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The 53rd floor of Atlanta’s SunTrust Plaza, which houses the sleek conference rooms of McKenna Long & Aldridge, looks like a place for sober negotiations and, at best, a smile and a handshake at the end of a hard-fought business deal. But tears welled up in the eyes of David Balser as he told a press conference how he felt about Monday’s 4-3 Georgia Supreme Court decision that should save his client, former prep football star Marcus D. Dixon, from spending another nine years in prison. “The process works,” said Balser, a business litigator at McKenna Long who took Dixon’s criminal case as a pro bono project and wound up being the lead lawyer in an appeal that attracted national attention. Despite Balser’s confidence in the legal system, the majority opinion that lifted Dixon’s aggravated child molestation conviction — for which he had been sentenced last year to a mandatory minimum 10 years in prison — argued that something is wrong with how Georgia’s sex laws are applied to teenagers. “Under the statutes as they are now written, it is entirely possible that teenagers could be convicted of aggravated child molestation, and receive the concomitant ten-year minimum sentence, if they willingly engage in sexual activity,” wrote Chief Justice Norman S. Fletcher. State Rep. Mary Margaret Oliver, D-Decatur, who chairs the Georgia House Judiciary Committee, said the court majority was right. “We respond emotionally and inconsistently” to sex crimes involving children, she said, adding that she supports a rewrite of the laws declaring which crimes require mandatory minimum 10-year sentences. Balser reiterated the court’s urging that the General Assembly change the sex laws to contemplate sexual activity between minors, calling the current laws “a mishmash.” 10 YEARS INSTEAD OF ONE In Dixon’s case, Floyd County prosecutors had charged Dixon with rape, aggravated assault, false imprisonment, sexual battery, aggravated child molestation and statutory rape of a 15-year-old classmate. He claimed the encounter was consensual. A jury last year acquitted Dixon of the charges involving forced-rape, aggravated assault, false imprisonment and sexual battery. But the jury convicted Dixon of misdemeanor statutory rape, defined as sex between 17- or 18-year-olds and teenagers who are less than three years younger, and aggravated child molestation, defined as an immoral act in which one touches a child in order to satisfy sexual desires, resulting in injury. The girl testified that she had been a virgin and that she bled after the incident, providing the injury to support the molestation charge. That charge brought a 10-year mandatory minimum sentence, instead of a one-year sentence for just misdemeanor statutory rape. DISTINGUISHING BETWEEN CRIMES Fletcher wrote that the laws establishing statutory rape and aggravated child molestation show “a clear legislative intent to prosecute the conduct that the jury determined to have occurred in this case as misdemeanor statutory rape.” Echoing arguments that Balser and his team from McKenna Long made in briefs and at oral argument, Fletcher pointed out that the General Assembly in 1996 prohibited prosecutors from charging most teenagers having consensual sex with other teenagers with felony statutory rape. “It would be entirely incongruous with the intent of the Legislature,” Fletcher wrote, “if the State retained the discretion to prosecute the exact same conduct as either misdemeanor statutory rape or felony child molestation.” Presiding Justice Leah Ward Sears and Justices Robert Benham and Carol W. Hunstein joined Fletcher to form a majority, which concluded by asking the General Assembly to clarify the law to “make a more recognizable distinction between statutory rape, child molestation, and the other sexual crimes … .” Dixon v. State, No. S04A0072 (Sup. Ct. Ga. May 3, 2004). DISSENT: MAJORITY ‘CLOUDED’ LAW The three dissenters — Justices P. Harris Hines, George H. Carley and Hugh P. Thompson — didn’t think clarification was needed. “It is the majority which has clouded the law and chosen to construct a result different from that mandated by the duly enacted statutes, and from the jury’s verdicts,” wrote Hines. Like the Floyd County prosecutors, they argued that Dixon’s actions consisted of two distinguishable crimes. Writing for the dissenters, Hines pointed out that statutory rape did not require that an injury be proved, but aggravated child molestation did. Nothing, he added, showed that lawmakers in 1996 intended that aggravated child molestation and statutory rape be considered one crime. Hines also accused the majority of mischaracterizing the girl’s injuries as “slight” and for misusing one of his writings on the issue of sex laws. Floyd County District Attorney Leigh E. Patterson said she would ask the court to reconsider its ruling. “We’re obviously very concerned about this,” she said. It’s not clear if the ruling will become a consistent topic in Sears’ re-election campaign, but her opponent criticized the decision, while not referring to her directly. G. Grant Brantley, a former Cobb County judge running against Sears, said he had looked over the decision and agreed with the dissent. The majority, of which Sears is a member, “decided how they wanted it to be,” said Brantley. He said results-oriented decisions were wrong, arguing that judges should follow the law to a conclusion, not work backward from a result they want. NATIONAL ATTENTION Dixon’s story was widely covered by the national news media. The adopted black son of a white couple, a talented athlete with a 3.96 grade-point average and a Vanderbilt University football scholarship, Dixon claimed the girl, who is white, made up the rape charge to avoid retribution from her racist father who would have beaten her had he thought the encounter was consensual. Floyd County prosecutors vehemently denied that race played a part in the case against Dixon and bristled at television stories about the case that depicted Floyd County as stuck in the pre-civil rights era. Leaders in the black community led two rallies at the court to demand a decision in favor of Dixon. Balser said the next move in the case will likely come from the trial judge. Balser said he hoped the judge would order Dixon released because he has already served a year, the maximum sentence for misdemeanor statutory rape.

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