June 13, 2007 -- Genarlow Wilson, whose 10-year prison sentence for having consensual sex with a 15-year-old when he was 17 was voided by a judge Monday, will spend at least three weeks in prison, according to a decision announced Tuesday.
Douglas County Superior Court Judge David T. Emerson set a bond hearing for July 5.
Wilson's attorney, B.J. Bernstein, told ABC, "I wish it were sooner, but I understand that the courts are busy and that we are not at the front of the line, and I trust in this judge. At the same time, this is a unique situation in which the court has already ordered his release." Bernstein added that she hoped the district attorney would finally consent and agree to the bond.
Wilson was disappointed to learn he'd remain in jail while the prosecutor in the case filed an appeal, his lawyer told ABC News. Bernstein broke the news to her client by phone Monday around 3:30 p.m.
"He already heard he had won, and people in prison were high-fiving him for his victory. I had to be the one to tell him that he had to stay in jail, and he wasn't going to get to go home with his mom."
Wilson met the news of his release and subsequent order to stay in prison with mixed emotion. "He was so happy about the court's order," Bernstein said. "When I told him he had to stay in prison, you could hear the disappointment in his voice. But he's trying to stay positive."
Douglas County District Attorney David McDade did not return repeated calls from ABC News Tuesday.
On Monday, Monroe County Superior Court Judge Thomas H. Wilson -- no relation to Genarlow Wilson -- granted habeas relief to the 21-year-old and ordered his release. The judge handed him a 12-month misdemeanor sentence, plus credit for time served. According to the decision, Wilson would not be required to register as a sex offender.
In his ruling Monday, Wilson wrote, "The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor, and without assistance from this Court, will spend eight more years in prison, is a grave miscarriage of justice." The judge added, "If this court or any court cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish … justice being served in a fair and equal manner."
The one-time high school honor student and star athlete was convicted and sentenced to a mandatory 10 years in prison for receiving consensual oral sex in 2003 from a 15-year-old girl when he was 17. Wilson, now 21, has served more than two years in prison.
But just 90 minutes after the judge's Monday ruling, Georgia Attorney General Thurbert Baker filed notice that he would appeal the decision before the Georgia Supreme Court. Baker said in a statement that the judge had overstepped his authority and that an appeal was necessary "to resolve the clearly erroneous legal issues created by the order."
Although Baker is a Democrat and Georgia's top black elected official, his appeal should not be particularly surprising to the black community or Democrats. His efforts to prosecute civil rights icon state Sen. Ralph D. Abernathy III for misusing state funds was met with angry rallies in 1999, while his conservative enforcement of the law has faced ongoing criticism.
"We begged [Baker] not to appeal," Bernstein told ABC News. "We are seeking to get him out on bond immediately. Enough is enough." She argues that Wilson who does not have a prior record poses no flight risk and should be released as soon as possible.
While the parties wait for the briefing schedule to come out and the appeal to get under way, Wilson could remain in prison for months if the bond is not granted.
Bernstein said she's also fighting to ensure that Wilson's name is fully cleared.
"We absolutely do not want him to be let out with a sex offender registry, which would mean he couldn't live within 1,000 feet of a church or a school, or ever work with kids," she said.
The idea that he could leave prison as a registered sex offender is particularly troubling to Wilson, who told Bernstein he wanted to talk with young people about the potential legal consequences of their actions.
Inspired by Wilson's case, Bernstein already has started a nonprofit group, Myfifth.org, which features articles, interactive maps and even a rap song to teach children about their Fifth Amendment rights. While ignorance of the law was no excuse for Wilson in his case, she says he wants to make sure that young people everywhere do not make the same mistakes he did.
Wilson's Initial Plea for Freedom
Bernstein had argued in a June 6 hearing that Wilson's 10-year sentence and the requirement that he register as a sex offender violated the Constitution. Bernstein also noted that while the Georgia legislature last year had changed the law under which Wilson had been convicted largely because of Wilson's story, he could not benefit from the change because the law did not apply retroactively to his case.
Oral sex between teens that once constituted aggravated child molestation and carried a mandatory sentence and sex offender registration is now considered a misdemeanor and is punishable by no more than one year in jail. The amendment also threw away the sex offender registry requirement in these particular cases.
This weekend, the Douglas County District Attorney's office made an offer to Wilson that would have allowed him to plead to first offender treatment, which meant he could qualify for a shorter sentence or possible release based upon time already served. He also would not have a criminal record and would not be subject to registering as a sex offender once his sentence had been completed. Wilson, through his attorneys, rejected this offer and continued to argue for the judge to overrule his sentence.
Judge Overrules Wilson's 10-Year Sentence; the State Appeals
After appealing the judge's decision to overrule the 10-year sentence for allegedly overstepping his authority, the attorney general said in a news release that he would "seek expedited treatment of the appeal so that all legal impediments to Wilson's case can be resolved without undue delay."
Bernstein says this is not good enough and continues her fight to get Wilson released. She remains hopeful that because Wilson is unique and already has received habeas relief, he will be a good candidate for bond.
Meanwhile, in the midst of her client's legal battle and the infamous Paris Hilton saga, Bernstein adds that there are lessons to learn from these types of cases about the broader ideas of what is important in our justice system and how decisions are and should be made.