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.
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.
Impact of the 2008 Financial Crisis
Courts first began to experiment with audio recordings in the 1970s (with the exception of Alaska, which never could attract court reporters and began using tape recorders in the 1960s).
The 2008 financial crisis had a significant impact on the use of technology in the courtrooms. Many states—such as Utah, New Hampshire, and New Jersey—increasingly began to rely on recording systems in the face of severe budget shortfalls. By 2010, at least 46 states had begun employing some form of electronic recording.
Meanwhile, the number of full-time official court reporters has dwindled to under 9,000 nationwide. (The vast majority of court reporters, about 24,000, work part-time.) While there is no official information on the number of courtrooms nationwide that have switched to electronic recording, data collected by the American Association for Electronic Reporters and Transcribers (AAERT) shows that 85 percent of U.S. courtrooms have gone digital.
While the recession had courts scrambling to cut costs, states since the 1970s have also been trying to address notorious backlogs in the justice system caused by transcript delays. The Massachusetts Study Committee on Trial Transcripts urged reform because it found that “despite its critical position, the process of trial transcript preparation in Massachusetts does not meet the needs of the court system or its customers.”
Indiana launched an audio recording pilot program in 2012, not to cut costs, according to the state court administration, but to speed up the delivery of transcripts for appeals.
The transition to audio recording across the states has been troubled and contentious, raising the ire of court reporters and provoking a fierce battle between audio technology vendors, transcriptionists and unions.
Lobby groups for court reporters are active on the state and federal levels. The National Court Reporters Association (NCRA) has a Political Action Committee devoted to cultivating relationships on Capitol Hill and electing “friends” of the NCRA to congress. Professional court reporters’ associations in California, Florida and Texas, among others, have successfully lobbied to keep electronic recording out with limited exceptions.
The California group sued the state court administration in a 1995 case that went all the way to the California Supreme Court. (Half of all court reporters work in four states: California, Texas, New York and Illinois.)
But California began laying off court reporters anyway, resulting in many hearings and trials with no record at all, above all affecting poor people in family courts. Several subsequent bills proposing to allow electronic recording when a court reporter is not available have been shot down amid strenuous opposition from court reporter associations and unions.
‘It’s Not the Technology’
A number of factors undermined the use of audio recording technology in Massachusetts: When the administration installed digital recording systems in all but the superior courts, it ignored over a decade of recommendations from the Study Committee, the National Center for State Courts, and the Conference of State Court Administrators. One key recommendation was that courts hire personnel (known as “courtroom monitors”) to operate the recording equipment during trials.
As a result, important sidebar discussions and other testimony critical for appeals were not recorded. Sometimes, says Kohn, the court clerk simply forgot to press the record button.
The result: The appeals process is still burdened with delays from the shrinking number of court reporters in the Superior Courts, as well as with incomplete or missing transcripts from the district and municipal courts.
After the Study Committee on Trial Transcripts Report came out in 2003 (aka the ‘Green Report’), Massachusetts installed a digital recording system (JAVS) to replace legacy four-track cassette recorders in the lower courts. Facing growing complaints over the years, the court administration in 2015 decided once again to update the recording system, this time to include the Superior Courts as well, and awarded the contract to the company For The Record (FTR), a global firm that has offices in Colorado, Australia and the United Kingdom.
Steve Townsend, Vice President of the American Association of Electronic Reporters and Transcribers and former CEO of For he Record, believes criticism of technology is misplaced, saying that “misconceptions about electronic recording are based on a judge’s or attorney’s experience with unmanaged implementations of the technology.”
“It is not about the technology,” he added. “It is all about the management.”
Now, the remaining 38 official court reporters expect to be laid off come January after a “test period” with the new equipment. But the court administration only plans on creating 16 court monitor positions for the state of Massachusetts.
“They know that the JAVS system was inadequate, it wasn’t producing adequate recordings,” said Kohn. “And now they’re hoping that the FTR system will—but without monitors, it’s never going to work.”
Townsend agreed, noting that “courts save a lot each year if they can remove a person from the courtroom and replace that function with an unmonitored recorder. But now that DAR is becoming more commonly used in higher level matters (e.g. jury trials), this really is an unacceptable strategy.”
