A Douglas County Superior Court judge has canceled a bond hearing for Genarlow Wilson, the Georgia teen convicted of aggravated child molesting after having consensual oral sex with a teenaged girl, saying that Wilson was ineligible for an appeal bond under Georgia law.

In his three-page order Wednesday, Superior Court Judge David Emerson wrote that state law prohibits appeal bonds for people convicted of aggravated child molestation and who have been sentenced to at least five years in prison. Wilson’s conviction carried an automatic 10-year sentence without parole.

“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. “The motion for bond is dismissed. The hearing scheduled for July 5, 2007, is therefore canceled.”

“It shocked me today. It was out of the blue and no opportunity to have input on it,” Wilson’s attorney B.J. Bernstein told BlackAmericaWeb.com Wednesday afternoon.

Bernstein said she would file an emergency appeal Thursday morning with the Georgia Court of Appeals. She said she did not know how long the court would take to respond, but “I hope in a couple of weeks, not months.”

On June 11, Monroe County Superior Court Judge Thomas H. Wilson threw out Genarlow Wilson’s felony conviction and ordered his release from prison. In addition, the judge amended the original sentence to misdemeanor aggravated child molestation, granted Wilson’s release and ruled he would not be required to register as a sex offender.

A little more than an hour after the order was issued, however, Georgia Attorney General Thurbert Baker announced his intention to appeal, keeping Wilson in prison unless he could make bond. Douglas County District Attorney David McDade, the prosecutor in the case, said earlier this week that Wilson was still under the terms of his felony conviction, which fell into a special category of crimes that were not eligible for bond while under appeal. Wilson’s attorney, B.J. Bernstein, argued that Wilson was eligible for bond because Judge Wilson’s ruling granted a request for habeas -- which allows the defense to question the constitutionality of the conviction and allows appeal bonds when a ruling is challenged.

As a result of Emerson’s order on Wednesday, Wilson will remain in prison until the appeal of Judge Wilson’s ruling is resolved, unless the state Appeals court rules otherwise.

The Georgia Supreme Court is not set to hear his appeal of his term for aggravated child molestation until October. The justices, without explanation, denied a motion by state Attorney General Thurbert Baker to expedite the appeal.

Wilson has served more than 28 months of a 10-year prison sentence since his conviction in Douglas County on aggravated sexual molestation charges after having consensual oral sex with a 15-year-old girl at a party at a motel on New Year’s Eve 2004. He was 17 at the time.

Wilson and four other young men admitted to detectives that they had had sexual intercourse with one teenaged girl and that another had performed oral sex on them at a party involving about a dozen youths at a Douglasville, Ga., hotel. Under Georgia law at the time, oral sex with anyone under the age of 16 could be classified as aggravated child molestation, even if it occurred between consenting teenagers fewer than three years apart in age. The offense carried a mandatory sentence upon conviction of 10 years in prison.

Sexual intercourse was, and remains, a misdemeanor under Georgia law. The code governing oral sex was amended last July to treat consensual oral sex between teenagers no more than four years apart as a misdemeanor, punishable by no more than 12 months in prison with no sex offender registry requirement. Wilson, now 21, was convicted in 2005.

If Wilson is ultimately required to complete the sentence, he will have to serve a year of probation after his release and be a registered sex offender for the rest of his life.

On Monday, Bernstein wrote McDade asking him to agree to bond for Wilson, noting that Wilson had served more than two years in prison, although Judge Wilson’s order reduced the conviction to a misdemeanor and carried a maximum 12-month sentence.

Bernstein also announced that day that a group of citizens organized by an investment manager and philanthropist in New York had pledged $1 million for bond that can be wired on Wilson’s behalf with 24 hours notice.

Later that day, McDade’s office released a statement in which he said he had never taken a public stance on bond for Wilson because Georgia law does not allow it. Bernstein, he said, "is being disingenuous in asking for bond to be set when it cannot" and accused Bernstein of using theatrics to try to win Wilson’s release.

"David McDade is referring to the wrong statute when he says bond is not allowed," Bernstein told BlackAmericaWeb.com in response late Monday afternoon. "Bond is not allowed in this type of case on direct appeal from the original conviction.  This case is now on appeal from a habeas ordering Genarlow Wilson's release. Mr. McDade's office does not usually handle habeas law, which is the job of the attorney general, who already said he did not oppose bond because he knows that under the law, Genarlow is entitled to it.“
 
"The request for bond is not grandstanding,” she said in a statement. “It is the law."

McDade could not be reached Wednesday.

Bernstein said she is prepared to cite a ruling written by a member of the Georgia Supreme Court that spells out the conditions under which someone in Wilson’s situation may be released.

“Here we have an order for release on habeas because you’re doing time that the courts might eventually say you don’t have to do,” Bernstein said.

The Rev. Raphael Warnock, senior pastor of Ebenezer Baptist Church, is organizing a moment of prayer for Wilson particularly and young people in general during his Sunday service.

“It’s just an opportunity for us as we look at this case that we look at all the tangent issues that ensnare young black men and the activities in which they are engaged, including sexual activity,” Warnock told BlackAmericaWeb.com  on Monday. “It’s a case that, while none of us would condone what happened there, we can pray for those children and pray for our children and the decisions they would make. We are also praying for Genarlow. We feel he’s been in jail long enough.”

Warnock said while he is calling on Atlanta area churches, mosques and synagogues to dedicate prayer during their services this weekend, he hopes the effort will have a wider reach.

“We’re asking pastors to place emphasis on the youth,” Warnock said. “I’m hoping it will expand this to a nationwide effort.”

Charles Steele, Jr., president and CEO of the Southern Christian Leadership Conference, told BlackAmericaWeb.com on Tuesday that the SCLC supported Wilson and the efforts to secure his release.

“Basically, we are all on the same agenda,” Steele said. “We want to make sure we convey the message that we’re not going to sit idly by and watch the miscarriage of justice.”

Genarlow Wilson’s case is just a symptom of a bigger problem in Douglas County, according to Clay Mitchell, vice president of the West Metro NAACP, which represents Douglas and Paulding Counties.

The chapter has scheduled a march and rally for July 14 to call attention to inequities in arrests, convictions and sentencings of black citizens in Douglas County. They have also called for McDade to step down.

“David McDade, in my humble opinon, wields too much power,” Mitchell told BlackAmericaWeb.com last week. “There should be a buffer between the D.A.’s office and the court. Usually, what the D.A. recommends, the judge approves. Lady Justice is supposed to be blind.
 
“If this happened just across the board, that would be one thing,” Mitchell said. “But it happens just to minorities and the economically disadvantaged.”

McDade’s office routinely piles charges on defendants, scaring them into plea deals, “but they didn’t gain anything becauwse they were overcharged in the beginning They keep the bonds high and keep them in jail. It forces them to plea bargain,” Mitchell said.

“We’re going on several roads because it’s going to take a multi-faceted effort” to achieve justice, Mitchell said. “Until we get this man out of here, we won’t have justice in Douglas County.”

“This is bigger than the district attorney, this is bigger than the state attorney general, this is bigger than any government,” said Steele, who added that he would be attending the march in Douglas County. “No one should be discriminated against, in terms of someone pursuing a personal agenda. (Law enforcement officials) should be more concerned about being fair and just.

“It’s popular, in terms of politics, to adhere to those who advance support for his being incarcerated to send a message," said Steele, "but we’re talking about fairness and justice. We’re asking for leaders in their venues to do the right thing.”