Marcus Dixon Appeal Finished; Decision Pending
"Marcus Dixon is sitting in prison for 10 years instead of attending Vanderbilt University because he engaged in sexual intercourse with a 15-year-old classmate." This was attorney David Balser's first sentence in this past Wednesday's opening statement in his appeal to the Georgia Supreme Court on behalf of former Vanderbilt football recruit Marcus Dixon. Balser is an attorney for prominent Atlanta law firm McKenna, Long and Aldridge.
Yesterday, VandySports.com's Mike Rapp received, via FTP, the full video recording of the hearing from the Georgia Supreme Court. The hearing, which began at 2:00 pm Wednesday and lasted 45 minutes, included dozens of pointed — and sometimes combative — questions by several of the justices. The most contentious questions seemed to be directed toward District Attorney Robert McClellan, who originally prosecuted the Dixon case over one year ago in the Floyd County (GA) district in Rome, Georgia.
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The recording was made with a single camera, which was pointed toward the audience and legal teams. The voices of the justices could be heard, but they were not visible in the transcript.
The court is required to issue a decision within six months of the case being filed on the docket, which means the decision must come by mid-May. According to the court clerk, it is likely that a decision would come by late March to early April.
According to McClellan, there are two other pending charges against Dixon, both of misdemeanor sexual conduct that has been positioned by Balser as consistent with juvenile horseplay. According to McClellan, neither approaches the seriousness of the past charges and current conviction against Dixon. McClellan, in an exclusive interview with VandySports.com, said that if Dixon's appeal is upheld, his office would not pursue prosecution of those cases — which would in effect allow Dixon to be released from prison and get on with his life. "Normally, if a person is found not guilty of more a serious crime, we do not pursue the lesser crimes. We will not pursue those other charges if [Dixon's] appeal is upheld," stated McClellan.
Among other things, a reversal by the Georgia Supreme Court would theoretically open the door for Dixon to re-apply for admission to Vanderbilt University, and be re-recruited by the football program. When contacted by VandySports.com, Vanderbilt Vice Chancellor David Williams would not comment on the case, or what Vanderbilt might do if Dixon's conviction was overturned.
In his appeal to the Georgia Supreme Court, Balser claims that Dixon's sentence constitutes cruel and unusual punishment, since no other Georgia teenager has ever been prosecuted for child molestation under these new laws. According to post-trial interviews on the original case, at least five jurors have stated publicly that they felt Dixon was wrongly convicted and should not serve any jail time for the offense.
Several of those jurors have actively and publicly campaigned for Dixon's conviction to be dismissed, and the apparent loophole in Georgia's Child Protection laws to be changed. Dixon's family and supporters — including several prominent political leaders — participated in a large prayer meeting at an Atlanta church the night before the hearing. Among those present was a politician who was instrumental in getting the child molestation laws passed, who has said the Dixon situation was not the intent of those laws.
Both the prosecution and the defense were alotted 20 minutes to make their case. The normal rules of court protocol are different in a Supreme Court. Among other things, evidence is presented to the court in written form when the case is filed, not during the hearing. Justices may and usually do interrupt the attorneys with questions, and may "cut to the chase" to get specific questions addressed.
During Balser's segment of the hearing, different judges seemed to want different issues addressed and clarified. At one point, Balser was asked about how much leniency the lower court was allowed by law in sentencing. Balser replied that the district attorney did have the option of leniency, but chose to prosecute Dixon under the more serious of the two sentences (child molestation instead of misdemeanor statuatory rape). Balser claims this is inconsistent with Georgia legal precedent, and it left the jury with no choice but to levy the 10-year sentence.
Other justices sought his opinions on what Balser claims are ambiguities between how to apply the laws in this situation. Justices Sears, Huntstein, Pennell and Hines were among those questioning Balser about the the legalities of the two seemingly conflicting laws.
"In determining whether a sentence is cruel and unusual, what you have to do is look at society's view of the conduct at issue here", observed Balser near the end of his 16 minutes before the court. "The 10-year sentence imposed on Marcus Dixon in this case for engaging in non-rape sexual intercourse between an 18-year-old and a 15-and-a half hear old so deviates from society's view of this conduct, and so shocks the conscience, that the court should reverse the decision and find that the punishment as applied on the facts of this case violates the consitutional prohibitions against cruel and unusual punishment."
Before McClellan even reached the podium for his opening statement, one justice began her questioning. "Let me ask you this question before you even get started: Does the state contend that this defendant, if there had there been no injury, could have been charged with and convicted of child molestation?"
"Yes, your honor," replied McClellan. "There is nothing that would have prevented him from being charged with or convicted of child molestation."
"So, any time there is consensual sex between teenagers who fall within the right legal parameters there is the possibility that one or both could be charged with child molestation?"
"Yes, your honor," replied McClellan.
Continued the female justice, "Even if she were 15 and a half, and he were 16 and a half, you could have charged him with child molestation?" "There is absolutely nothing in the child molestation statue that would have restricted the state's rights to charge him with child molestation", replied McClellan.
Continued this justice, "So if a 17 year old is with a 15 and a half year old, or maybe she's two or three days away from turning 16, and they are petting, and the parents come in and find them, he could be charged with child molestation?" "Yes, your honor", said McClellan. The justice pressed further: "What if there is some pressure applied, and there are some bruises, he could receive 10 years?" "Yes, your honor. Under the way the current statute is written, he could."
McClellan spent a good portion of his remarks attempting to support his claim that there was some disagreement between jurors whether the girl was raped. While he admitted that the jury did in fact find Dixon not guilty of rape, he argued that because there was some alleged disagreement between some jurists, in his opinion that opened the ethical door for the prosecution to ask for the harsher punishment. Historically, minors found guilty of consensual sex receive probation without jail time.
Much of McClellan's segment was spent discussing how much leeway the courts had in sentencing Dixon or other people accused of crimes. Two justices seemed to disagree with McClellan's assertion that he had no choice but to prosecute Dixon for child molestation. "Have you ever plea-bargained a case?" retorted one justice, sarcastically. The justices noted that the entire idea of plea bargaining — something McClellan admitted he routinely does — is based on the notion of sentencing discretion.
Dixon, a 3.9 GPA student who reportedly scored more than 1200 on his SAT, was one of then-new Vanderbilt head coach Bobby Johnson's most heralded commitments in his first full recruiting class. News of Dixon's arrest for aggrivated rape — which came just days before he was scheduled to graduate from Pepperell High School in Rome, GA — shocked both the Vanderbilt coaching staff and locals in Rome who had watched Dixon become one of the top student athletes in the state.
The case received national media attention last October, when HBO's Real Sports with Bryant Gumbel aired a controversial in-depth investigative report on Dixon's conviction. Three days after the segment first aired, VandySports.com published an interview with Gumbel that was immediately distributed throughout the entire Rivals.com network — which in part led to an immediate groundswell of media reaction. Over the past four months, FoxNews, CNN, NBC Nightline, ABC, CBS, NPR Radio, The New York Times, People Magazine, The LA Times and countless other print and broadcast media have covered the case and this week's appeal in Atlanta, Georgia.
"Real Sports with Bryant Gumbel" airs regularly on HBO and HBO2. Gumbel's Marcus Dixon story aired several times daily until November 25, 2003.
VandySports.com has published three previous stories on the Dixon case:
Information on the original case can be found at: "Teen's appeal to attack sentencing guidelines - AJC"
There is a web site that has been established by Dixon's family and supporters that offers other details, as well as a method to financially contribute to Dixon's legal defense: HelpMarcus.com