“The courts may still be saving money, but they are placing an unreasonable burden on the attorneys and the attorneys’ clients by failing to provide an adequate record,” Townsend told The Crime Report.
Even court reporters, facing the elimination of their profession, insist on the need for these monitors– for “someone with a brain” to manage the equipment.
“It doesn’t work by itself,” noted Nancy McCann of the Massachusetts Court Reporters Association (MCRA).
When it comes to producing accurate records for appeal, technology didn’t get a fair shot. Now, the Massachusetts Bar Association is clamoring for the return of court reporters— despite the unresolved, “unconscionable” transcript delays detailed in the Green Report, which found that “Massachusetts ranks among the worst states we found in our review of practices across the nation.”
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.
Left Hand, Right Hand
In Massachusetts, the story that emerges is less one of humans pitted against machines, but of a justice system working against itself—a poor interface between the trial courts and the appeals court.
While it is the trial court’s’ responsibility to preserve the record and to produce transcripts, its first concern is handling new cases as they come in, with little reason to prioritize a case that’s already been “disposed of.” The trial court has no vested interest in timeliness or accuracy of the transcript.
Harry Spence, Court Administrator of the Massachusetts Trial Courts, approved the decision to install FTR systems in all Massachusetts courtrooms, and also oversees the hiring of courtroom monitors. Ultimately, he will make the decision whether to dismiss the remaining court reporters next January.
Spence, who admits he is no expert in digital audio recording technology, touted improvements of the new system, such as the ability to “index” a record as it is being made, and the fact that it is instantly uploaded to a server, cutting out redundant intermediary steps. However, he appeared genuinely surprised to learn that appellate attorneys wanted the missing sidebar conversations.
“I think that there is a lack of understanding of the need to have an absolutely meticulous record in these cases,” said Smith. “It really has made a difference in hundreds and hundreds of cases over the years, no doubt about it.”
The Power of Tradition
One challenge that technology faces in the courts is the highly human-centered, traditional nature of the American legal system, which loathes change. Trials, which are the heart of the process, haven’t changed much in 300 years.
“If Thomas Jefferson were to come back to the modern world, he’d be perfectly comfortable in most Virginia courts,” says Lederer.
Many judges and trial attorneys have a good rapport with court reporters, who have accumulated an intimate knowledge of individual justices, lawyers, and also understand legal terms of art that freelance transcriptionists get wrong. Judges often develop long-standing relationships with their court reporters, who at times seem to acquire the status of personal staff members.
While it varies from state to state, the decision whether or not for a courtroom to go digital can often hinge on this relationship, says Lederer, who provides technical consulting to courtrooms across the country.
A 2009 policy paper issued by the Conference of State Court Administrators recommended the use of audio technology, but recognized that it would require a “significant cultural change,” warning that “the shift to digital recording in courtrooms can cause anxiety among judges, court reporters, staff, and attorneys.”
In Massachusetts, a bad experience with unmanned technology is turning some people back to a system that they’ve relied on for hundreds of years, despite the “plague” of problems associated with it. The Hampden County Bar Association published a statement in February opposing the imminent layoffs of court reporters, and a Massachusetts Court Reporters Association petition to save jobs has gained nearly 700 signatures, among them criminal trial lawyers and appellate defenders.
Based on comments from those who support keeping court reporters, there seems to be an unsubstantiated belief that human beings can remember and record events more accurately. That doesn’t seem unusual in the context of a justice system that depends on humans to make a decision based on what they see and hear in a courtroom—and perhaps somewhere behind the threat to jobs, technology poses an uncomfortable challenge to the trial system.
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 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.”
Perhaps they learned from NCSC’s William E.Hewitt, quoted in the May 1993 issue of the ABA Journal:
“Anyone that puts words down on paper or utters them in public that state or imply approval of any way of making the record that is not short-hand based will be subject to systematic attacks by the NCRA.”
Victoria Mckenzie is a freelance writer based in New York and Medellín. She welcomes readers’ comments.