Pavesich and Powell, citing Powell seven times in the nine-page decision clearing the boy officially known as J.M. from delinquency. That reasoning made sense to Peachtree City, Ga., lawyer Catherine B. Sanderson, who represented McClure at trial. “I joked we should write a brief that just said, ‘Follow Powell,’” said Sanderson. RULING PIQUES TWO JUSTICES While the decision was unanimous, two justices made it known they were not completely happy with the ruling. Justice George H. Carley, the lone dissenter in Powell, wrote in a two-sentence concurrence that the principle of stare decisis required him to join the decision. Presiding Justice Leah Ward Sears was more cryptic, as the decision stated without comment that she concurred only in the result. In re: J.M., No. S02A1432 (Sup. Ct. Ga. Jan. 13, 2002). Unlike Carley, who felt compelled to join the decision with which he disagreed, Sears presumably agreed with the decision but wanted it to go further. She has written separately in other cases arguing for wide privacy rights under the Georgia Constitution. Gerald R. Weber of the Georgia chapter of the American Civil Liberties Union, who represented McClure before the high court, called the decision “a vindication … that the government can’t stick its arm or its eye into the bedroom without a very compelling reason.” Fayette County, Ga., Assistant District Attorney Jamie K. Inagawa, who handled the prosecution, said, “We respect the decision of the court. It was never our office’s crusade to end premarital sex in the state of Georgia, but to uphold the laws set out by the Legislature.” MENTAL HEALTH CASES HAILED B. Michael Mears of the Georgia Multi-County Public Defender’s Office, which regularly represents death penalty defendants, hailed the two mental health cases as significant. One dealt with who had access to state-performed mental health evaluations of defendants in death penalty trials. Those are ordered when defense lawyers announce their clients may cite mental illness as a mitigating factor if the defendants are convicted and subjected to a penalty phase. Mears said some judges have ruled that prosecutors may see the results of the tests and use them against defendants during the guilt-innocence phase. Prosecutors from Elbert County, Ga., wanted to do that in the trial of David Russell Johnson, who has been accused of murdering Luther Harper and Melissa Booth. A trial judge ruled against the state, leading to the pretrial appeal before the high court. Writing for a unanimous court, Justice Robert Benham affirmed the ruling, noting that this decision matched decisions by state courts around the country and federal courts. State v. Johnson, No. S02A1330 (Sup. Ct. Ga. Jan. 13, 2002). Johnson’s lawyer, Michael C. Garrett, called the decision “a victory for the mentally impaired.” Elbert County District Attorney Robert W. Lavender could not be reached to discuss the decision. CAN INMATE WAIVE JURY? The other mental health case asked whether a death row inmate may waive his right to a jury trial that would decide his mental capacity and possibly save his life. Lawyers for the inmate, James Randall Rogers, contended he could not waive the trial because it is in the public interest to make sure that the government does not execute someone who is mentally retarded — a violation of both state and federal constitutions. The state’s lawyers responded that Rogers made a knowing, voluntary and intelligent decision to waive the trial and that a judge — after resolving that the inmate was not retarded — may grant the waiver. Writing for a 6-1 majority, Justice Carol W. Hunstein held that Rogers’ lawyers were correct. Carley dissented, arguing that since even the right to a jury trial to decide guilt and innocence could be waived, a hearing on mental retardation could, too. Rogers v. State, No. S02A1310 (Sup. Ct. Ga. May 9, 2002). Ralph I. Knowles, who represented Rogers, said he was pleased with the ruling. Georgia Attorney General Thurbert E. Baker, whose office argued against Rogers, could not be reached to discuss the case. JUDGE’S QUEST ENDED The justices also put a stop to Clayton Superior Court Judge Deborah C. Benefield’s attempts to preserve a 20-year sentence for Ted Lamar Griffin, convicted in 1998 of aggravated assault, battery, false imprisonment and impersonating a police officer. Benefield gave him concurrent sentences of 20 years on the assault, 10 years on false imprisonment, five years on battery and one year for impersonation. Though the appeals court upheld the conviction and sentence, in 2001 the Georgia Sentence Review Panel ordered Griffin’s sentence reduced to five years. In response, Benefield ordered the Department of Corrections and the Board of Pardons and Paroles to ignore the panel’s decision, touching off a fight that later also would embroil Baker and the state attorney general’s office. Last spring, Benefield struck down the statute creating the panel, O.C.G.A. � 17-10-6 (d) as unconstitutionally creating a court or unconstitutionally conferring judicial or appellate power onto a noncourt entity.” The panel is made up of superior court judges who take turns serving. But Superior Court Senior Judge Robert B. Struble granted Baker’s motion to declare Benefield’s order void under a “writ of prohibition.” Benefield, Struble wrote, lacked standing to challenge the panel’s ruling. Georgia v. Benefield, No. 2002CV1765-10 (Clayton Super. June 24, 2002). Benefield, representing herself, appealed to the high court but was rebuffed unanimously. Carley wrote that “Judge Benefield’s subject matter jurisdiction was strictly limited to determining whether the sentences for which Griffin had sought review were among those which the Panel was statutorily authorized to reduce.” Benefield v. State of Georgia, No. S02A1736 (Sup. Ct. Ga. Jan. 13, 2002). “O.C.G.A. � 17-10-6(d) forecloses Appellant’s exercise of subject matter jurisdiction over any other issue related to the Panel’s decision, including the underlying constitutionality of the statute which created that entity,” Carley added. A woman in Benefield’s office said the judge would not comment on the case. Griffin’s lawyer, Christopher G. Nicholson, did not return phone calls seeking comment. SPEEDY TRIAL RULING In a decision on three consolidated cases, the court agreed with the Court of Appeals that Atlanta lawyer Monte K. Davis had manipulated the speedy trial provisions by filing strategic continuances and leaves of absence. Writing for the unanimous court, Justice Carley found that Davis had tried to engineer dismissals of the cases against three of his clients by filing speedy trial motions, and then taking multiple leaves of absence that made it extremely difficult to set the cases on a calendar. Jones v. State, No. S01G1816, Linkous v. State, No. S02G1032, Mimms v. State, No. S02G1376 (Sup. Ct. Ga. dec’d Jan. 13, 2003). Davis said his leaves of absence were for seminars and vacations he had planned far before the trials in these cases. The leaves, he said, never conflicted in any way with setting the cases for trial. Davis said he plans to ask the court for reconsideration. “I am just really disappointed,” he said. “I assumed when they took this case they were going to clarify some problem of law.” The decision mirrors a court of appeals ruling which found that requests for leaves of absence of less than 30 days fall under Uniform State Court Rule 16.1, which allows such leaves without an order if there is no objection. However, a request for one leave — or several periods of leave longer than 30 days total — fall under Rule 16.2, which leaves such requests to the trial judge’s discretion. “Leaves of absence for a total of more than 30 non-consecutive days have a potential for … interference which is comparable to a single leave of more than 30 consecutive days,” Carley wrote. Davis said that the ruling will simply encourage lawyers to file several separate requests for leave, each totaling less than 30 days. The effect will remain the same, he said, except that the court will have more paper to manage. However, Carley anticipated Davis’ contention, and addressed it in the decision. “If an important scheduling consideration is overlooked, the shorter length of leave time also makes it improbable that the consequences will be serious or irreparable,” Carley wrote.

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