Wednesday, September 8, 2010

Their Lips Move, Yet They Do Not Speak...

In the Wisdom of Solomon, it is said that the wondrous manifestations of pride in their time will swallow up the arificer.  As when the disgruntled followers of Moses crafted a Golden Calf while Moses was doing the real deal with the Creator atop Mount Sinai. 

In everyday life we see this sort of thing all the time; as when our so-called labor-saving devices do the opposite.  Amazing technology meant to enhance the quality of our life, destroys lives as when texting by teens leads to distracted driving fatalities or social networking leads to the sort of toxic bullying that may or may not aggravate severe depression among adolescents.  I'm sure you can think of dozens of examples of precisely this sort of thing, many which I documented, here, on Bad Lawyer throughout the last year. We create these marvelous things, but how marvelous are these things compared to the simplest creation in nature?  Recently, OurTown has been the beneficiary of some of the most astounding light and sky and clouds--that anytime I spend on the "blawg" seems an incredible waste of time.

Last summer I tried a lawsuit in a courthouse that had gone "full tech" eliminating actual court reporters through audio-video software and laptop computers downloaded to servers. The system had its glitches, the big one being that the technology eliminated jobs for skilled court stenographers.  Now the Louisville Courier-Journal brings us an account of that glitch which we were all waiting for, um....the disappearance of the actual record, not just in one case but in all the cases over 3 months in Jefferson County, Ky.  This is from Jason Riley's account:

"Nearly three months after defense attorneys and prosecutors held a suppression hearing in the Cecil New murder case, they had to do the whole thing all over again recently — calling in the same detective, asking her the same questions and spending more than an hour re-creating the record.

The reason?

Jefferson Circuit Court's digital audio recording equipment failed to properly record the first hearing in Judge Judith McDonald-Burkman's courtroom, capturing video, but no sound.  In fact, the Jefferson Audio Video System, or JAVS, has failed to record audio in several courtrooms, meaning dozens, and perhaps hundreds, of hearings have been silently recorded, with no way for attorneys, defendants or victims to review exactly what was said.

In McDonald-Burkman's courtroom, the audio went unrecorded for more than two weeks in May without anyone knowing.

In Judge Charles Cunningham's courtroom, about a month of proceedings were recorded without audio last fall, and is being cited as grounds for an appeal of a jury conviction in an assault and unlawful imprisonment trial.

In another instance, Judge Susan Schultz Gibson declared a mistrial in a 2008 robbery case when she learned the audio of the testimony had not been recorded.

And Judge James Shake said he faced a possible retrial after an entire criminal trial was lost in the last year.

'It's ridiculous,' Shake said. 'The record is crucial. It's the most crucial aspect of what we do.'
Some judges are fuming about the many problems with the digital system.

'This is a nightmare,' McDonald-Burkman said during a hearing after the testimony was lost in the high-profile New case, in which the defendant is accused of killing 4-year-old César Ivan Aguilar-Cano. '… It's been an issue with every court.'"
I know I've talked about the rare problem with court reporters but no one should misunderstand me, they play a crucial role in creating a "record" of that which happens inn court.  The very "humaness" of the court reporter allows this officer of the court to capture the essence of what is being said.  And even in their errors and lapses--the occasional phonetic spelling, or misconstruction, the evident truth can usually be found out through their human intervention. 

The wholesale wiping out of 3 months of a County Court's record, that may be unprecendented in modern times.


  1. Good story. Thanks for sharing.

    You write, "The wholesale wiping out of 3 months of a County Court's record, that may be unprecendented in modern times."

    This court may have set a new precedent:

  2. Anon @ 6:38

    I don't know how I missed your comment, but thank you for leaving one, especially with the information you included. Very interesting!

    I knocked court reporters for being costly, but they are invaluable to the due process of our courts and should not be taken for granted.