Of Counsel

Legal Notes on Georgia and The South

Online Solicitation Conviction Reversed

Posted by Maggie on September 26, 2007

Still haven’t gotten to that long list of Supreme Court opinions released the other day. But the AJC reports on one today, Patel v. State. Patel was convicted of Online Solicitation and Obscene Internet Contact under the Computer Pornography and Child Exploitation Prevention Act, O.C.G.A. section 16-12-100.2. The Court holds that the Judge improperly commented on venue. During opening, the defense tried to argue that venue was improper. The Judge stated, “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.” As venue is a finding of fact for the jury, the Judge improperly commented on evidence that wasn’t established. Worse, the Judge later, trying to “cure” the jury, said he didn’t remember saying such a thing, but that if he did it wasn’t taking away the prosecutor’s burden of establishing venue. Too little, too late, and no mistrial. Fortunately the rule is that no curative instruction can resolve such a statement by a Judge, and I think it’s a good one. The influence of a Judge goes a long way with a jury.

There are other venue issues the Court doesn’t consider heavily, which seems a shame. These internet cases bring up important venue issues that should be addressed rather than shrugged off.

The DA says he will retry.

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