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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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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