Justices cite prejudicial comment from judge during opening statement

The Georgia Supreme Court has overturned the conviction of a Canton man for sending explicit photos and making sexual advances online to a girl he thought was 13 who was actually an undercover Peachtree City police officer.

Mahesh Patel was convicted by a jury in November for two counts of violating the computer pornography and child exploitation act and one count of obscene internet contact. But in a unanimous decision this week, the Supreme Court reversed the conviction, holding that presiding Superior Court Judge Paschal A. English Jr. erred in a comment made in front of the jury.

The comment from English came during the opening statement given by Patel’s attorney, Paul Liston. Liston was arguing that it was not legal for Patel to be tried in Fayette County when the activity occurred on one of his computers in Canton.

According to the transcript quoted in the court’s opinion, English replied: “That’s incorrect. That is not a defense to this case. Venue is proper in Fayette County or we wouldn’t be here right now.”

English ultimately rebuffed Liston’s motion for a mistrial and instead issued instructions to the jury in an attempt to remedy the situation.

The court noted in its opinion the actual instructions that English gave to the jury, according to the transcript of the case, which were as follows:

Trial court: Let me clear up one thing right here. When I just told you the State is bound to prove that venue is in Fayette County beyond a reasonable doubt and that venue could be established by showing beyond a reasonable doubt that the transmission -- any of the transmission[s] took place in Fayette County, do you all understand that?

(Jurors nod heads.)

Trial court: Anybody doesn't understand that?

(No response.)

Trial court: If I stated to you this morning that venue was proper and that the State would not have to prove -- I don't remember saying that. I don't want you to think that I made a statement indicating that the State was relieved of proving one of the things they're required to prove.

Do any of you believe that my statement earlier this morning would indicate to you that the State is not required to prove venue beyond a reasonable doubt? Because if you do, I need to know.

(No response.)

Trial court: Okay. Thank you very much, ladies and gentlemen.

The above passage was taken directly from the reference to the transcript contained in the Supreme Court’s opinion.

The court said in its opinion that English’s instructions to the jury could not nullify the error of the violation of Georgia code section 17-8-57, which prohibits judges in criminal cases from expressing or intimating “his opinion as to what has or has not been proved or as to the guilt of the accused.” This limit is in place during the progress of the trial and during the charging phase that occurs immediately before the jury begins deliberation, in which the judge outlines the various laws that apply to the case for the jury’s benefit.

Prosecutors argued that the explicit messages and photos were received by the undercover officer in Fayette County, thus making venue proper in the case.

During the trial Patel defended his conduct as “adult role playing,” testifying that he had no intention of meeting up with the girl. But prosecutor Randy Coggin noted that one transcript of Patel’s conversation with the officer showed that Patel asked the girl why she was home at 9:45 a.m. during school hours, which indicates he may have thought she was 13.

Liston noted that the online conversation took place in an internet chat room that features sexually explicit content and is intended for adults only.