Live from the Supreme Court, pt III

Paula Smith arguing for the state:

First, arguing that Wilson abandoned his argument on cruel and unusual punishment last year, so procedurally defaulted.

Cite Widner as determinative, as expected. Sears asked timing, whether Widner was decided before the change in the statute. Yes, apparently it was discussed in Justice Melton's opinion in Widner.

State submits nothing new legally, factually, legislatively since Widner. Curley asking if Widner pled the change in statute during his habeas proceeding, and the state concedes he did not.

(My thumbs already ache.)

State argues that enactment of a new statute has no bearing on cruel and unusual punishment.

Ooh, smackdown, State takes a swipe at the PR campaign for Wilson, no bearing on the analysis of the Court because not objective evidence.

And now the State makes this poor woman argue the "he's a bad guy" point, but Sears shuts it down right away and says those facts aren't relevant to this issue.

Hunstein asks about Towery's amicus brief, State says it's not properly before the court and legislative intent is inadmissible. Only resort to it when ambiguous. Sears is pushing back, citing cases that allow legislative intent to matter.

This woman is clearly an appellate lawyer, she is unflappable and very well prepared. Best so far.

State argues Towery purports to say what legislature's intent was in 2006 when no longer in the leg, "should be given no more weight than a man on the street."

Court has never allowed a habeas court to resentence a defendant, not part of the remedies allowed by statute. Sears asks what the proper action of the Court would have been, State responds he could find the sentence invalid and release Wilson, but not amend the conviction which even the trial court cannot do.

Justice Benham asks if appropriate to consider the intent of the founding fathers in preserving writ of habeas corpus and development of it in the states to correct wrongs of the criminal justice system? Smith very quickly ties it into federal habeas cases, she is smoooooth!

"Don't want to disadvantage counsel." Nice.

Now arguing that we should consider the other defendants in this case who may also complain that their sentences are now cruel and unusual punishment as well.

BJ Bernstein for G. Wilson:

Bernstein launches right into Widner, which came out just before the effective date of the statute and legislative change was not briefed in Widner.

Arguing 8th amendment jurisprudence, which finds punishment grossly disproportionate to the act held criminal can be cruel and unusual punishment. Judge Curley wants to exclude C and U cases based on death sentences.

Sears points out only 2 GA Supreme Court cases where court has found a punishment C/U, asks "how are they similar to this case?" She's helping Bernstein, b/c both cases involve a legislative change.

Bernstein makes a joke about the length of the judges' careers, everyone cracks up. Wish I'd heard it.

Sears laying it out again, that Court has acted on C/U cases after legislative change only, so equivalent to this situation. Really helping Bernstein.

Curley says if they rule in favor of Wilson won't it gut the previous ruling of the court that the legislative change doesn't matter?

Bernstein starts to argue factual distinctions and Sears shuts it down as a legal issue, not a factual issue. They start asking if they would have to overrule Widner.

Justice Hines asks about other cases where crimes have moved between felony and misdemeanors, Bernstein distinguishes because there was a mandatory minimum sentence and would recall sex offender registration.

Sears points out 12 years ago this crime was a misdemeanor, now back to a misdemeanor.

Widner would not benefit from the statutory change because the age difference was 4 years apart and the statute was changed to a 3 year window. Wilson fits this, Widner would not.

Benham says the Court is concerned with consequences of reversal--floodgates issue. Bernstein responds that it should only apply to those who fit the Romeo and Juliet provision with consensual contact and the 3 year window, there would only be a handful. Quite candidly she thinks others similarly situated should get benefit of ruling.

Curley; can you cite a single habeas case anywhere that has allowed resentencing by habeas judge? Yes, an Illinois case which has a similar habeas statute.

Curley is really negative, I think we know where he's coming down.

Bernstein notes Wilson has served 29 months, 17 beyond the proper maximum, so no more time to serve. Sears says should either be unconstitutional and he's free, or constitutional and he stays in jail.

Benham is citing to Brandeis, the law never is, it is always "about to be." Want to know if this means habeas relief is ever-changing or static remedy.

"We have created the Great Writ and it still exists for cases like this." Points out the others involved in the conduct in question that night oppose Wilson's incarceration.

Rebuttal by the State:

Hunstein starts right off by saying where is the justice in 10 yrs in jail and a lifetime on the offender registry? State argues that is a choice Wilson had to make. State argues justice is not for the habeas court to decide, it's for the legislature who decided not to make retroactive.

Just realized it's Carley, not Curley. Whoops.

Benham is unreadable on his position, asking strange questions that bear little connection to the issues. I can't read him.

Time is up, adjourned. I'm going to get lunch!