Justices Removing Justice

The Heroic Journey: A Stenographer’s Judicial Nemesis

The American Justice System simply cannot exist without stenographic court reporters. It’s that simple – to me, at least.

Then why are Courts across the country getting rid of their stenographic court reporters? The budgetary and shortage reasons they are claiming surely can’t be the cause behind it. Those can be overcome.

Courtrooms used to function with only a judge and a court reporter, with the court reporting handling the judge’s calendaring, minute orders, exhibit handling, jury handling. Then the case loads increased and the court reporters brought in help in the form of clerks. When the clerks’ job duties became overwhelming, they brought in bailiffs to bring order to the unruly proceedings and handle protecting the jury from tampering. But then bailiffs were replaced with low-wage courtroom assistants who took over the jury handling duties and they would call the courthouse bailiffs only as needed. When budgets got tight, the first courtroom staff to get the ax was the one with the most skills and ability to do the job of 3 people, the court reporter.

Los Angeles County, California, was the first county in California to privatize court reporters in civil courtrooms in 2012, making the litigants responsible for paying the court reporters and thereby saving $12 million by getting rid of 79 official court reporters from its roster of over 500 official court reporters. A decade later, 48 of the 58 counties in California, have privatized their civil court reporters to save money. The popular saying, “As California goes, so goes the rest of the country” rang true with many states following CA’s lead, such as Colorado, Texas, Washington, Florida, and more. Some states had already privatized their court reporting services, such as Nevada, which has done so for about 30 years.

But some states took it a step farther and removed court reporters altogether, replacing them with electronic recording equipment in all of its courtrooms, including felony criminal courtrooms, such as Massachusetts and Wisconsin. Arizona recently tried and failed.

Indiana is the most recent state to attempt to remove stenographic court reporters from its courtrooms with their Trial Rule 74 currently being proposed.

Proposed Amendment to Indiana Rules of Trial Procedure (January 2023)

I was alerted via Facebook on January 13th and quickly shared this Indiana Court Reporter’s post with all the court reporting groups I’m on in Facebook where it immediately received nationwide attention and response.

It received the attention of a popular steno blogger, Christopher Day, of Stenonymous. And he posted an article this morning.

The Indiana Judicial Branch is seeking public comment on this matter until February 6, 2023 at 12:00 p.m. (Eastern). Follow this link above and click on “Proposed changes to Trial Rule 74” to submit your comments in their form. Let them know why it would be a mistake to adopt this language and why stenographic court reporters are important.

Here is the comment I left:

“Stenographers are the bedrock of the justice system.  Stenographers are unbiased protectors of the record.  Stenographers produce a verbatim record of what is said, and ensure that they get every word.  Stenographers keep the record and produce a transcript when needed.  When a stenographer produces a transcript, that stenographer ensures that the chain of custody has never been broken. 

The Chain of Custody is an important concept in understanding the role a stenographer plays in the justice system.  Chain of custody means that the stenographer witnessed each word being uttered, captured it with a live verbatim stroke on their machine, within nanoseconds, made at least three backups of that word (on their machine SD backup card, their laptop, and on the cloud), has an auditory memory of the word and also a kinesthetic memory of it (their finger placement on the steno keyboard), proofread it from beginning to end in accordance with their years of training in English grammar and punctuation, produced a transcript that is formatted according to code, and certified it, certifying that every word was said by the speakers and they witnesses it and nobody has altered anything in the transcript. 

When you don’t use a stenographic (or voice) reporter, you do not have the assurance that the chain of custody was not broken and you cannot possibly be certain that every word in the transcript was spoken by that speaker or that it hasn’t been changed or altered by someone with a biased interest in the case.  In fact, digitally recorded proceedings, many times, will require multiple unlicensed typists to do the work, making it difficult to track them down later, and takes longer to produce. 

