June 27, 2007 — -- Genarlow Wilson, whose 10-year prison sentence for having consensual oral sex with a 15-year-old when he was 17 was voided by a judge earlier this month, is not eligible to be released on bail while the state appeals his sentence, a judge ruled today.
The ruling, which came just days after investors announced they'd post a $1 million bond for Wilson, likely means Wilson will remain in jail for several more months. The Georgia Supreme Court is scheduled to hear his case in October.
The order, issued by Douglas County Superior Court Judge David Emerson, canceled the bond hearing that he originally set for July 5.
In his Wednesday ruling, Emerson cited a Georgia law that prevents trial courts from granting bail to people convicted of certain crimes, including aggravated child molestation, when the original sentence exceeds five years, as is the case with Wilson.
"As the court has no authority to grant an appeal bond in this case, there is no need for an evidentiary hearing on the defendant's eligibility for a bond," Emerson wrote in a three-page order.
Wilson's attorney B.J. Bernstein released a statement after the ruling saying she will file an appeal with the Georgia Court of Appeals.
Before Emerson's decision, Bernstein told ABC News that she was hopeful that her client would be released pending appeal because "this is a unique situation in which the court already has granted habeas relief and ordered Wilson free."
Bernstein did not immediately return a call Wednesday to comment after the judge's Wednesday ruling. Douglas County District Attorney David McDade, whose office originally convicted Wilson, was also unavailable for comment.
On June 11, Monroe County Superior Court Judge Thomas H. Wilson ordered Genarlow Wilson released. Judge Wilson had called the original sentence a "grave miscarriage of justice" in court papers, and replaced it with a 12-month misdemeanor sentence, plus credit for time served. According to the judge's decision, Wilson would not be required to register as a sex offender.
The one-time high school honor student and star athlete, now 21, had served more than two years of his mandatory 10 years in prison for having consensual oral sex in 2003 from a 15-year-old girl when he was 17.
But just 90 minutes after the judge's June 11 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."
Baker 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."
Earlier this week, in anticipation of the bond hearing and in an effort to draw more attention to the case, prominent New York City investment manager Whitney Tilson and 10 others offered to provide $1 million in bail money for Wilson.
Tilson told ABC News that they deliberately offered an exceedingly large number because "it was meant to show how passionately we believe that every single day this young man sits in prison it is a continuance of this miscarriage of justice."
Today's ruling ensured that Wilson will remain behind bars as the controversial case continues, now without hope of early release on bond.
Wilson was disappointed, Bernstein told ABC News, when she initially broke the news June 11 that the state was appealing and he'd have to stay in jail until the bond hearing, rather than being released at that time.
"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," Bernstein said.
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."
In his ruling, Judge 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."
Shortly after the June 11 ruling, Attorney General Baker filed notice that he would appeal the decision before the Georgia Supreme Court.
"We begged [Baker] not to appeal," Bernstein told ABC News. She was hoping to get Wilson out on bond, arguing that he does not have a prior record and poses no flight risk.
Bernstein told ABC News 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.
Bernstein 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 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.