Preserving the Record

Awhile back I pointed out the adoption of a "white paper" on this topic by my national group of court administrators, COSCA.  More recently I visited with my good friends who lobby for the state court reporter association, and assured them that by bringing attention to the white paper I was not foreshadowing an effort to promote legislation in their arena.  I said that there is just a natural, built-in tension between practitioners of court adminstration and the traditional, one-steno-court-reporter-per-judge model. 

More recently, I met a Texas senior district judge, John Delaney from Bryan, who is interested in the use of electronic recording, ER in the following excerpt of some advice he provides to other judges.  My apologies to my friends in the court reporting profession, and their representatives, but this is good information for those judges considering their alternatives:

My purpose here is to help you find answers to the questions that occur to judges once they start considering ER. It’s not my purpose to try to convince you to replace a good steno reporter. I strongly believe that every trial judge should have the choice between ER and steno reporting. But sometimes it’s hard to know which choice to make because there is a lot of misinformation around. I will give you the truth as I know it.

 How does it work?

There are many questions about how ER actually works in practice in the courtroom. The simplest way to deal with that is to log on the website of The American Association of Electronic Reporters and Transcribers, http://www.aaert.org/, There you will find a comprehensive “Overview” of ER, including excerpts from many of the studies that have proved how successful it’s been.

How do I get the legal authority?

Then there’s the question of how you get the legal authority to use ER in Texas. The answer to that has become fairly easy. All you have to do is ask, by sending a letter and proposed local rules (see below) to the Clerk of the Supreme Court of Texas (and the Court of Criminal Appeals if you also handle criminal cases), and you will receive authority in the form of a “Local Rule” they approve for your court or all the courts in your county.

Who will run the ER system and how do they get trained?

Next is the question of who you will select to use the ER system, and how do they get trained. There are no schools training ER operators in Texas yet. You’ll most likely have to recruit a legal assistant or deputy clerk, someone with good clerical skills. Part of the training will come from the equipment vendors. Part of it will come from studying the “local rule” text below and the TRAP Rules. Some can come from actually doing an on-site visit to one of the courts already using ER (state and federal).

Who does the transcribing?

The next question is “how do I get the testimony transcribed for appeal?” You have two choices: let the “Court Recorder” do it, or send it out to a transcription service. In the digital age you send audio files over the internet, and the transcription can be done anywhere. There are form books and rules to go by. It takes some study to do it according to the format requirements of the appellate courts, but it’s something that a competent person can master.

Are there special rules about using ER?

It’s important to know there are some special rules about ER that appear in our Texas Rules of Appellate Procedure: Rules 13, 34.6, and 38.5 that cover this. As you can see, ER is firmly recognized by our appellate courts.

What kind of equipment should I get, and who will pay for it?

There are several vendors in the market. Some are audio only; one is audio plus video. Almost all equipment is digital (computerized) versus tape these days. It won’t be hard to find a vendor anxious to get your business. The commissioners court will almost certainly fund the purchase when you show them how much money you expect to save in comparison to having a steno reporter.

(Suggested local rule, modify as necessary to apply to criminal proceedings)

RULES GOVERNING THE PROCEDURE FOR MAKING A RECORD OF CIVIL COURT PROCEEDINGS IN ___________________ BY ELECTRONIC AUDIO OR VIDEO RECORDING

