STORY: "The digital courtroom' by reporter Victoria McKenzie, published by Crime Report on September 28, 2016. (Victoria Mckenzie is a freelance writer based in New York and Medellín.)
GIST: "In 2003, a special study committee formed by the Massachusetts Supreme Judicial Court to evaluate the timeliness and accuracy of trial transcripts, found that transcript delays represented the “single greatest impediment to the progress of cases appealed from the Massachusetts trial courts.” 13 years and several rounds of court reforms later, “not much” has changed, according to Murray Kohn, Senior Staff Counsel for the Committee for Public Counsel Services in Massachusetts. “I just got done talking to one guy who waited two years for a transcript—in prison,” Kohn told The Crime Report. Kohn, an expert in transcript production and record assembly, says delays in transcripts produced by an increasingly burdened group of Massachusetts court reporters—who now only number 38, and cover 75 courtrooms in the Superior Courts—have contributed to the problem. “Once you’ve got missing or incomplete transcripts, you might as well kiss your appeal goodbye.” An equally troubling issue: The growing number of transcripts prepared from digital recordings have major gaps in the record. Sometimes, they are lost entirely, and efforts to reconstruct the record cause more untoward delays, which usually wind up favoring the prosecution. “Once you’ve got missing or incomplete transcripts, you might as well kiss your appeal goodbye,” says Kohn. According to Kohn’s calculations, roughly one-third of indigent appellants in the state of Massachusetts are spending unnecessary time in prison, because their cases are prejudiced by delays related to to transcript problems.........Does digital save money? Most states have reported significant savings by employing digital recording in the courts. In 2012, Utah claimed to have saved over $1.3 million by eliminating 50 court reporter positions and switching to audio recording in 2009. In 2011, the California Legislative Office estimated that the state could save $113 million annually by switching to audio recording (a figure that the National Court Reporters’ Association vehemently disputed).But calculating the true cost of one system versus the other over time is more complicated than comparing court reporter salaries to electronic hardware, as court administrators are prone to doing. A 2015 audit of Australia’s digital court systems shows that savings were only half of what the Department of Justice and Attorney General had estimated. With audio recordings, a transcript must still be produced and paid for. Add to that the hidden costs of mistakes and delays, and the comparison is more uncertain: What does it cost for states to house prisoners that are waiting for their trial transcripts for months, years? What does it cost to reconstruct a transcript when a recording fails? While industry professionals have been most vocal in the debate about how the record should be made, the extinction of a traditional profession probably matters less than the threat to an individual’s right to appeal. Neither the traditional stenographer nor unmanned technology has solved the systematic problems in Massachusetts courts described over a decade ago in the Green Report. “There’s the psychological affect— the uncertainty of not knowing what’s going on with your case, not knowing what’s going on with the system, not being able to understand what’s taking so long.” said Kohn. “And most importantly, if [the client] wins the appeal, he’s spent time in jail that he shouldn’t have spent. Because his conviction was overturned.” Besides losing time in prison, a defendant can also find his case prejudiced by a delay: If retried, exculpatory evidence might have disappeared, witnessed died, and leads gone cold. Kohn says at least five attorneys contact him each week seeking help with dire transcript problems— an average of 240 a year. Assuming these are separate cases, that’s around one third of the annual indigent caseload of Massachusetts’ Committee for Public Counsel Services (CPCS). According to Kohn, the majority of attorneys he sees still deal with transcript delays of over 120 days. William Smith, a Massachusetts public defender who largely handles murder cases, says that the 120-day deadline for transcripts, which was adopted in 2009, “has no teeth in it whatsoever.” Smith, who started a listserv for criminal appellate lawyers, says that a two-year wait for transcripts from court reporters is not uncommon. Based on the comments in his forum, a large percentage of cases are stalled over four months due only to transcript production. Delays aside, both attorneys say that transcripts produced by a court reporter are superior to those made from audio recordings. To appeal, you must prove that an error was made during the trial.........Sidebars get lost: The problem caused by missing “sidebar” conversations cannot be understated. “If the attorneys and the judge have to discuss a legal matter away from the hearing of the jury, they go to the side of the bench away from the jury and they whisper,” said Kohn. “This is one of the most important events in an appellate process, because this is where the judge’s error is going to occur…and they don’t get recorded. And so [attorneys] get transcripts with these blanks in them.” David Skeels, an attorney in the CPCS Appeals Unit, added that these sidebar discussions are “often of crucial importance on appeal because objections to evidence are often made outside the jury’s presence—the judge will often want to know outside the jury’s presence what the evidence would be if admitted.” Efforts to reconstruct the record cause even more delay, and are usually biased toward the prosecution because both the Commonwealth of Massachussetts and the judge both have an interest in “cleaning up” the record to produce an error-free trial. “The Commonwealth simply doesn’t respond; it drags its feet,” said Kohn. “You send them an affidavit saying ‘here’s what we think happened in the missing portions, please let me know whether you’ll stipulate to that.’ Nothing. They don’t get back to you. They don’t bother. “They have no interest in doing it. They’ve gotten their conviction, and any cooperation they provide is only going to move the appeal forward, which they don’t have an interest in doing.” According to Fred Lederer, director of the Center for Legal and Court Technology, created by the Marshall-Wythe Law School at the College of William & Mary and the National Center for State Courts. “For The Record’s latest system has “an exemplary technical solution for sidebars.” Now, Lederer explained, a judge will be able to mute the system’s amplification without turning off the recording. But because the system is still so new, transcripts from these recordings have yet to reach the Massachusetts appellate courts. "Too Hot to Handle: Massachusetts is not the only state burdened with transcript problems, from delays to missing records caused by both court reporters and recording failures. In Washington state, for example, a bank robbery case was delayed four years due to transcript issues. Similar problems have surfaced in California, and in Iowa. In New York, missing transcripts might not be the primary cause for delays on appeal, but many public defenders attest to the glacial progress of record requests as their clients wait in prison. According to Jed Tifft, a paralegal at Appellate Advocates, at least 40 percent of the 50-70 transcript requests he handles at any given time take over three months, and several take over six months. Additionally, the agency hires at least one full-time ‘screener’ to flag the transcripts for missing pages, a not uncommon occurrence that can have disastrous consequences. While attorneys may file a legal motion to produce the transcripts, it usually comes down to a personal “nudging” campaign, requiring frequent calls to the court reporter. Throughout the country, two things are clear: First, as important as the official record is to the justice system, there is no government or independent entity tracking the states-wide problem of delivering accurate and timely transcripts; nor has there been adequate follow-up evaluations of the new systems. Second, due to sensitive labor relations, the issue is simply too hot to touch. All three indigent appellate agencies in New York, who are dependent on the goodwill of court reporters to provide the best possible representation they can for their clients, declined to participate in this story. The National Center for State Courts, which authored Making the Record: Utilizing Electronic Digital Recording in 2013, also declined comment—explaining that record production was simply “too political.”"
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