I like the fact he has been released, but can’t help buy think of the irony that many here who think the judge made the proper decision also cry foul about judges “legislating from the bench”. There was a law in place which was violated. On what grounds did the judge overrule this? Or is he creating his own law?
I can’t answer your questions. Here is a description of the original trial etc, composed by a liberal, nonetheless revealing.....
snip:
During the trial, in response to Wilson’s pointed questions about the propriety of prosecuting people for such conduct, Douglas County District Attorney David McDade said that he did not write the law, implying that he had no choice but to prosecute Wilson for aggravated child molestation. McDade said separately that Wilson should have taken a plea deal but that he failed to do so because he “has decided to become a martyr.”
These statements are remarkable in three respects. First, we should be quite disturbed to learn that a prosecutor, who has more discretion in carrying out his job than almost anyone else in the criminal justice system, is prepared to rely on the Nuremberg defense. Yes, a criminal statute literally applied to Wilson’s conduct, but the District Attorney has no obligation to enforce the law slavishly, when even he himself concedes that “[w]e don’t believe that a 10-year sentence is an appropriate punishment [in this case].”
Second, the notion that the decision to exercise one’s Sixth Amendment right to a trial - rather than waive that right by pleading guilty - is a deliberate choice of “martyrdom,” is positively offensive.
Third, McDade’s suggestion that it was Wilson’s responsibility to have taken a pleading option - literally, a confession in exchange for a more lenient punishment - is precisely the sort of “confess and convert” thinking that characterizes a theocratic justice system. It is perhaps no coincidence that the District Attorney chose the word “martyrdom” to describe Wilson’s ultimate punishment for refusing to say what he does not believe: that he did something terrible and deserves to be branded a “child molester” for life and punished for his sins.
http://writ.news.findlaw.com/colb/20070110.html
That's what makes this case so weird. The law under which this kid was convicted has already been repealed. The judge was not 'legislating from the bench', bu ruling on the fact that a ten-year sentence was being served for a violation that no longer existed. Only a pin-eyed law book sniffer wouldn't have released Genarlow at the time of repeal.