Thursday, November 2, 2017
On Monday, the Supreme Court of Georgia ruled against Undisclosed in our attempt to get the court reporter's recording of the Joey Watkins trial. In doing so, Georgia's highest court made one decision that will greatly help future parties seeking access to court records and one decision that will greatly curtail that access. So, what did the Supreme Court of Georgia rule and why?
All court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.
Our goal, of course, was to copy that recording so that we could play portions of the trial on our podcast so that listeners could hear testimony from the witnesses' own mouths. The State opposed this effort on two grounds.
First, they claimed that Rule 21 only creates a right to access, not a right to copy. As the Supreme Court of Georgia noted,
Whether Rule 21's right of access to court records includes the right to copy is a matter of first impression. Rule 21 expressly states that court records are available for “public inspection,” but does not specifically address the ability to copy records. The State asks us to construe the term “inspection” according to its plain and ordinary meaning, as we ordinarily do when construing statutes and court rules.
The Supreme Court of Georgia disagreed, concluding that
A right to read but not copy court records would be of limited use to this purpose. Indeed, the right of access is not complete unless it includes the right to copy. See Whorton v. Gaspard, 393 SW2d 773, 774 (Ark. 1965) (“The right to inspect ... carries with it the right to make copies, without which the right to inspect would be practically valueless.”); Fuller v. O'Donnell, 17 So2d 607, 607 (Fla. 1994) (“[T]he right to inspect would in many cases be valueless without the right to make copies.”); 37 Cent. L. Journal 399 (1893) (“[T]he right of examination must necessarily carry with it the right to make whatever copies or other memoranda are necessary to effectuate the purpose for which the examination is sought, or else the grant of the mere right of inspection is nugatory.”).
This is a pretty big deal. If someone down the road wants to investigate a possible wrongful conviction case, she can now not only look at trial transcripts and exhibits; she can also make copies so that the evidence can be reviewed and compared with other evidence.
The State's second argument was that a court reporter's recording was not a court record. The Supreme Court of Georgia agreed with this argument, finding that the phrase "court records" only covers documents filed with the court. And, according to the Supreme Court of Georgia,
The parties disagree about much, but one thing they seem to agree on is that court reporters rarely, if ever, file their audio recordings with the court. It is the transcript of the court proceedings that is the public record of the proceedings once it is filed.
To me, though, this seems like a distinction without a difference. A court reporter files a typed transcript of a trial that is created based upon listening to the recording of the trial. And, because no human being is perfect, there are bound to be errors in the transcription. So, why give access to the trial transcript and not the more accurate source document from which it is derived? Indeed, wouldn't giving access to the recording be essential for someone to figure out whether there was a transcription error?
Now, in fairness, as Bill Rankin pointed out to me, the court's opinion does allow for a possible exception. In footnote 12, the court notes that
Our ruling here does not preclude a party from accessing a court reporter's audio recordings in some situations. The Act provides a party who believes that the transcript “does not truly or fully disclose what transpired in the trial court” with the ability to correct the transcript, and the matter would be set for a hearing. See OCGA § 5-6-41 (f). Nothing in the Act would preclude a party from filing a subpoena to obtain the recordings for the purpose of correcting the transcript. The audio recordings may be relevant and material to the issue of what transpired at court and complying with a subpoena for the recordings would not generally be oppressive. See Price v. State, 269 Ga. 222, 224 (2) (498 SE2d 262) (1998) (trial court erred in quashing subpoena for documents that were relevant to issue because complying with the subpoena was not unreasonable and oppressive).
But it's easy to see the possible limitations of such an exception. Imagine, for instance, that, as in many cases, one attorney handles the trial and another attorney handles the appeal. In such a case, the new attorney is likely to have no idea that there could be several errors in the trial transcript because she wasn't present for the original trial.