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Marcus Dwayne Dixon shared one class with a 15-year-old girl last year at Pepperell High School in Rome, Ga.: “Family Commitment and Career.” Dixon, then 18, did not appear to need schooling on either subject. Born to a drug-addicted, recidivist mother and an absent father, he moved in with his baseball coach at age 10 and was raised by the coach and his wife as one of their sons. A star athlete with a 3.96 grade-point average, Dixon had accepted a full scholarship to Vanderbilt University. What happened after school last Feb. 10, between Dixon, who is black, and the girl, who is white, has been the subject of a trial in Georgia’s Floyd County Superior Court. It also has been examined in national media programs ranging from HBO Sports’ “Real Sports with Bryant Gumbel” to Fox News’ “The O’Reilly Factor.” This week, Dixon is the subject of an article in People magazine. The Supreme Court of Georgia on Jan. 21 will enter the fray to answer a novel legal question over teenage sex and mandatory minimum sentencing. Acknowledging the wide public interest in the case, the court is taking the rare step of broadcasting the arguments over the World Wide Web. It’s not hard to see why the case has caught the nation’s attention, although the justices will not have to deal with many of the hot-button issues that prompted so much controversy. Dixon’s supporters say the girl flirted with him and consented to sex. At trial a witness claimed the girl said she accused Dixon of rape so that she would not get in trouble with her father, who was described as a racist who had whipped her for smoking. The girl said Dixon tracked her down in a classroom trailer that she was cleaning as part of her duties in a part-time after-school job, asked if she were a virgin, grabbed her arms, unbuttoned her pants and raped her on a table. A Floyd jury in May acquitted Dixon of four charges: rape, aggravated assault, false imprisonment and sexual battery. But the jury found Dixon guilty of statutory rape and aggravated child molestation. Statutory rape is, in the case of teenagers less than three years apart, a misdemeanor punishable by as much as a year in prison. But aggravated child molestation — defined as an immoral act in which one touches a child in order to satisfy sexual desires, resulting in injury — is a felony with a mandatory minimum sentence of 10 years in prison. During the trial, the girl testified that Dixon hurt her and that she bled afterward — thereby establishing the injury necessary to prove aggravated child molestation. RULE OF LENITY AT ISSUE The trial transcript sets out the problem that now sits before the Georgia Supreme Court. At sentencing, Floyd Assistant District Attorney John F. McClellan Jr. argued that since the statutory rape and aggravated child molestation charges stemmed from the same conduct, they should be merged. McClellan said that statutory rape was a lesser included offense of aggravated child molestation, so the sentence should be for aggravated child molestation. Dixon’s lawyer, Fred R. Simpson, asked Floyd Superior Court Judge Walter J. Matthews to vacate the aggravated child molestation charge. Simpson argued that the traditional “rule of lenity” required that a defendant convicted under two statutes supported by the same evidence be sentenced under the statute with the lighter sentence. A chief assistant district attorney in Rome from 1996 until 2002, Simpson said he couldn’t recall a case in which aggravated child molestation was tacked onto a misdemeanor charge of statutory rape. Nor could he find in a Lexis-Nexis search a case fitting that description around the state since the General Assembly added lesser statutory rape provisions for teenagers in 1996. “Your Honor, this is one of these issues that just jump out at you,” Simpson said during sentencing. He concluded that because no one else had been prosecuted for the crimes with such drastically different sentences, Dixon’s equal protection rights would be violated if he were sentenced under the aggravated child molestation conviction. Matthews responded that he had no direction from the Georgia appeals courts on the question — so he would leave the matter to them. And since Georgia law did not allow him even to consider whether there was inconsistency between the counts for which Dixon was acquitted and convicted, Matthews said he was left with a guilty verdict on aggravated child molestation. “My hands are tied by the Legislature,” Matthews concluded. Then he sentenced Dixon to 15 years — 10 in prison and five on probation. Dixon, whose football scholarship was rescinded, is now an inmate at Burrus Correctional Training Center in Forsyth. SENTENCED TO 10 YEARS IN PRISON David L. Balser, a business litigation partner at McKenna Long & Aldridge, says he read a newspaper article about the Dixon case, and the more he thought about it, the more it bothered him. “If it’s not rape,” he says, referring to Dixon’s acquittal of rape and three other charges alleging force, “then it’s sex between teenagers.” And he concludes that Dixon should not serve 10 years in prison for having sex with another teenager. Balser got his partners to let him pursue the case pro bono, and now he’s leading the appeal effort for Dixon, along with three other McKenna Long lawyers and Simpson. Balser, who’s general counsel to the Georgia Democratic Party, points out that the last legislative pronouncement on statutory rape made it only a misdemeanor for 17- or 18-year-olds to have sex with teens who are less than three years younger than them. But if a teenager’s sex with another teenager resulting in any injury is considered aggravated child molestation, Balser argues, “that renders meaningless the statutory rape