It takes a typist four times longer to transcribe something from audio using a QWERTY keyboard, and longer if the audio quality is poor or speaker mumbling requires multiple playbacks.  And working with current 50-year old statutory court rates, it would mean that transcribers would be earning less than minimum wage.  Since there are laws in the US prohibiting a person from earning less than minimum wage, it would be prohibitive of a company using US workers for the transcription work, so they would be forced to outsource those jobs overseas.  The recording of legal court proceedings and having them transcribed by multiple typists in other countries for below minimum wage is creating a slave trade. 

Using unlicensed transcriptionists outside of the United States creates a security risk for the data contained within those transcripts.  And it makes it impossible to sue and recover damages for inaccurate transcriptions.  Stenographers are required to maintain licenses and carry Errors and Omissions Insurance, and attorneys can sue a court reporter if she makes a transcription error, or complain to the board, and there are consequences, including fines and the loss of licensure.  Going down the road of electronically recording audio and using transcribers takes away all accountability, responsibility, and recourse if damages ensue. 

Stenographers are independent contractors when it comes to maintaining our steno notes and producing transcripts.  We archive our notes individually.  Having a decentralized system of archiving court records is the most secure way of protecting the record.  When one company or government entity were responsible for holding all the records, that can be a recipe for disaster.  It creates an easy target for hackers.  It can overwhelm the servers housing the data.  It creates an astronomical financial burden to store all that data in one place and maintain backups.  I attended the Wild West Court Reporters Convention in Snowbird, Utah, this past summer where I was able to talk to the keynote speaker, who was incarcerated and for a murder she did not commit and then exonerated after she was able to track down the court reporter on Facebook to get the transcript of her trial. The courthouse had a flood and all her records were lost. But the court reporter still had all her stenographic notes in her garage from the trial that took place 20 years ago. A stenographer has an intrinsic and strong personal duty to protect the record for their entire lifetime, and even designates a person to leave their notes to upon their death. It’s a stark contrast to a window clerk who wasn’t there and can simply say, yup, no, we don’t have it, with no accountability or repercussions and doesn’t care one iota for the record’s existence or lack thereof.

But most importantly, absolute power corrupts absolutely.  We’ve seen the recent example of Darrell Brooks who was convicted of murdering five people after his SUV rammed into a Christmas parade in Waukesha, Wisconsin in November of 2021.  There were no records of his bail hearing where he was charged with injuring a woman at a gas station with his vehicle just a week before the Christmas parade massacre.  The proceedings were recorded, but the recordings of the day before, the day after, and the day of his hearing were conveniently “missing.”  The appearance of impropriety is obvious when the record is maintained by the very court that would be impuned by that evidence of erroneously letting that man out on $1,000 bail.  In this Waukesha case, the court is not unbiased, IMHO.  The court should not be given the responsibility of keeping records, electronic recordings or otherwise, because of the possibility of their involvement in a case of obvious error.  The court should give absolutely zero appearance of impropriety at all times, but when the court is the keeper of the record, it becomes an impossibility. 

In the Brooks’ case, the Wisconsin Court Reporters Association warned the courts over and over about the dangers of proceeding without stenographic court reporters.  Their warnings were ignored.  But the court in Wisconsin did not suffer any harm, because it controlled the record and the investigation.  Otherwise, had a record been produced by an unbiased stenographic court reporter, the families of those 5 murdered victims could have brought suit against the judge who erroneously let him out on a $1,000 bail.  What are wrongful death cases worth these days?  It depends on the victims; right?  3 dancing nannies and a husband of one, probably wouldn’t have seen an award for more than a couple million each, based on the life expectancy tables, but the child could have brought an 8 figure judgment against the small county.  The combined awards in the multiple wrongful death causes of action could have bankrupted the small Waukesha county.  So good for Waukesha for getting rid of the stenographic court reporters before anything like that happened.         

https://www.fox6now.com/news/darrell-brooks-freed-on-bond-before-parade-no-record-of-hearing

It is for this reason that the judicial branches of government should never, ever be allowed to make decisions regarding getting rid of stenographic court reporters.  There ought to be a law against it.

If the Indiana judiciate is as corrupt as the ones in Wisconsin, then by all means, move forward expeditiously with removing stenographic court reporters!” 

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