EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, May 30, 2017

Supreme Court of Georgia Denies the Merchants Access to Court Recordings, Implies Undisclosed Might Win Similar Lawsuit

Today, the Supreme Court of Georgia ruled against The Merchant Law Firm, P.C., inits request "to obtain copies of audio recordings that a court reporter used in preparing trial transcripts." As Bill Rankin noted in his article on the ruling,

The Merchant Law Firm requested the recordings to try and show that Superior Court Judge David Emerson had improperly addressed defense attorney Ashleigh Merhcant in a condescending manner....

Merchant has said Emerson’s hostile demeanor toward her cannot be discerned from the stenographer’s transcripts of a murder case and a racketeering case she tried before him.

After the firm requested the audio recordings, Emerson told Merchant and her law partner husband John that they could come to court and listen to them, but they could not record them. This prompted the firm to file a lawsuit against Emerson and Cantrell in Fulton County Superior Court. But a judge dismissed the case, prompting the appeal to the state’s highest court.

As Rankin notes, Georgia's highest court didn't rule against the Merchants on the merits of their claim; instead, 

Justice Nels Peterson, writing for a unanimous court, said the firm should have used a court procedure known as Rule 21, which grants the public access to court records in criminal and civil cases. The firm also could have appealed Emerson’s order; it should not have filed suit, Peterson said.

Justice Peterson was citing to Rule 21 of the Uniform Rules of the Superior Courts of the State of Georgia, which covers access to court files. According to Judge Peterson,

The Firm claims that it has a clear legal right to copies of the audio recordings at issue under Rule 21. That right, if it exists, may be vindicated by requesting the court records under Rule 21.

As Rankin notes, though, while Justice Peterson didn't reach the merits of the claim, he implied that the Merchants would have won if they had used Rule 21. Justice Peterson observed that

The Firm argues that the trial court erred in dismissing its mandamus claim, because the Firm’s ability to listen to the recordings was not an adequate legal remedy, and it had a clear legal right to copies of the recordings. We agree that merely listening to the tapes is not an adequate legal remedy when the Firm has requested copies.

That's an important observation because Undisclosed has also requested audio copies of court proceedings; however, unlike the Merchants, we did use Rule 21 to request those copies. Therefore, when the Supreme Court of Georgia decides our case, there's a good chance that we'll be given audio recordings for the Joey Watkins trial.



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This ruling directly contradicts the argument by the State during the appeal hearing; that a writ of mandamus is the proper mechanism to enforce access on a closed case / not a party to the case. The note on copies of audio recordings is indeed important, because the other issue from the appeal hearing is whether an audio recording is a "court record". Sounds like they ruled it was in this case.

Posted by: FormerAgent | May 30, 2017 12:52:16 PM

Awesome! Been following the habeas and audio records cases.

Posted by: Heather Carter | May 30, 2017 3:31:20 PM

Hey Colin.

I asked this on twitter but I did not hear anything. Was there a response to the GIP's habeas filing by the state on Joey's case? I am not even sure if that is something that happens but if so is it posted anywhere?


Posted by: eric | Jun 2, 2017 4:49:58 AM

FormerAgent: Yes, that's a good point.

Heather Carter: Hopefully, we'll have resolution soon.

eric: I haven't heard of a response being filed yet, but I can check.

Posted by: Colin Miller | Jun 11, 2017 3:47:29 AM

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