Court overturned Columbus man’s conviction for molesting 15-year-old — then he walked free
Despite the quandary posed by an appeals court’s overturning his 2010 child molestation conviction because a police recording used at his trial was inadmissible, Bartholomew London chose to plead guilty Monday, right before he was to be retried on the same charges.
Eight years ago, he was sentenced to 40 years in prison after a jury convicted him of aggravated child molestation and of child molestation. The victim testified 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.
A detective had the girl call London to see if he’d make incriminating statements, and recorded the conversation that was played for the jury at his trial. The Georgia Court of Appeals reversed London’s conviction because the detective didn’t get a Superior Court judge’s order to record and divulge a call involving a minor, as Georgia law requires.
But an appeals court judge in a concurring opinion said prosecutors could have used the call as evidence, had they only called the detective to testify to what London said, rather than play the recording in court.
That left attorneys last week debating whether the evidence was admissible during London’s retrial, with defense attorney William Kendrick arguing it was not, under any circumstances, and prosecutor Veronica Hansis arguing it was, if she only called the detective to testify to it.
After hearing their arguments, Judge Ben Land decided Monday morning that based solely on the law as written, the evidence was inadmissible, because the detective never got the court order required for it.
Attorneys afterward proceeded to pick a jury for London’s new trial, before he decided that afternoon to plead guilty.
His charge of aggravated child molestation was reduced to child molestation, and he pleaded guilty to three counts of child molestation, including one the jury found him not guilty of during his trial.
Judge Land sentenced him to 20 years in prison with eight to serve and the rest on probation. With credit for the time London already has served, he was released from the jail on Tuesday.
The victim, now 24 with two children of her own, was too emotional to speak at London’s sentencing Monday, attorneys said. Her mother told the court she forgave London and hoped she and her daughter could put the ordeal behind them and get on with their lives.
Hansis told Land the victim recently alleged London molested her on other occasions from the time she was 11 until she was 15, accusations that were not addressed at his trial, which delved only into the allegations from August through September 2009.
The call
When police had the girl call London in October 2009, she told him 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.
The appeals court decision reversing London’s conviction cited an excerpt in which London allegedly 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.”
Though the court majority in 2015 determined the call was inadmissible evidence, one judge qualified that to say that 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.
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, Judge Michael Boggs noted the law 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.
London was 37 when he was convicted and sent to prison. Today he’s 46.
This story was originally published September 18, 2018 at 4:39 PM.