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Court video project exposes problems

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The Supreme Court wanted feedback on a pilot project using an audio-video record as the official appellate transcript in three Indiana courts. Lawyers at a recent discussion on the topic appear to favor pulling the plug.

“Not a single attorney who works with us enjoyed the experience of briefing a case,” said Stephen Creason, chief counsel in the office of Indiana Attorney General Greg Zoeller. Staff attorneys briefed 20 cases on appeal – 13 criminal and seven involving child-welfare issues.

While the project has been an interesting experiment, Creason said, the results don’t appear to present any efficiencies for appellate counsel. With the audio and video, he said, attorneys “took two to three times longer to review the transcript and prepare the brief.”

The AG’s office was able to meet its briefing deadlines, but that’s largely because more time was set aside to handle cases involving mandated A/V transcripts. “If all our attorneys had to do this, we couldn’t do it” within filing deadlines, Creason said.
 

pilot-15col.jpg Marion Superior Judge Mark Stoner, left, talks about presiding in a court equipped for audio/video transcripts during a recent Indianapolis Bar Association panel discussion. Also pictured are attorneys Stephen Creason and Patricia C. McMath. (IL Photo/Dave Stafford)

“In the pilot we were able to adjust our schedules to make it work. In real life, I’m not sure that would work out,” he said.

Creason was among a panel of attorneys and judges who shared their impressions of the pilot program at a discussion April 9 hosted by the Indianapolis Bar Association. Launched in August 2012, the program undertaken by Supreme Court administration installed video cameras and microphones in a criminal court in Indianapolis, a juvenile court in Lafayette and a civil court in Fort Wayne.

Two other appellate attorneys on the panel said video transcripts pose problems and may delay cases, contrary to the intent of the pilot that aimed to expedite appeals. Marion County Public Defender Agency appellate counsel Patricia C. McMath said the time it takes to brief an argument using video transcripts is burdensome.

“A sterile (paper) record can be our friend,” McMath said.

The Indiana Court of Appeals hopes to review 15 cases from each court, and the panel of Judges Cale Bradford, James Kirsch and Melissa May hears each case that comes with an A/V transcript. Bradford said the pilot project adopts the same technology that has been used in Kentucky courts as the official record for nearly three decades.

“The judges and law clerks I talked to in Kentucky … are very comfortable with it,” Bradford said at the outset of the discussion. Toward the end, he reminded attorneys of the current status of A/V transcripts.

“This is a pilot project and not a fait accompli from the Supreme Court,” Bradford said.

View from the bench

Marion Superior Judge Mark Stoner presides in the court that’s sent a number of criminal cases to the Court of Appeals using a video transcript. Because no civil appeals had been generated with an A/V transcript from Allen County, Marion Superior Civil Division judges also were authorized to use Stoner’s court to generate cases using the technology.

“I have high praise for the technology,” Stoner said.

“You get a better context of what’s actually going on in the courtroom based on what you see,” he said. “We live in a video society and a video culture.”

Jurors seemed more attentive to exhibits when they were displayed on monitors, he said. He acknowledged watching monitors himself during trial.

The A/V system Indiana is using in its pilot comes from Jefferson Audio Video Systems of Louisville, which also supplies technology for Kentucky courts and others that use A/V records. Stoner said he intentionally experimented with the technology, which automatically switches to cameras and microphones nearest speakers. Judges or court staff may manually control the system, however.

“It was not very difficult for the judge to do,” Stoner said of manually controlling the system. He could control which camera was in use at a given time, but noted he couldn’t control camera angles or depth of field. He’d like to see split-screen capability as a future enhancement.


pilot2-15col.jpg Indiana Court of Appeals Judge Cale Bradford, left, talks about the A/V transcript pilot project alongside panelist James Maguire of the Division of State Court Administration. (IL Photo/Dave Stafford)

Concerns had been raised about how cameras might change court proceedings, but Stoner has seen none of that. Cameras were never on jurors, for instance, and “there was no concern on anybody’s part that attorneys were playing to the cameras,” he said.

“The audio was the record, the video was just a bonus,” he said. If at any point he had trouble hearing, “all I had to do was put the headphones on.” He said audio on the pilot system was “10 times better” than what’s currently in use in other Marion County courts – technology he considered state of the art.

Stoner said microphones were so sensitive that they could pick up whispered conversation and the sound of paper shuffling.

On the record

Frost Brown Todd LLC attorney Griffin Sumner is an appellate attorney based in the firm’s Louisville office who practices in both Indiana and Kentucky.


sumner-griffin.jpg Sumner

“It’s incredibly time-consuming from an appellate lawyer’s standpoint,” Sumner said of preparing appellate briefs using the A/V transcript. She said her colleagues routinely will order a paper transcript in Kentucky cases when the trial took more than two days.

Sumner explained that it’s more cost-effective for clients in long trials to order paper transcripts, because lawyers can use them to cut directly to the appellate arguments. The video transcript, on the other hand, may require viewing of the entire trial to know the case, costing a client far more.

Technology also hasn’t kept up in some Kentucky courts, she said. “There are still some counties that send me a VHS tape” containing the official trial court record.

Sumner did see promise in one advance that has been used in some Kentucky courts – electronically filed briefs that contain hyperlinks to the time-marked audio/video record. Creason, who said citing to the A/V transcript also is a challenge, agreed that could be desirable.

Attorneys also are concerned that the video record may lead appellate judges to reweigh evidence since they’ll be able to see with fresh eyes what they couldn’t before – a witness’s demeanor and body language, for instance.

Bradford doesn’t see that. “The person may look like Larry the Liar,” he said. “If the fact-finder found it credible, I’m done.”

Creason challenged that. “We know that appellate reweighing happens now,” he said, because the Supreme Court grants transfer on that basis. He said human nature is likely to sway decisions when the record is audio/video. “How can we control it?” he asked.

Lawyers on the panel said public agencies and attorneys performing pro bono work will be put upon if they’re required to view lengthy trials to brief their cases on appeal.

“I see the costs of civil appeals going up a lot more” if video transcripts are the record, Creason said. “Prosecutors’ offices and public defenders’ offices are going to hate this.”

Bradford said after the discussion that the Supreme Court has not set an end date for the pilot project, and that he was unaware of any proposal to expand the scope of the current pilot.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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