charge. “You’ve got to read the statutes together to make them make sense,” he adds. Balser also relies on the rule of lenity. The rule of lenity, Balser adds, “is not some liberal creation,” but a tradition in the law that has been cited by the likes of conservative U.S. Supreme Court Justice Antonin Scalia. Finally, Balser argues that Dixon’s sentence, as applied, violates the constitutional guarantee against cruel and unusual punishment. (Normally appeals from criminal cases first go to the Georgia Court of Appeals, but only the state Supreme Court can hear constitutional challenges.) CASE CREATES MEDIA STORM Through the efforts of Jackson Spalding, McKenna Long’s outside public relations firm — and the media’s natural interest in a story about sex, sports and race — the story has been covered widely. Stories on CBS News and ABC’s “Nightline” are expected next week. “It’s really been unbelievable,” said Balser. “It’s just kind of taken off.” Leigh E. Patterson, the Floyd district attorney, calls some of the news coverage unfair. In particular, Patterson cites the HBO Sports program, which aired last October. In it, host Bryant Gumbel says, Rome “is still struggling with the kind of racial issues that many Southern towns have already laid to rest.” “It’s a place where the KKK still has a presence,” Gumbel adds while video shows white-robed Ku Klux Klan members marching along a street. Later in the program a piece of graffiti is shown that says, “KKK Kill Marcus.” “We’re being portrayed as backwoods, racist rednecks,” says Patterson, who last recalls a handful of Klan members marching in Rome — and being jeered by onlookers — in the late 1980s. She says the Klan is not active in Floyd. Patterson thinks the HBO video of Klan members came from Forsyth County, which is about 70 miles away from Floyd and was the site of a controversial Klan rally in the 1980s. Ray Stallone, a spokesman for HBO, says the show’s producers asked an Atlanta television station for recent shots of Klan rallies. He adds that they were told the footage came from two or three places, one of which was Floyd. PAST SEXUAL MISDEEDS Patterson and McClellan, the prosecutor on the case who will argue at the Supreme Court next week, maintain that race had nothing to do with their handling of the Dixon matter. “We think a rape occurred,” says Patterson. “We think there was force.” They point to evidence brought up during the trial that Dixon had been in trouble twice before for sexual misdeeds at school. Once he exposed himself to a female classmate; another time he’s alleged to have forced his hand down the front of a girl’s pants. The second incident, discovered during the investigation of the alleged rape, is the subject of a pending sexual battery charge, the prosecutors say. That charge is a misdemeanor. Balser, Dixon’s lawyer, says his client “vehemently denies” the second incident occurred. That story was “presented to the jury in an effort to secure a rape conviction,” Balser adds. “The jury saw the evidence for what it was: a smoke screen designed to deflect attention from the fact that the sex in this case was consensual.” Patterson and McClellan are equally indignant about one of the defense’s best witnesses: A former classmate of the girl. At trial, the boy testified that the alleged victim had told her “they had sex in the trailer but it wasn’t like rape. … [H]e didn’t hold her down or hurt her or anything like that.” The boy added that she told him she didn’t tell anyone the truth because “‘I’m scared of my dad.’” The prosecutors point out that the boy was a last-minute addition to the defense’s witness list, one whose story they could not corroborate after the trial. Michael A. Prieto, a Cartersville, Ga., lawyer representing the girl and her father in a civil suit against the Floyd school system, “absolutely” denies that the girl made up the rape charge. Prieto calls the allegations that the father is racist “reverse discrimination,” adding that the man is “a hard-working manual laborer.” Prieto says that while he can’t look into his client’s heart, “he never once made any racist comment in front of me.” A Rome federal judge dismissed some of the family’s civil rights charges on Thursday. As for legal questions that will be discussed next week, McClellan dismisses Dixon’s case as “a public policy argument” — not one based on the law and precedent that has to be followed by the Supreme Court. He also says that just because the jury acquitted on rape and the other force charges, “there is no determination it was consensual.” ‘PROSECUTORS DO THIS ALL THE TIME’ J. Thomas Morgan III, the outgoing district attorney in DeKalb County, points out that sex laws do not always make sense, explaining how teenage intercourse has a lighter punishment than teenage oral sex. While the Georgia Supreme Court last year struck down the state’s fornication law, it left intact rules against unwed sex by children under 16. But, he says, if he had a case such as the Dixon matter, in which he believed a rape occurred, he’d tack on aggravated child molestation: “Prosecutors do this all the time.” Morgan called Dixon’s plight “a sound policy argument” for the General Assembly to make provisions for teenage sex and aggravated child molestation — but not a good case for the state Supreme Court. Donald F. Samuel, an Atlanta criminal defense lawyer, said the Dixon case sounds like “a perfect example of the horrors of mandatory minimum sentences.” “The legislatures apparently don’t trust judges and parole boards,” Samuel adds, “so, sight-unseen, they have decided that regardless of any of the facts, regardless of any mitigating circumstance, in all cases, without exception, 10 years without parole is mandatory.”

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