The Path NOT Cleared
B.J. Bernstein fights mandatory minimums and keeps clients prayed up—and that has made all the difference
Published in 2010 Georgia Super Lawyers magazine on February 25, 2010
Genarlow Wilson devoured the books but wasn’t allowed to keep them. He was in prison and there were rules. His librarian, B.J. Bernstein, who was also his lawyer, kept sending titles to him, and once he was finished reading them he would donate the books to the prison library.
She didn’t give him just any books; she gave him books about faith and hope and crisis, and books that required imagination: The Purpose-Driven Life and Way of the Peaceful Warrior and the Harry Potter series. It was Bernstein’s way of never letting the despair settle too deeply into Wilson’s soul after each courtroom or legislative setback.
The earnest readiness she shows clients outside the courtroom is the essence of Bernstein’s law practice. Wilson marvels at this short Jewish woman who never tired of the fight against mandatory minimum sentencing—a fight that others considered unwinnable.
“She gave out certain vibes that made me look at the good going on in the world, not just the bad,” says Wilson. “She kept me prayed up.”
Wilson, a high school honors student, received a mandatory 10-year sentence for having consensual oral sex with a 15-year-old girl when he was 17 years old. It was a felony. If he’d had intercourse with the girl it would have been a misdemeanor. If he’d accepted a plea deal placing him on a sex offenders list, he would have been spared a long sentence. Instead, year after year, he sat in prison. The law’s judgment was bewildering to Wilson. The books, and Bernstein, were refuge.
“I would read a book, and she would tell me to read it again to make sure I got the purpose and understood,” says Wilson. “It allowed me to be at peace and kept me from all the frustration and anger.”
The law’s judgment was bewildering to Bernstein, too, and she knocked on the doors of Georgia state legislators, made a lot of noise in the media and helped get the law changed in 2006. Wilson’s offense was now a misdemeanor. But the Legislature refused to make the law retroactive. Wilson stayed in prison.
On the days Wilson was not prayed up, Bernstein stayed right there in the valley with her client. She walked Wilson up each hill, then accompanied him back to the bottom with each setback.
Then, one day, she walked him out of prison.
On Oct. 26, 2007, Wilson was released after the Georgia Supreme Court voted, 4-3, in support of a Monroe County judges’ order of habeas relief, that his incarceration was cruel and unusual punishment. It was a landmark case.
“If you just look at her, you would overlook her, you wouldn’t know her like I knew her,” says Wilson, who is now 23 and a student at Morehouse College in Atlanta. “She is very tough, she is very aggressive. You meet her and say, ‘This is a sweet person,’ and then you see her in the courthouse fighting for you and how hard she goes at it for you.”
Bernstein’s approach, and her success, has brought national awards, including the 2009 John Jay Justice Award, the 2009 YWCA Salute to Women of Achievement Award, and many others.
When Bernstein sits next to her clients in court, she has delved into their backgrounds to find out why they are where they are. “Background is big,” Bernstein says. “I like to know where they’re coming from, who they are. I think I am very good at seeing the long term, the big picture. Social worker? I’m some of that. I think attorneys not only need the law degree, they need the psychology degree, the social work degree. I wish I had them all.”
Bernstein, 46, has her own law practice, The Bernstein Firm, in midtown Atlanta. Her office includes a wide, panoramic view of Peachtree Street. That’s Bernstein’s view, too: wide and panoramic.
“I don’t like prejudgment of people,” Bernstein says. “It’s why I don’t like mandatory minimums. I don’t understand what is wrong with presenting a picture that is happening with each individual person [so they can be] judged on it.
“I don’t have a problem with judgment and punishment coming in certain instances. What I don’t like is across-the-board [sentencing] when we put people in categories and they are all alike. Because they are not all alike.”
Bernstein knows what it’s like to be categorized. The number of television networks for which she’s worked as a legal analyst (CNN, Fox, MSNBC), and the shows she’s appeared on to discuss the Wilson case (The Today Show, Good Morning America), have led to charges that she’s a publicity hound.
“There are a lot of accusations that I was doing this to be famous and being in the media and that I wasn’t taking care of my client,” Bernstein says about the public rancor over the Wilson case. “When it reached its most public point, before we were at the Supreme Court for the last time, I just about became a hermit because everywhere I went someone had an opinion and wanted to tell me. I was very self-conscious about people recognizing me.
