Inadmissible recording overturns alleged molester’s conviction — so can it be used again?

The evidence that helped get Bartholomew London convicted of sexually assaulting a 15-year-old girl is the evidence that got his conviction reversed when an appeals court ruled it was inadmissible at his trial.

So when he is retried on the same charges next week, prosecutors can’t use that evidence.

Or can they?

Conflicting opinions on that posed a quandary Wednesday in a pre-trial hearing before Muscogee Superior Court Judge Ben Land.

Land did not preside at London’s trial in 2010, when London was sentenced to 40 years in prison after a jury convicted him of aggravated child molestation and of child molestation. The victim said that during August and September 2009, London twice forced her to submit to oral sex and once put his finger inside her, removing it when she said it hurt.

When she reported this to police, a detective had her call London, to see whether he would incriminate himself. Investigators had her put the call on speaker phone, so they could tape it and have it transcribed.

The girl told London she was about to have a doctor’s exam, and needed to know whether the doctor would “find anything” because of London’s intimate contact.

A Georgia Court of Appeals decision reversing London’s conviction cited an excerpt in which London is alleged to have told the girl:

“Whenever I did stick my finger inside you, it hurt. You understand me? There ain’t gonna’ be nothing. … You wash. Excuse me. You wash every day. Every day. So, it won’t wash with soap every day, and your finger, finger went inside of your c--chie, too, when you wash sometimes. So, don’t worry about none of that. You good. Excuse me. I miss you. I know it, I miss you.”

The appeals court ruled the jury should not have heard this recording during London’s trial, because Georgia law requires police to get a Superior Court judge’s order to record a call involving a child and divulge the conversation. The detective did not do that.

The court overturned the conviction because the recording was crucial evidence at London’s trial.

Though the court majority determined the call was inadmissible evidence, one judge qualified that in a concurring opinion.

He said playing the recording was an error, but soliciting testimony from the detective who heard the phone call would not have been: The law rules out only the actual recording or its transcript.

A concurring opinion is not binding: The majority rules. But the concurrence was written by then-Georgia Court of Appeals Judge Michael Boggs, now Justice Michael Boggs of the Georgia Supreme Court, so Land had to weigh it carefully.

London’s defense attorney, William Kendrick, argued the majority’s opinion made the phone call evidence inadmissible altogether, and Boggs’ concurring opinion didn’t change that: “It’s written separately for a reason,” he said of the concurrence. “It’s not the majority opinion.”

Assistant District Attorney Veronica Hansis argued she could call the detective to the stand and ask what the officer heard during the call. Both the victim and her mother consented to making and recording the call, and the detective merely “intercepted” it, which was not illegal, Hansis said: “Nothing prevents the interception.”

Georgia law prohibits third parties from “intentionally and secretly” intercepting and recording others’ calls, but one of the parties to the conversation may record it, and the law has an exception for “an interception where one of the parties to the communication has given prior consent,” according to the appeals court ruling.

When the call involves someone younger than 18, “consent for the recording or divulging of the conversations … conducted by telephone or electronic communication shall be given only by order of a judge of a superior court upon written application,” the court wrote.

The court majority concluded: “Because the state failed … to obtain a court order giving consent for the recording, and there is a reasonable probability that the improperly admitted evidence contributed to the jury’s verdict, we reverse. We note, however, that because the evidence was sufficient to sustain his convictions, London may be retried.”

In his concurrence, Boggs noted the law also says nothing “shall prohibit a person from intercepting a wire, oral, or electronic communication where one of the parties to the communication has given prior consent,” and both the child and her mother consented to recording the call.

“Had the officers desired to provide testimony regarding what they overheard, they would not have been prohibited from doing so… The court order requirement applies only to the recording and the divulging of the recording itself,” Boggs wrote.

Hansis used Boggs’ interpretation to argue she could have the detective testify to what police overheard when the girl called London.

But Kendrick asked: What if the detective’s recollection is in error? The officer last testified eight years ago. “People can’t remember stuff from last week, yesterday,” the attorney said.

Were the detective’s account inaccurate, the defense would be forced to cite the recording or transcript to counter the officer’s testimony, Kendrick said: That would compel the defendant to put the call into evidence to contradict the detective, and the appeals court has ruled the call is inadmissible.

It seemed to be a Catch 22, a hopeless dilemma caused by mutually conflicting circumstances. Weighing the truth of any testimony regarding the evidence would require the evidence that was inadmissible.

“It’s an impossible circle,” Kendrick said.

He argued also that Boggs’ opinion was based on what prosecutors could have done during London’s 2010 trial, not what they can do now. Boggs’ only point was that “if you had done it this way back then, you would have been OK,” Kendrick said.

Land told the attorneys he would have to do more research before deciding whether Hansis can use the detective’s testimony regarding the call. Though Boggs’ opinion is not binding, “it’s all I have,” he said.

Jury selection for London’s second trial is to begin Monday morning.

Hansis had another issue regarding the evidence: The victim, now 24 with two children, now alleges London began molesting her when she was 11, and his conduct gradually escalated until he tried to have intercourse with her, Hansis said.

The prosecutor said the victim just divulged this late last week, and Hansis notified Kendrick on Monday that the woman’s testimony now may include other incidents that did not come up during London’s first trial.

The additional testimony should be admissible because it’s “inextricably intertwined” with London’s other allegations, she said.

Kendrick objected that he was given too short a notice to prepare London’s defense for that, but Land said the testimony would be relevant and admissible, and he did not want to delay the trial: “This case needs to be tried,” he said.

London was 37 when he was convicted and sent to prison. Today he’s 46.