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Of Note

Sloppy record keeping causing headaches in criminal appeals

By Glenna Whitley 

A missing court reporter's stenographic notes and tape of testimony in a 1994 criminal trial shed light on the haphazard and antiquated way that Dallas County court records are handled and stored, and the failure points up a little-noticed "triple-dipping" by county-employed court reporters, who can get paid up to three times for the same trial.

In mid-August, District Attorney Craig Watkins excoriated the county commissioners court for failing to adequately fund the county law enforcement system after clerks were unable to locate the notes taken by reporter Josie Massar during the 1994 trial of Michael Andre Reed. (Massar didn't return phone calls by press time.) Commissioners blamed Watkins' office for failing to properly manage his records department and hire competent people.

But whose fault is it?

Insiders say the problem is much bigger. The district attorney's office is only one of the many county departments that must keep records long-term. Sources in the records department describe a system in which no one person is responsible for the whereabouts of such vital records.

"The county is so decentralized," says one senior county official. "You hardly ever have anyone who is the buck-stops-here person. This is a problem created and masked by a decentralized system. It's hard to pinpoint whose responsibility something is, and that protects people."

Reed was convicted and sentenced to 45 years in prison for killing Carlos Martinez, 16, in the parking lot of a convenience store in Northwest Dallas. His efforts to appeal his case have gone on for more than a decade, with screw-ups by his first trial attorney, an appellate attorney and the prison mail system.

Reed finally persuaded a judge to appoint attorney Robert Udashen to handle his appeal. Udashen contacted Massar, the court reporter who had recorded the trial. "She just took her stenographic notes and put them in storage," Udashen says. "She went to the records facility and couldn't find them."

Typically transcripts are not prepared except in cases of appeal or unless they're requested by attorneys. Defendants have 30 days to appeal their case; Udashen says it's very unusual for a transcript to be requested more than a decade after the initial trial.

"It's the first case I've had in 30 years where the complete trial record is missing," Udashen says. And without a record of what was said during trial it is impossible to properly appeal Reed's case. "That's why the law says that if the record of the trial is missing due to no fault of the defendant then he's entitled to a new trial." Reed now will get a new trial.

Court reporters are hired by judges and paid a hefty salary by the county; all but one court reporter for Dallas County courts earn between $80,000 and $89,000 a year. That reporter makes $75,000 a year. They are responsible for their own records. But court reporters don't fall under any one department.

"The court reporters do not have one person who governs over them and makes sure things are done the same way," says Donna Sherbet, records management officer. Ed Engebretsen at the District Clerk's Office says that court reporters usually store their materials in their offices at the Frank Crowley Courthouse or at home, boxing them up and sending them to the District Clerk's Office or a county storage warehouse when their own storage fills up. (Paper stenographic notes take up a lot of space; now most court reporters use computers that store digital files.) According to another clerk, it's rare for court reporters to give their notes to the District Clerk's Office for storage. If they do, the notes become public record.

"You are looking at three sets of records," Sherbet says. "The court reporter is required to maintain his or her own records. The case record is kept by the District Clerk's Office until the case is closed. Then it is boxed and sent to a warehouse and stored. The same thing happens to the DA's working file. District Attorney Craig Watkins is his own records manager. If it's not on their site and they haven't archived it, that's when they come to us."

In the Reed case, Sherbet says, a box that was supposed to contain the district attorney's "working files" from 1994 had been sent to the warehouse empty.

One person in each county department is designated responsible for records, Sherbet says. When a record is needed from the offsite warehouse, which stores 161,000 boxes, that person contacts the clerk, who sends the file to the requester.

Out of any 100 criminal cases, only one or two will go to trial. Of those, only a few proceed to full court proceedings. Criminal judges usually handle one or two trials a week. After the trials, court reporters are paid additional fees to transcribe those notes; most court reporters do their transcriptions nights and on weekends, but some also do them at work if they have no trial scheduled. Udashen estimates that a transcript of a one- or two-day trial costs $1,000 to $1,500.

"They charge by the page," says Udashen. "I recently got an estimate of $5,000 for a week-long trial." Capital murder trials can last weeks if not months.

The fees are paid directly to the court reporter by the defendant's attorney. In cases of indigent criminal and family court defendants, Dallas County pays the fee, on top of what has already been paid to the court reporter in salary. (Many defendants in capital murder cases are indigents, so the county pays.) They can also charge to make copies of already-transcribed trials.

The capital murder case of Darlie Routier illustrates another problem. When inaccuracies and mistakes were noticed in the transcript of Routier's trial, after she was convicted of killing her two sons in 1996, court reporter Sandra Halsey was held in contempt of court, jailed and ordered to pay $32,265 to fix the transcript. Her license was revoked. In another case, court reporter Mary Belton was jailed after missing three deadlines to complete the transcript.

In still other cases, attorneys have discovered that the court reporter in question has retired or died since the trial and no notes have been filed with the county.

"We may need to look at the storage and transfer of records on a global or countywide scale to insure that the needs of all county departments are being met," says Greg Allbright, chief deputy district clerk.