Murder Case Puts Vulnerability Of Court Records On Display

By Emma Cueto | November 4, 2018, 8:02 PM EST

What if, while sitting on death row, you had a chance to overturn your conviction by arguing the jury was not properly instructed, but the exact wording of those instructions had been lost to time?

That's what happened to Tawuan Townes, whose case was refused by the U.S. Supreme Court on Oct. 29, after two different transcripts of his suit recorded a one-word difference in the jury instructions that could mean the difference between whether he lives or dies.

The case highlights the huge impact that even small inconsistencies in a court transcript can have, the imperfect nature of transcriptions and audio recordings, and the inconsistent standards for maintaining such records across different states.

In a three-page statement accompanying the denial of certiorari in the Townes case, Justice Sonia Sotomayor expressed concern over the inconsistencies in the record, especially since an audio recording of the jury instructions had apparently been destroyed.

"A reliable, credible record is essential to ensure that a reviewing court — not to mention the defendant and the public at large — can say with confidence whether [a defendant's] fundamental rights have been respected," Justice Sotomayor wrote. "By fostering uncertainty about the result here, the trial court's actions in this case erode that confidence. That gives me — and should give us all — great pause."

"Must," Then "May"

The Townes case presents an unusual situation. His 2008 conviction in Alabama for capital murder was originally overturned based on a trial transcript that indicates the judge instructed the jury it "must" infer intent to kill if his actions were done deliberately and could reasonably be seen to result in the death of the victim, according to court documents.

Townes was convicted at the age of 18 for murder during a robbery in which both he and an accomplice allegedly shot and killed a man. His counsel argued at trial that Townes had agreed to the robbery but that he never intended to kill anyone, according to court documents.

After the conviction was overturned, however, the trial court judge told the appellate court that he had instructed the jury it "may" — not "must" — infer intent, and the appellate court asked that a new transcript be prepared by a court reporter based on an audio record of the trial, court documents said. The new transcript differed in only one word, transcribing "may" and not "must," according to court documents.

As Sotomayor explained in her Oct. 29 statement, instructing the jury that it "must" infer intent if certain factors are present takes the burden of proof off the state and is therefore unconstitutional. Instructing the jury that it "may" find intent based on certain factors, however, allows the jury to judge for itself and is allowed, according to Sotomayor.

Based on the new transcript, the Alabama Court of Criminal Appeals reversed its earlier decision and upheld the sentence. Furthermore, because the second transcript was the one adopted as the official record — and because the original audio had apparently been destroyed — the U.S. Supreme Court declined to intervene in the case.

Experts told Law360 they had never heard of a situation involving dueling court transcripts and that they found the disposal of the audio recording in the case troubling.

"That just flabbergasts me," said Eric Edwards, who teaches at the Brown College of Court Reporting in Georgia. "If this went from one [court reporter] to another and neither one of them kept it. That just blows my mind."

He said he advises his students to take and hold onto two different audio recordings of the room from two different devices, in case of technological issues.

Both Edwards and William Raftery, a senior Knowledge and Information Services analyst with the National Center for State Courts, also noted that in the era of digital recordings, it was becoming standard for court reporters to keep files for a long time.

Traditionally, Raftery explained, transcripts are the property not of the court but of the court reporter who prepared them. It goes back to the days when court reporters mostly made a living by selling transcripts once the parties requested them, he said. Court reporters typically also own the audio record of a court proceeding as well, except in states that have invested in putting their own recording equipment into courtrooms and thus own the recordings.

Different states have different regulations about how long court reporters must maintain records, with requirements also varying based on the type of case. In a traffic violation case, Raftery said, states might require the reporters maintain records for at least a year or two; in a murder case, it would probably need to be maintained for decades.

And with digital storage, there isn't much reason not to keep records for even longer than the law requires.

"As everything becomes digital and easily stored, it becomes less of an excuse not to keep these things 20, 30 years or more," Edwards said. "It's not like the old days, where you had to start filling up filing cabinets of hard copy and cassette tapes that would degrade over the years."

According to Ashley Dickey, president of the Alabama Court Reporters Association, audio files recorded in Alabama are taken at the discretion of the court reporter and, like the transcripts, are a court reporter's property. Because they are not considered official, state law does not have requirements for how long reporters must keep them.

"We don't consider that any kind of official record," she said.

Unlike states that have switched over to a system in which audio recordings are made and transcripts are then prepared on request, Alabama does not consider a transcript to be valid unless the court reporter was present and taking notes contemporaneously, Dickey said.

Oddly, however, the Alabama Court of Criminal Appeals appears to have made an exception in the Townes case by ordering a second court reporter, who presumably was not present at the Townes trial, to listen to the audio and prepare a second transcript.

Attorneys for Townes and the state of Alabama did not respond to a request for comment.

Catching Every Word

However, audio equipment doesn't fundamentally change the game when it comes to preventing errors, Raftery said.

With a court reporter, he noted, the two issues were whether the reporter heard correctly, and whether that person then correctly typed what was heard. An audio recording merely replaced the first question with the issue of whether the recording picked up the proceedings well enough, he said.

"If there's any kind of muffling or books slamming in the background, that's a problem," he said.

Edwards also noted that in a recording, there is often no way to know about sound issues until after it's too late, unlike a court reporter who can ask the parties to repeat something.

In other words, technology does not guarantee an error-free transcript.

According to Edwards, most errors in court reporting come down to human error. And as with any other profession, some people are simply better at the job than others.

Dickey said that in her estimation, human error is the greatest source of mistakes in Alabama court reporting, especially since court reporters have only been required to be licensed since 2006.

Nor is Alabama alone in this regard. Tennessee, for instance, only started requiring licenses in 2010. And in many states, including Florida and New York, certification is voluntary and not required in order to get a court reporter job.

In Alabama, Dickey said, people who were working as court reporters before licensure were grandfathered in, and sometimes aren't up to the higher professional standards the state now expects.

"Licensure has become a bigger protection, because now when someone's not complying or there's problems with transcripts or something like that, you have means to [prevent] that from happening," she said, adding that the state has taken action to suspend and revoke licenses of some substandard reporters.

Edwards, who also works as an editor helping reporters compile final transcripts in addition to teaching, said accuracy comes down to the diligence of the reporter, and whether they are willing to put in the intense effort required to catch everything.

"Every word does count," he said.

--Editing by Pamela Wilkinson.

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