MARIETTA — The state Court of Appeals on Thursday affirmed throwing out the first criminal indictment against ex-Cobb EMC chief executive Dwight Brown because the court where the indictment was read was not open to the general public.

Brown, now 66, was later indicted a second time, and the court will soon take up the defense’s appeal on that second indictment. Individuals can only be indicted twice on the same charges.

Former Gov. Roy Barnes, who represents Brown, could not say Friday whether Brown will ever stand trial on multiple criminal charges of theft, racketeering, making false statements, conspiracy and other charges stemming from his tenure at Cobb EMC.

“The problem the district attorney is having is, Dwight Brown hasn’t committed a crime, and it’s difficult to draft an indictment that shows someone has committed a crime when there’s been no crime committed,” Barnes said. “All these people who say he’s guilty have not looked at the facts nor the law. If Dwight Brown is guilty, every businessman in this nation is at risk of being indicted by a zealous prosecutor. … Everything he did was disclosed, and approved by advice of counsel. … You cannot take away somebody’s life and liberty just because you’re mad at them.”

District Attorney Pat Head did not immediately return calls for comment.

Presiding Judge Charles B. Mikell, writing for the appeals-court majority in tossing the first indictment, said: “Georgia case law has long held that an indictment must be returned in open court to be valid. This requirement ‘must be complied with in every case.’”

Five judges were in the majority, including Presiding Judge Ann Elizabeth Barnes, and Judges Yvette Miller, Harris Adams and Stephen Dillard. The case went to a seven-judge panel of the appeals court, which happens when the usual three-judge panel does not agree on a case.

A Cobb grand jury returned the first indictment against Brown on Jan. 6, 2011, the last day of the grand jury’s term, during which the jurors also read their civil presentments. The judge overseeing that grand jury asked that the grand jury make its indictments and presentments in the new Cobb Superior Courthouse, which was not to officially open until the following week.

The only way to access the new courthouse was via the catwalk connecting the old and new courthouses, and two Sheriff’s deputies was stationed at that catwalk to restrict access to only those who had specific business in the courtroom where the grand jurors were to be.

In March 2011, Cobb Superior Court Judge Robert E. Flournoy III agreed with a defense motion to quash, or toss, the indictment, and the state then appealed.

The appellate court judges heard oral arguments in the case in October.

Judge Stephen Dillard wrote in his concurring opinion that “access to the new courthouse was limited and not available to the general public in the absence of having special knowledge and uttering the right ‘magic’ words, which were not required to observe proceedings at the old courthouse.”

On July 8, 2011, a new grand jury returned a second indictment against Brown, charging him with all of the same crimes as in the January indictment, but adding four more. The defense is now challenging that indictment because several of the grand jurors were also members of Cobb EMC. Cobb’s Judge Flournoy upheld this indictment, but Brown’s attorneys have appealed to the court of appeals.

Barnes said he expects oral arguments on the second indictment within 90 days. A decision could come by fall.