“The thing that was different about this case was we were seeking to change the statute. That’s political, which means you have to go to the media,” Bernstein says. “It wasn’t to affect the courts, it was to affect the Legislature. I get a lot of calls about ‘Can you get my case on the news?’ and I tell them, ‘First, you may not want to, and second, you have to work within the confines of the court.’”
“I have talked substantively with her and she has a comprehensive, thorough understanding of the law; it is not just rhetoric,” says Max Hirsh, a Decatur-based criminal defense attorney with clients around metro Atlanta. “The best demonstration of that is the Genarlow Wilson case.
“Lawyers with less resolve usually don’t think the way she does—or [would] do what she did—in that case. She was dedicated to getting the right result and she had to get the law changed to do it. That’s pretty heavy-duty stuff.”
Hirsh was the chief of the Crimes Against Children Unit of the DeKalb County District Attorney’s office, under District Attorney Gwendolyn Keyes Fleming. It’s a nationally recognized unit that vigorously investigates and prosecutes alleged offenders, so when Bernstein was up against Hirsh in a case several years ago, she was up against a well-trained opponent.
Her client, in his late 40s, faced substantial charges in a sex case. Bernstein used her expertise with the law, and her understanding of her client’s background, to fight the charges.
“There were pretty severe allegations and she brought to light mitigating evidence about his personal life and she had original and in-depth legal research,” Hirsh says. “I was used to seeing defense motions that looked alike, but she had original, well-thought-out motions and defenses prepared and ready to go to trial. Because of that, her client, under the circumstances, got the best possible result he could have received.”
John Goger, a judge in the Fulton County Superior Court, says he has seen Bernstein conduct damage control for a client in his court and it takes the same skill as winning an acquittal.
“Guilty clients need lawyers just like not-guilty clients,” Goger says. “That client who is guilty of a crime, or is likely to be convicted of a crime, needs a lawyer that is going to work out the best disposition. Good lawyers take a very bad situation and get the best possible result, and that’s what she does for her clients.”
Then there are the complete reversals. In 2008, Vishal Patel was convicted of vehicular homicide in Fulton County and received a 20-year sentence. He hired Bernstein, who got a new trial and won an acquittal in January 2009.
That particular trial was just one of many that wasn’t splashed all over television and in newspapers and on Web sites. She didn’t need it to be.
Bernstein grew up in Columbia, S.C., earned an undergraduate degree in history in three years from Emory University in 1984, and her law degree from the University of Georgia in 1987. She has practiced law for 21 years and has come to understand the processes of change in the legal system.
Most cases work their way down a beaten path. Other cases, those that often turn out to be extraordinary, are like hacking a path through a dense jungle that most people don’t think can be traversed. The Wilson case is an example of the latter. So is the Brian Nichols case.
The defense of Nichols, the infamous Fulton County Courthouse killer, cost more than $1.5 million and was emblematic of a budget crisis for the indigent defense fund in Georgia.
“We are now coming to an age where both the defense and the prosecution, and the judges and society, have to be aware of the cost of being tough on crime,” Bernstein says. “That’s where the crisis is. The funding of indigent defense is going to be a critical issue in this next legislative session, and what’s unfortunate is not that Nichols drained the whole thing. That’s not the issue.” The larger issue, she says, is fairness and restraint.
In college, Bernstein wrote a paper about J.C. Artemus, the man who organized one of the first black labor unions in South Carolina. Artemus’ undertaking was dangerous but it helped lay the foundation for dissent in the South. “What interests me the most are the people who historically are seemingly small but paved the way for the next thing to happen,” Bernstein says. “That kind of mirrors how I practice law.”
So it was fitting, she says, that John Lewis, the civil rights icon and congressman from Georgia, who paved many a path himself, presented her with the John Jay Justice Award in New York last year for her work on the Wilson case. Bernstein was studying at Emory University when Lewis, then an Atlanta city councilman, came to speak to her history class. Instead of preaching civil rights, or talking about the work he’d done at SNCC, or his speech during the March on Washington, he talked about the injustice of Atlanta using city ordinances to arrest homeless people.
“What John Lewis does is he sees a cause and an issue and he works on it,” she says. “Once he got on the Atlanta City Council, he shifted gears and that was a great lesson. There is not one thing that you pick and are known for. Things just come in your path and you are supposed to do something about it.”