1. Application. The following rules govern the procedures in the __________________ in proceedings in civil matters in which a record is made by electronic audio or video recording, and appeals from such proceedings.
2. Duties of Court Recorders. No stenographic record shall be required of any civil proceedings electronically recorded. The court shall designate one or more persons as court recorders, whose duties shall be:
a. Assuring that the recording system is functioning and that a complete, distinct, clear, and transcribable recording is made;
b. Making a detailed, legible log for all proceedings while recording, indexed by time of day, showing the number and style of the proceeding before the court, the correct name of each person speaking, the nature of the proceeding (e.g., voir dire, opening, examination of witnesses, cross-examination, argument, bench conferences, whether in the presence of the jury, etc.), and the offer, admission, or exclusion of all exhibits;
c. Filing with the clerk the original electronic recording including all exhibits;
d. Storing or providing for storing of the electronic audio or video recording to assure its preservation as required by law;
e. Prohibiting or providing for prohibition of access by any person to the original recording without written order of the presiding judge of the court;
f. Preparing or obtaining a certified copy of the original recording of any proceeding, upon full payment of any charge imposed therefor, at the request of any person entitled to such recording, or at the direction of the presiding judge of the court, or at the direction of any appellate judge who is presiding over any matter involving the same proceeding, subject to the laws of this state, rules of procedure, and the instructions of the presiding judge of the court; and
g. Performing such other duties as may be directed by the judge presiding.
3. Reporter’s Record. The reporter’s record on appeal from any proceeding of which an electronic recording has been made shall be labeled to reflect clearly the numbered contents certified by the court recorder to be a clear and accurate copy of the original recording of the entire proceeding. Any exhibits designated by the parties for inclusion in the reporter’s record shall be arranged in numerical order and firmly bound together so far as practicable, together with an index consisting of a brief description identifying each exhibit.
4. Time for Filing. The court recorder shall file the reporter’s record with the court of appeals within fifteen days after the perfection of an appeal. No other filing deadlines as set out in the Texas Rules of Appellate Procedure are changed.
5. Appendix. Each party shall file with his brief an appendix containing a written transcription of all portions of the recorded reporter’s record and a copy of all exhibits relevant to the issues raised on appeal. Transcriptions shall be presumed to be accurate unless objection is made. The form of the appendix and transcription shall conform to any specifications of the Supreme Court.
6. Presumption. The appellate court shall presume that nothing omitted from the transcriptions in the appendices is relevant to any issues raised or to the disposition of the appeal. The appellate court shall have no duty to review any part of an electronic audio or video recording.
7. Supplemental Appendix. The appellate court may direct a party to file a supplemental appendix containing a written transcription of additional portions of the recorded reporter’s record.
8. Paupers. Texas Rule of Appellate Procedure 20.1(j) shall be interpreted to require the court recorder to transcribe or have transcribed the recorded reporter’s record and file it as appellant’s appendix.
9. Accuracy. Any inaccuracies in the transcriptions of the recorded reporter’s record may be corrected by agreement of the parties. Should any dispute arise after the reporter’s record or appendices are filed as to whether an electronic audio or video recording or any transcription of it accurately discloses what occurred in the trial court, the appellate court may resolve the dispute by reviewing the audio or video recording, or submit the matter to the trial court, which shall, after notice to the parties and hearing, settle the dispute and make the reporter’s record or transcription conform to what occurred in the trial court.
10. Costs. The expense of appendices shall be taxed as costs at the rate prescribed by law. The appellate court may disallow the cost of portions of appendices that it considers surplusage or that do not conform to any specifications prescribed by the Supreme Court.
11. Other Provisions. Except to the extent inconsistent with these rules, all other statutes and rules governing the procedures in civil actions shall continue to apply to those proceedings of which a record is made by electronic audio or video recording.

Justice for Veterans

Today is a state holiday, and I have time to write about why. Ron Castille was a Marine lieutenant in Vietnam, and today is the Chief Justice of the Supreme Court of Pennsylvania. He made the New York Times this morning, in a terrific op-ed that I commend to you, A Special Court for Veterans, on the movement toward veterans courts and statewide efforts to better provide justice for veterans and those who currently serve.

Texas is in the forefront as well, and on several fronts at once. Bar President Terry Tottenham, a former Marine captain, has launched the wildly successful Texas Lawyers for Texas Veterans initiative. It is a state-wide effort to recruit lawyers who will provide pro bono legal services to veterans who cannot afford those services. The initiative has received an overwhelming response from Texas lawyers, with Veterans Clinics operational in Houston, Dallas, San Antonio, El Paso, Fort Worth, Austin, and every other veterans-centric area of Texas. To further assist access to justice for veterans, by order the Supreme Court of Texas has recently amended the Rules Governing Admission to the Bar of Texas to allow Judge Advocates who are not members of the Texas bar to represent soldiers and their dependents in specific instances.

On the legislative side, SB 1940 from last session established veterans court programs in Texas. There was a great article about this in the Texas Tribune back in May, and the implementation of the bill is the subject of a joint interim study by the House Committee on Criminal Jurisprudence and House Committee on Defense and Veterans' Affairs, which are also charged to examine the link between combat stress disorders of war veterans, including post-traumatic stress disorder and traumatic brain injury, and the onset of criminal behavior. They had a very compelling hearing on July 13 with testimony from judges (and veterans) Brent Carr and Michael Snipes. Bexar, Dallas, El Paso, Harris, Tarrant and Travis counties all have veterans courts, and Smith County is close. So courts have been implemented in the major jurisdictions in Texas, but from the testimony in the hearing it seems safe to say that obstacles, such as adequate resources and local collaboration, remain.

