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Sunday, April 22, 2007

Law - More on unfinished or lost transcripts, and court transcripts in general

"Missing Transcript in Mich. Murder Trial Highlights Controversy Over Handling Vital Records" was the headline to a story in the National Law Journal this week by Tresa Baldas. Some quotes:

A missing court transcript of a Michigan murder trial has highlighted a frequent problem encountered by the courts: What happens when transcripts, or crucial portions of them, go missing?

That's at the heart of a recent controversy brewing in Detroit, where convicted murderer Elroy Jones is seeking an appeal.

But there's a problem: The only transcript of his murder trial was recently stolen by someone who broke into a court reporter's vehicle in a drugstore parking lot. The thief took her briefcase, which contained tapes from the defendant's 2006 murder trial.

"We don't have the real details that exist here. It's just impossible to pursue the [appeal]," said the defendant's appellate lawyer, Craig Tank of Tank & Jelalian in Macomb Township, Mich., who is seeking to have the conviction reversed. People v. Jones, No. 06-007202 (Wayne Co., Mich., Cir. Ct.).

According to Tank, the stolen tapes contained 80 percent of the trial transcripts. All that's left on record, he said, is the prosecutor's opening argument. Tank filed motions last week in the appeals court to have the case remanded back to the lower court for retrial.

"What has taken place here with the missing transcripts is that [defendant] Elroy Jones has been deprived of his right to seek an appeal," said Tank, who disputed claims that the robbery was a setup. "This was simply a random criminal act." * * *

Under federal and state laws, lawyers note, defendants seeking appeals can raise due process challenges when transcripts, exhibits or other records are missing because federal due process guarantees the right to receive a record of trial to permit an effective review.

If the record is gone, or crucial information is missing, convictions can be thrown out, arrest warrants can be deemed illegal and crucial evidence can be suppressed.

That's what happened in a California robbery case in December, when a court suppressed all evidence seized under an arrest warrant because the original copy of the search warrant affidavit was missing from the court records. The fact that the documents were missing was discovered on appeal when the defendant tried to challenge the validity of the warrant. People v. Galland, 146 Cal. App. 4th 277 (2006). * * *

[M]issing court documents were the subject of a recent training seminar in California, at which appellate lawyers with the First District Appellate Project discussed hurdles defendants must overcome when seeking reversals due to missing or incomplete records. One obstacle is proving that the trial can't be reconstructed without the transcript; the other is proving that defendants were actually prejudiced.

"In most state court systems, the rule is: If someone is completely deprived of a transcript, then he has been deprived of his right to an appeal. And absent the right to an appeal, he is entitled to a retrial," said Milton Hirsch, who specializes in criminal defense and appellate litigation and is an adjunct professor at the University of Miami School of Law.

A Nov. 25, 2005 ILB entry is titled "Unfinished Transcripts May Nullify Convictions in Colorado." A follow-up entry appeared March 3, 2006.

An April 3, 2007 ILB entry asks the question: "Can a digital CD take the place of a trial transcript? Can a "transcriptionist" take the place of a court reporter?" In a Florida Petition for Writ of Mandamus to the Circuit Courts for Polk and Sarasota Counties, "seeking relief to address certain electronic court recording and transcription issues," the petitioner addressed "the shift away from using trained professional court reporters in all courtroom proceedings to the use of less costly digital recording," and pointed to errors such as "the transcript purported to include an appearance by an attorney on behalf of Ingram when no such attorney existed." At least one judge strongly agreed, taking the opportunity "to explain that a digital recording is not a transcript and that any transcript presented to this court in its review capacity must be prepared by an official court reporter."

An issue currently pending before at least one state high court is whether discussions before the bench between the trial judge and attorneys, recorded and apparently transcribed, are properly part of the record. A proposed Minn. Court Rule would appear to cover this issue. It begins:

RULE XXX. Access to Recordings. This rule governs access to recordings of testimony in the district court:

(a) General. Recordings of testimony in the district court, including without limitation those used as a back-up to a stenographically recorded proceeding or as the electronic recording, are intended to assist in the preparation of a transcript. The transcript, and not the recording, is the official record of the proceedings. Recordings of testimony in the district court may only be used as authorized in this or other applicable rules or orders promulgated by the Supreme Court.

(b) Off the Record Remarks. Any spoken words in the courtroom that are not a part of a proceeding, hearing or trial of a specific case are not intended to be recorded. Recordings of such words may not be listened to or used in any way other than by authorized operators of the recording equipment to orient themselves on recording content.

Posted by Marcia Oddi on April 22, 2007 12:18 PM
Posted to Courts in general