Month: August 2019
How Should Court Reporters Handle Requests to Change a Transcript? – Part 2
In a previous blog post we discussed the case of a Texas man facing trial for tax fraud who alleged that attorneys for the government had a court reporter in a pre-trial deposition change the official transcript without his knowledge.
In the case, the defendant’s counsel noticed a discrepancy in the line and page numbers of the transcript when both sides were designating which sections to be used at trial, which led to the discovery of two “final” transcripts. The first final transcript (an expedite) was sent to both attorneys, then the next day the government’s attorney requested that a couple of changes be made. The court reporting firm made the changes, without informing defense counsel, and then sent a revised final transcript to both attorneys by email. The email to the defense attorney containing the revised final transcript went to his spam folder, and since he already had what he believed was a final transcript he didn’t realize he was missing anything.
Since there was already a lot of contention and distrust between the parties and attorneys in the case, this episode led to a Motion to Dismiss the case and a Motion for Sanctions against the government attorneys. It all could have been avoided by strict adherence to the Code of Ethics.
In addition to state court reporting boards, each court reporting professional association has a Code of Ethics. The wording isn’t exactly the same for each, but each contains the same essential provisions. Looking at the National Court Reporters Association Code of Ethics, there are four sections that apply to this type of situation:
1. Be fair and impartial toward each participant in all aspects of reported proceedings, and always offer to provide comparable services to all parties in a proceeding.
2. Be alert to situations that are conflicts of interest or that may give the appearance of a conflict of interest. If a conflict or a potential conflict arises, the Member shall disclose that conflict or potential conflict.
3. Guard against not only the fact but the appearance of impropriety.
4. Preserve the confidentiality and ensure the security of information, oral or written, entrusted to the Member by any of the parties in a proceeding.
In this particular case, when the court reporter received a request to “review” the final transcript before it was sent to a hearing officer and opposing counsel, the court reporting firm need only reply saying that it’s not possible to accommodate that request. A court reporter’s final transcript, the official record, is not to be subjected to an editing and vetting process by counsel. Should errors be found in the final transcript, they can be noted on the errata sheet if the witness has chosen to exercise their right to read and sign the transcript, or attorneys can bring it to the court reporter’s attention at that time. At no time should a court reporter make changes/corrections to a transcript without informing opposing counsel that they’ve done so, listing the precise changes/corrections made, and providing the reason(s) for the change.
Defendant Alleges Prosecutors Pressured Court Reporter To Change Transcript – Part 1
A Texas man under indictment for tax fraud and evasion claims that attorneys from the United States Department of Justice tampered with a deposition transcript by “pressuring” the court reporter to make undisclosed changes to it, and sought to have his case dismissed because of it.
After reviewing numerous court filings by both sides related to the Motion to Dismiss, it seems likely that a comedy of errors and a rocky relationship between prosecutors and defense counsel, combined with some not-best-practices, precipitated the confusion.
Jack Pursley, an attorney from Houston, is accused of evading taxes by allegedly repatriating more than $18 million in untaxed earnings from the Isle of Man. DOJ attorneys took the video deposition of a witness living on the Isle of Man in early May, 2019. Since there was a hearing scheduled shortly after the date of the deposition, defense counsel ordered a rough draft of the transcript overnight to reference while drafting their hearing arguments and briefs. Defense counsel then ordered an expedited final transcript.
A few weeks after the hearing, while doing trial preparation, counsel exchanged deposition excerpts each intended to introduce at trial. It was during this process that the defense attorney noticed a discrepancy between the line and page numbers in his transcript and the government’s transcript. After numerous phone calls and emails between counsel regarding these discrepancies it was revealed that one of the government’s attorneys had requested that the court reporter make changes to the final transcript, which were incorporated without defense counsel’s knowledge. Government attorneys told defense counsel that the court reporting firm reached out to them to see if they had any changes and they were simply replying.