We can do more. For starters, why aren't holidays like Veterans Day an occasion for public service rather than a mandatory state holiday? And on the court administration side, we must do more. We can better collaborate at the state level to ensure that all the agencies and stakeholders seeking to expand these services are working together. And on the court technology front - never far from my mind - it seems to me that ensuring access to courts for veterans and service people overseas is one of the most compelling reasons that we need to achieve the capability for universal eFiling in any Texas court, for any case type.

Courthouse Design

The rule of law and courthouses are the cornerstone of our democracy.  The National Center for State Courts has recently published the third edition of Retrospective of Courthouse Design 2001-2010, describing noteworthy federal and state projects across the country and a few from overseas. 96 projects are published in the volume, 94 are courthouses, plus a judicial training center in New York and a statewide IT center for the Arizona Supreme Court - I am jealous. There are some beautiful and highly functional facilities featured, including the Ohio Judicial Center in my home town, Columbus, which I have heard is fabulous from several people, and the Brooklyn Supreme and Family Courthouse, which is notable as a public-private partnership with 180,000 square feet of speculative office space included.

In an introductory article, my friend Marcus W. Reinkensmeyer makes a point that I have been wondering about lately.  He contrasts the emergence of the virtual courthouse - the rapid evolution of 24/7 access to case information and court services in many places - with the need for physical facilities where humans can come together, concluding:  "Courts mus plan and budget for not only a large investment in sustainable and scalable technology infrastructure to support remote court services, but physical justice centers that are co-located with trial courts for one-stop resolution of stakeholder-intensive cases (e.g., family, juvenile, criminal, and mental health cases.)"

Prison Population

Mike Ward's article in the Statesman this morning, about the budget crisis and whether treatment and rehab programs will stay funded, prompts me to chime in, as I did in the CourTex newsletter back in 2007: 

The state’s continuing ability to match capacity with demand currently depends largely on the parole board’s release and revocation practices.  The options for addressing population pressure, short of new commitments to capacity, would appear to be:  attempt to affect parole approval and revocation rates; affect sentence lengths and release laws through legislation; reduce penalties or judicial discretion directly through legislation; dramatically increase funding for alternatives and hope for minimal “net widening”; or adopt a sentencing commission/guidelines model that was implicitly rejected in 1993. These choices are timely this session, but longer term they are cyclical and incessant. To meet this continuing challenge, and consistent with much that is happening and recommended around the country, Texas policymakers should develop a more consistent focus on sentencing policy and data collection, in some form.

As Ward reports today, the legislature responded in 2007 by funding alternatives to revocation of probation parole; more detail can be found in a report from Tony Fabelo and the CSG Justice Center in 2009:

In 2007, the legislature rejected plans to spend $523 million in additional prison construction and operations and instead, through its Justice Reinvestment Initiative, appropriated $241 million to expand the capacity of substance abuse, mental health, and intermediate sanction facilities and programs that focused on people under supervision who would otherwise likely be revoked to prison.

The piece that continues to be missing is what we had in 1993 and have not had since:  reliable, case-level data on what is happening at the front end of the state criminal justice system:

A critical companion to our [1993] work was the parallel effort by the Criminal Justice Policy Council to develop meaningful, case-level information about actual sentences in Texas.  This was a first in modern times, and has not been replicated since 1993.  The PSC’s work was thus uniquely informed by current, powerful information that everyone agreed was valid[.]

I am very pleased that Tony Fabelo has found a way to spread his inimitable work around the country (helping states like Indiana with incaraceration rates that are only two-thirds of the rate that Texas has achieved, so that our "equilibrium" is a more expensive one than many other states could achieve).  And, no offense to my friends at the LBB who now handle projections of the prison population for purposes of informing the budget debate.  But, I continue to be convinced that rational analysis of the policy alternatives will ultimately require consistent and reliable data collection on the sentence, offense, criminal history, and a few other salient characteristics, of felony cases across the state.

Capitol Polish

I will be glad when the work on the capitol's exterior is finished. It looks, from the shine under the scaffolding, like it will be worth the wait. Here is the view from the bike this morning, and a link to a story about the restoration work: http://www.kxan.com/dpp/news/texas/capitol-dome-being-restored