Bob Barr

U.S. Justice has no business in Georgia's Genarlow Wilson case
The Atlanta Journal Constitution
July 18, 2007

I just returned from a 10-day trip to Alaska. On Friday when I glanced at the news stories my crack staff assembled for my current events reading, it was as if I'd not been gone a single day. Grady Hospital is still on the brink of fiscal disaster. Iraq continues its downhill slide. The Bush administration still views itself as immune from congressional oversight. And — most disappointing of all — the case of Genarlow Wilson continues to receive front-page media attention.

I was hoping that upon my return to civilization, the Wilson case would be, if not old news, at least relegated to the middle section of the newspapers. But it was not to be. The case continues to garner far more attention than it deserves. Perhaps if the state Supreme Court renders a decision quickly, following oral arguments scheduled for July 20, we can all get back to other pursuits.

The latest flap in the case, however, has a couple of wrinkles that perhaps need to be considered in a more subdued setting than the recent blaring headline describing an attempt by some to transform the case from one involving child molestation into the latest great civil rights crusade.

As distressing as are the continuing efforts by many community leaders to clothe Wilson with the halo of victim-hero, the vilification first of state Attorney General Thurbert Baker and now Douglas County District Attorney David McDade is truly reprehensible.

Even the federal government has now become embroiled in the dispute — rendering a highly unusual "advisory opinion" implicitly critical of McDade (who prosecuted the case on behalf of the people of Georgia).

That the U.S. Department of Justice has allowed itself to be brought into the debate over whether the citizens of Georgia should have access to evidence in this case, as Georgia law not only provides but mandates, is mystifying. The department issued its unusual statement July 10, in which it responded to "inquiries" from unnamed people apparently upset that McDade's office had released — consistent with mandates contained in the Georgia Open Records Act — copies of the videotape evidence that figured in convincing a jury that Wilson was guilty of the crimes charged.

The department's statement noted — correctly — that federal laws dealing with child pornography make the distribution thereof a crime. The federal government's statement also correctly recognized, albeit implicitly, that Georgia law requires that "public records" (a term very broadly defined under state law) generally must be made available to the public.

In fact, "public records" under our state laws explicitly includes exhibits generated or used in criminal and civil trials such as Genarlow Wilson's.

Insofar as both the U.S. and Georgia constitutions provide for trials in criminal cases to be open to the public, clearly it makes sense for the evidence in such cases to be similarly open to inspection by the public. Only if there is evidence that a court explicitly orders be kept under seal, such as might otherwise endanger life or an ongoing investigation, is it proper for a public official, such as a district attorney, to refuse to make records of a trial available publicly, following conclusion of the case.

The Georgia Open Records Act is even more explicit. If the judge with jurisdiction over a case does not approve public inspection of the evidence, the person responsible for the maintenance of the evidence, including a district attorney, is then required by the law to make available a reproduction or copy.

While federal laws regarding public access to court records, including evidentiary records, are far less robust than Georgia's, the general rule is the same — trial records and evidence developed therein, are to be available for public inspection.

Notwithstanding these laws and the fundamental public policy of openness they represent, the Department of Justice statement last week indicated that simply because certain categories of evidence (such as the Genarlow Wilson videotape) are subject to "federal law," any state law provision that deals with such evidence differently, even if being followed by a duly elected state official carrying out the proper laws and procedures with which he or she is charged, must ignore the state laws to which their oath of office requires allegiance. The federal government's statement concluded that federal law will "trump" state laws, presumably even if doing so would leave the state official liable for failing to abide by the state law.

There will be times when two competing sovereigns — the federal and state governments, for example — may view actions of a citizen differently; and more than one U.S. Supreme Court decision allows either or both to exercise prosecutorial discretion in deciding whether to move forward with a prosecution or to carry out some other aspect of the laws.

But to issue a blanket, "advisory" edict that federal law necessarily "trumps" the exercise of a state law being duly complied with by an elected official raises — to say the least — troubling questions of federalism and comity.

Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.