July 2013

My new favorite law blog is Judge Richard Kopf’s Hercules and the Umpire. Lately, it’s been the first place I click on my reader. His blog is conversational and offers a view of the Federal Court from the other side of the bench.

A recent post of his was particularly spot on. It begins “For a long time now, I have used digital audio recording, rather than a court reporter. Digital audio recording is the marriage of a computer and a sophisticated sound system with multiple channels. It is monitored by the courtroom deputy in real-time eliminating the necessity of a court reporter.” 

The daily recordings are uploaded to CM/ECF so that any person, at a small cost, can listen to them. The lawyers have access to what was said, and a transcriptionist can render things on paper in the event of an appeal. There’s no need to fund a court reporter for take down, and the job of transcribing can be outsourced for quick turnaround. I am not sure what certifications are necessary, but presumably a court reporter anywhere in the world could be contracted to transcribe the proceedings as necessary.

I use Speakwrite to transcribe office documents or interviews when my office is too overburdened. Generally, within hours of upload, I have a transcript sitting in my email inbox. Presumably, such a system could be set up for court transcripts with folks certified to do them.

I don’t know how long it will take for such a system to catch on in Georgia, but I hope it happens soon. Such a system would change the landscape of appellate practice. Consider:

  • The wait for the transcript is the single longest part of the appellate process. Digital recording with upload to a central server expands the range of possible people who could do the work, virtually overnight.
  • Often appellate lawyers are waiting around for months or years for transcripts to arrive only to be bombarded with three or four at once.
  • That wait can be a great source of tension between the lawyer and the client. It is hard to explain to a client who is languishing in prison that it is not the lawyer’s fault that the court reporter is taking a year or more to type up the proceedings.
  • For matters where a transcript is not essential, the recording provides a way to impeach witnesses or review what is said. It provides a tangible record of what happened in situations when there is not time to get a transcript prepared or in situations where it would not be ordered.
  • It would save lawyers, clients, and the State money.
  • More will get recorded. Judges order their court reporter to go “off the record” with impunity. When that happens, something bad is going to transpire. Ordering a recording system to be turned off seems more Nixonesque somehow.

The idea of having a court reporter seated with a stenograph machine in the age of digital recording seems a tad antiquated. If one were designing a recording system for courts from the ground up today, we likely wouldn’t dream up the position of court reporter (a point made in the comments to the judge’s blog post). It likely made sense in the 1930s, but we are left with this vestigial court official.

Take a look at this new blog. And, if you are a reader with power to make digital recording happen in Georgia, please do so.

Andrew Cohen at The Atlantic Monthly has a post up on how Georgia’s legislature created a law that spared the life (so far) of Warren Lee Hill, a man that the State has been trying to kill. It’s a must read if you are trying to teach someone the concept of irony.

This past year, the legislature enacted a law that made the identity of companies that provide drugs for execution a state secret. The problem came when Lundbeck, the Denmark Company that makes pentobarbital, a key component in the cocktail of drugs administered during lethal injection, refused to distribute the drug if it would be used in an execution. The supply that the Department of Corrections had on hand was set to expire.

Efforts the Georgia Department of Corrections have undergone to get its hands on drugs to kill Georgia inmates have proven to be a source of embarrassment in the past. In 2011, federal drug agents seized Georgia’s stockpile of sodium thiopental obtained from a shady British supplier that was “operating from the back of a driving school in England.” The stockpile had also come under scrutiny when it was alleged that state corrections officials violated federal law by not registering its shipment of the drug with the DEA.

The obvious way for the Georgia DOC to avoid embarrassment in the future would be to stop obtaining drugs from shady suppliers. The legislature decided not to go that route. Instead, to stop future such stories, the legislature decided to make the identity of the supplier a state secret. Supporters of the bill claimed that the purpose was to prevent the harassment of such companies. An alternate explanation is that secrecy would allow the Department of Corrections to seek out other shady suppliers without the fear of future embarrassment.

When a challenge to the state secrets law was heard in a trial court, “the judge asked the obvious question: How can the executive branch constitutionally conspire with the legislative branch to block the judiciary from considering all the relevant components of a planned execution?” How can the court system evaluate an 8th amendment claim to the death protocols of the DOC if the judge cannot know what those protocols are?

Because the court reporter did not have the transcript prepared in time for the case to make its way to the Supreme Court of Georgia, this matter could not be reviewed before Mr. Hill’s death warrant expired.

This past year I participated in my first hearing before the House Judiciary Committee to speak out against some unrelated legislation. The Atlantic Monthly writer is absolutely correct in his analysis of how the sausage is made. When I spoke and offered comments that I had researched and thought out I might as well have been Charlie Brown’s teacher. By contrast, the representatives of the Prosecuting Attorneys’ Counsel were treated like ex officio members of the committee.

In this case, they should have been careful what they wished for.