Finding that prosecuting a man for failing to register as a sex offender on the basis of an old conviction under an unconstitutional sodomy law would be “unthinkable,” U.S. District Judge Amy Totenberg granted a writ of habeas corpus to Charlton Green on December 9, directing that the State of Georgia release him from the obligations of probation to which he had been sentence.
Green, then age 20, and three friends, another young guy and two young women, were fooling around in a hotel room, and Green and the other guy got into sex. This happened in Georgia in 1997, at which time the Georgia sodomy law was still in effect. It had been challenged in the U.S. Supreme Court in 1986 in the case of Bowers v. Hardwick, but the Supreme Court rejected the challenge.
Somehow, Charlton’s activity came to the attention of the police, and he was charged with violating the sodomy law. He pled guilty, and was initially sentenced to probation as a first offender, but he violated the terms of probation and was convicted and sentenced in January 1999. (By that time, the Georgia Supreme Court had declared, In Powell v. State (1998), that the state’s sodomy law was unconstitutional as applied to private, adult consensual activity, but evidently this made no difference to the court that sentenced Charlton in January 1999.) Part of his sentence was to be designated as a sex offender and required to register with local law enforcement authorities wherever he was living. Several years later, in 2003, the U.S. Supreme Court, ruling in a case involving the Texas Homosexual Conduct Law, overruled its 1986 decision in Bowers v. Hardwick, holding that private, adult consensual same-sex activity was protected under the Due Process Clause and could not be made the subject of criminal prosecution. In 2003, the Court said that Bowers v. Hardwick was “wrong when it was decided.”
This means, logically, that in 1997 Charlton Green had pled guilty under an unconstitutional statute.
Dial forward to 2009. Green’s mother fell ill with cancer, and he moved to her home to help care for her. Contacting the local sheriff to register his presence slipped his mind. But he was indicted and convicted in May 2009 in the Cherokee County Superior Court for failing to register as a sex offender. The sole basis of his being a sex offender, of course, was the 1997 guilty plea under the unconstitutional sodomy law. In response to this conviction in May 2009, Charlton was sentenced to 30 years in prison, two to actually serve and 28 on probation. Charlton’s attorney at the trial failed to raise the issue that the law under which he had been originally convicted was unconstitutional. After his conviction, Charlton got a new attorney and sought a new trial, raising the unconstitutionality issue for the first time and arguing that he had ineffective assistance from counsel in the first proceeding. The trial court denied the motion, and the Georgia Court of Appeals affirmed the denial, saying that he could not show he had been prejudiced because his conduct in that hotel room was not “private” and thus not within the protection of the Powell and Bowers rulings. While Charlton’s appeal was pending, he applied to the Pickens County Superior Court to get his original sodomy convicted vacated, and Judge Brenda Weaver vacated the conviction, finding “that the undisputed evidence supports Mr. Green’s claim to the protections of Powell and Lawrence,” but the Georgia Court of Appeals reversed this ruling on grounds of procedural irregularity.
After relating all of this, U.S. District Judge Amy Totenberg wrote, “Thus, as it stands, Green remains subject to the reporting requirement of O.C.G.A. Sec. 42-1-12 based on his conviction under a law that has been deemed unconstitutional. On that basis, he petitions for a writ of habeas corpus.” Charlton has finished serving his two year sentence, but remains subject to the 28 year probation sentence, so he remains eligible to seek the writ as somebody whose liberty remains constrained by the state.
Judge Totenberg decided that for purposes of deciding this petition, it is essentially irrelevant that Charlton’s original conviction has not been vacated and is not subject to appeal at this time. However, she concluded that it was clear that Green received ineffective assistance of counsel in 2009 when his lawyer failed to raise the unconstitutionality of the sodomy law as a defense to his prosecution for failing to register. “The state cannot give legal effect to a conviction under an unconstitutional criminal statute,” wrote Totenberg. “Convicting Green for failing to register as a sex offender solely because he was previously convicted under the unconstitutional anti-sodomy statute would amount to ‘state-sponsored condemnation’ of constitutionally protected behavior” she continued, citing both Lawrence v. Texas and the recent 4th Circuit decision, MacDonald v. Moose, which struck down the Virginia sodomy law in reliance on Lawrence.
Totenberg also rejected the state trial court’s reasoning that by pleading guilty to the sodomy charges, Charlton Green had “waived his defense” including any future defense based on the unconstitutionality of the sodomy law. She wrote that it would not “comport with fundamental fairness and due process of law to allow a guilty plea to waive a constitutional challenge to the use of a conviction based on constitutionally protected, private consensual sexual conduct that cannot be criminalized.”
The judge also rejected the state trial court’s conclusion that although Powell and Lawrence had changed the law, “those changes did not apply to this factual situation because the conduct was not ‘private.'” The trial court was undoubtedly relying on old cases that have held that for sexual conduct to be private, it must occur in an enclosed place in which only the two participants are present. Under this reasoning, group sex involving more than two participants or sex taking place where non-participants are observing cannot be considered to be taking place in “private.” Judge Totenberg rejected that idea, citing a 2000 Georgia Court of Appeals decision, Mauk v. State, 529 S.E.2d 197, which said “a private place is a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.” By that standard, Totenberg found that the hotel room being used by the four young adults was a “private place.” After citing prior Georgia cases holding that a hotel room is a “private place,” she wrote, “And the presence of two private, consenting observers does not transform the private act into a public one. Here, the two women present in the hotel room during the sexual act were not random members of the public but personal friends. While the Court recognizes that the presence of others might be relevant to the question of whether sexual conduct is private, the constitutional right to privacy of young adults engaging in consensual sexual conduct behind the closed doors of a hotel room is not vitiated by the simple fact that four people are in the room.”
She also anticipated any argument about the retroactivity of Powell and Lawrence, noting that Georgia courts had already accepted the proposition that “the rule established in Lawrence is a new rule of substantive law that may be applied retroactively to cases on collateral review.” This would certain seem obvious from the Lawrence Court’s statement that Bowers v. Hardwick was wrong when it was decided, not just prospectively from 2003 on.
Totenberg drew an analogy to the Supreme Court’s ruling on interracial marriage in explaining why she was issuing a writ of habeas corpus to Green. “Just as it is unthinkable that a conviction of miscegenation entered before Loving v. Virginia, 388 U.S. 1 (1967), was decided could be used after that decision to establish an element of a crime, so is it unthinkable that a conviction based on constitutionally protected private consensual sexual conduct entered before Powell or Lawrence was decided could be so used. Counsel who fails to object to the use of an extant sodomy conviction that on its face raises serious concerns as to its constitutional validity has failed to provide effective assistance.” Since Green did not have effective representation at his 2009 trial, his conviction had to be vacated. Therefore, Totenberg both ordered that the conviction be vacated and that Green be “released from the sentence imposed,” and she ordered the State of Georgia to “take all actions necessary consistent with the holding of this Order.”
The lawyer who stuck with Green through this extended and time-consuming litigation and successfully argued for this relief is Stephen R. Scarborough.