Let me tell you about a criminal jury trial which I presided over a while ago. It is a sad, but interesting, story that may cause you to rethink several notions you now have about cases of this kind. On reflection, the final trial result has bothered me.

You need to know the case has been completed with a guilty verdict fully supported by the evidence and that the judgment has been affirmed on appeal. So you say what is the problem? It sounds like justice has been done. Case over.

It may not be that simple or easy.

I will try to tell you the story of the case in prosaic style, rather than in the formal language of an appellate opinion. This should give you a more useful insight into what troubles me about the result. So here, in an abbreviated form, is the essence of the case.

It began when a fairly young, but grown man met a young girl on the internet, and they began a friendly relationship that resulted in this criminal case.

It turns out that this grown young man believed this girl was at least 18 years of age. He became enthralled with her romantic internet conversations that were solicitous and enticing to him. He decided to seek her out and meet her in person. She never told him her true age or that she was underage and legally incapable of giving her consent to the sexual encounter that followed when they got together. He visited her and prevailed upon her to get in his car and go to the location of a filling station.

Afterward, he rode her around to a nearby school yard where she said he raped her. Her testimony was that he pushed her to the ground and held her there while he took off her pants and proceeded to have sex with her. She said he penetrated her against her will and ejaculated inside her, leaving telltale DNA evidence that proved the sperm came from him.

After completing the intercourse, she redressed, and he drove her back to her home. He argued that she consented to their sex act, and he thought she was old enough to do so. The evidence overwhelmingly proved their sexual encounter with only the age of the female and whether it was forcible or not in controversy. On the victim's subsequent complaint, the male was indicted and tried for forcible rape and for other offenses. He was found not guilty of forcible rape, but he was convicted of aggravated child molestation, enticing a child for indecent purposes and child molestation.

The defendant argued on appeal that I improperly instructed the jury that the victim's age was not an element of the charged offenses and that I incorrectly refused his request for a jury instruction on mistake of fact about the victim's age. His point of view is that the victim enticed him, misled him about her age and lied about there being force in their sexual encounter. He argues that he never intended to have sex with an underage girl.

Before the case was submitted to the jury, the defendant's trial counsel, in open court and outside the presence of the jury, begged the defendant to take a plea deal offered by the state. It was a sentence of 20 years with 10 to serve and 10 on probation. The defendant refused the offer and said he wanted the jury to decide the case, because he was innocent.

The jury got the case, and this is where the defendant's real trouble began. He had been convicted previously in another state of forcible rape. So the defendant ended up in this case with a mandatory sentence of life in prison with no possibility of parole. That is the final result in the case, and that is the source of my lingering concerns.

You may say, 'Why is that a problem? The man is guilty and deserves the punishment he got.” After all, not too many years ago, say in the 1960s, he could have received the death penalty for forcible rape. But not anymore, since it was abolished in 1973.

For forcible rape all that is true, but has justice been done in this case? I recognize the Georgia Supreme Court held in 1998 that a sentence of life without parole does not impinge on the authority of the State Board of Pardons and Paroles to grant parole but simply renders the defendant ineligible for parole. What does impinge mean? Webster's Dictionary does not offer much support for the conclusion that impinge means our statute does not encroach upon the constitutional power of the parole board to grant or deny paroles.

Historically, the power to grant pardons and paroles has rested with the executive branch of government. It still does, in the federal scheme of things and in many other states. We changed it in Georgia largely because of accusations made against a former governor, for selling pardons late in his term of office. A constitutional amendment established an independent constitutional parole board, and that power still exists in Georgia today.

Can you rationally conclude that certain criminal defendants are ineligible for our constitutional parole board to consider without encroaching on the right and power of our parole board, is good? That is a difficult decision to justify and it haunts me with doubts. If any criminal sentence can be removed from the constitutional parole board's consideration by statute, the Legislature can render the parole board meaningless. I need a more persuasive place to stand on this issue without this troubling question.

Beyond the constitutional implications of this issue, there are lingering doubts in my mind of the wisdom of removing all hope of such a criminal defendant to become rehabilitated and to earn the opportunity to be free of confinement. The results also carry other heavy social baggage. It is very expensive for the public to pay for the lifetime care of an increasing number of criminal defendants. It also can inspire increasing dangers to the safety of prison officials and guards who we expect to handle these lifetime prisoners. Think about that.

Perhaps, we should simply trust our constitutional parole board to decide if and when a life prisoner gets another chance. Some will and some may not, but maybe we should let the parole board decide and also use the death penalty in appropriate cases. What do you think? If you favor life without possibility of parole, why not let Georgia voters decide by voting for or against a constitutional amendment that gives them an opportunity to decide what is best for our state.

Judge G. Conley Ingram has served on the Cobb Juvenile Court, the Cobb Superior Court and the Supreme Court of Georgia, where he was a justice from 1973 to 1977. He was a partner at the Atlanta law firm of Alston & Bird from 1977 to 1998, when he was appointed a senior judge, where he is presently serving in Cobb Superior Court.