Defense counsel then filed a Motion to Dismiss the charges against his client or to sanction Department of Justice attorneys because of their “gross misconduct,” even alleging they may have committed criminal acts. Here’s the timeline of what happened, according to the Motion.
• April 30 & May 1 – Defendant’s deposition was taken.
• May 2 – Expedited rough draft received by both parties.
• May 6 – Expedited final transcript scheduled to be delivered to all counsel and the judge on the Isle of Man by court reporter.
• May 31 – Defense counsel notices page/line number discrepancies in deposition excerpts exchanged between counsel.
So, when and how did the alleged tampering occur? Government attorneys provided defense counsel copies of the email exchanges between one of the government attorneys and the court reporting firm that provided some answers and created more questions.
On the morning of May 6 the court reporter emailed GA to ask if the hearing officer’s copy of the transcript and video were to be sent to the DOJ or to the hearing officer directly. GA responded with that information but also asked for the opportunity to review the final transcript before it was sent to everyone else, because she “noticed a few typos in the rough draft” that was sent. The court reporter then sent the final transcript to GA around noon that day.
Around 5 PM that day the court reporter emailed GA to ask if she was done with her review, because the court reporter was obligated to send the expedited final out that day. GA replied with a request to change some formatting regarding objections and exhibits marked/entered into evidence, a request to insert a word into an answer that she claimed was missing from it, and a request for the court reporter to listen to the video and attempt to make out what the witness was saying at multiple spots in the transcript where the court reporter had listed an “inaudible.”
On the morning of May 8the court reporting firm informed GA that the formatting requests would not be accommodated and that the court reporter would review the video and audio recordings and make any changes to the transcript she felt were necessary. That afternoon, according to the government’s response to the motion, the court reporting firm emailed all counsel a revised deposition transcript. Defense counsel stated in a clarification to their original motion that they didn’t receive that email and that a subsequent review of their spam folder showed it had been sent there on May 8.
After hearing from both sides, the trial judge denied the Motion to Dismiss and refused to sanction government attorneys. The episode contains multiple lessons for court reporting firms on how to help avoid such situations in the future and raises other ethical questions, which will be covered in Part 2.
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A Court Reporter’s Facebook Post
Whether in a deposition suite, a courtroom, or any other setting, a court reporter is required to be an impartial reporter of proceedings and treat both sides equally.
The Kansas Board of Examiners of Court Reporters recently recommended that a court reporter in a high-profile murder case be reprimanded after she made multiple Facebook comments about the case while it was on appeal.
A disciplinary board ruling says the judicial court reporter for the murder trial of Dana Chandler deserves public reprimand for offering her opinion on the case in social media comments.
Punishment for the court reporter, April Shepard, will be determined by the Kansas Supreme Court, which could issue a public reprimand or impose more serious consequences.
The Board of Examiners of Court Reporters recommended discipline after Shepard admitted to violating a rule that requires court reporters to be impartial. A hearing in April on whether to keep any punishment private involved a volley of shots from Shepard’s attorney directed toward Keen and Eileen Umbehr, a couple known for their relentless advocacy for Chandler’s release.
The board rejected Shepard’s arguments in a ruling last week, saying the court reporter “should have known that her comments would carry the strength of real or imagined authority because of her official role in the trial and the fact that she had a front-row seat to observe all the evidence.”
In 2016, while the case was under appeal, Shepard entered debate about Chandler’s guilt on Keen Umbehr’s Facebook page. Shepard had changed employment by then from Shawnee to Wyandotte County District Court.
Shepard asserted her role as the court reporter in multiple comments to bolster her opinion that Chandler was guilty and would be convicted again if granted a new trial.“I’m confident they got the right perpetrator in this case,” Shepard wrote. “Look, I was there, I reported that whole case. I saw firsthand this case.”
The Kansas Supreme Court will consider the board’s recommendation without hearing oral arguments.
Discipline could include public reprimand, probation, professional education, suspension of a court reporter’s certificate, or revocation of the certificate.