Unfinished Transcripts May Nullify Convictions

Valerie Barnes left her job 3 1/2 years ago, but her refusal to complete some final tasks could land her in jail and spring several felons from prison.

Barnes used to be a court reporter in the Arapahoe County courthouse. For three years, she has been unable -- or unwilling -- to finish transcripts of trials that are awaiting appeals in Colorado’s higher courts. Without the full trial records, the criminal convictions in the eight cases may be voided, which could free the defendants convicted of charges including child molestation and manslaughter.

A judge found Barnes in contempt of court last year for failing to complete the transcripts, dismissing the former court reporter’s contention that her ongoing battle with breast cancer prevented her from finishing the work. She was ordered jailed, but that sentence has been stayed while her attorney appeals the contempt ruling, arguing that the court was treating Barnes like a “slave,” in violation of the U.S. Constitution.

“No one can be compelled to work against their will,” said Barnes’ attorney, David Lane, in an interview. He argues that the 13th Amendment, which outlaws slavery, means that Barnes is under no legal obligation to finish the transcripts.

Meanwhile, another state appeals court will decide by Dec. 7 whether the convictions against the eight defendants should be voided because they do not have complete records of their trials. The district attorney’s office here says such a ruling would require it to retry the defendants, a cumbersome process that could be traumatic for the victims. The victim in one sexual assault case, for example, lives in Mongolia and would have to be flown back to Colorado to testify in a retrial.

Carol Chambers, the district attorney in Arapahoe County, which encompasses the suburbs southeast of Denver, called the matter “a very serious breakdown” in the legal system. She said Barnes was being irresponsible. “When you undertake an obligation, especially one that’s serious, you need to carry out your obligation.”

The case illustrates an Achilles’ heel of the criminal justice system -- its reliance on fallible humans to create a permanent record of legal proceedings.

Most court reporters type notes using a shorthand system, then convert them into a full transcript of proceedings when requested. An appeals court hearing the case of a defendant convicted of a crime needs a full transcript of the trial.

But court reporters occasionally make errors or lose notes that prevent them from completing transcripts.

In Florida in 2003, a woman convicted of drug possession won a retrial because the transcribing machine used by the court reporter in her case broke down, which garbled the notes. That same year in Charlotte, N.C., a court reporter’s notes were stolen from a courthouse, leading to a new trial for a man convicted of first-degree murder. And in 1998, another court reporter in Arapahoe County failed to finish a transcript of a case that was appealed. The district attorney’s office filed felony charges against the reporter, but the reporter moved to Virginia and was never prosecuted.

Many states have moved to replace court reporters with recording devices, arguing that machines are more reliable, and cheaper. But even digital recorders can cause problems. Last year, prosecutors found that a digital recorder omitted an hour of testimony in a murder case in Multnomah County, Ore., and several cases in Naples, Fla., had to be retried because recorders failed there.

Nonetheless, both Chambers and defense attorney Lane say the Barnes case demonstrates that courts should rely more on electronic recorders and less on court reporters.

Barnes had worked as a court reporter in Arapahoe County for 11 years when she left in March 2002 to become a clerk in U.S. District Court in Denver. She would later testify that she made the switch to avoid repetitive stress injuries from transcribing hours of testimony.

After she changed jobs, several of the cases Barnes had reported were appealed. Defense attorneys found that her transcripts were incomplete, and the court contracted with her on a per-page basis to produce them. Other court reporters say Barnes used an unusual style of shorthand that they could not interpret.

At the same time, Barnes was diagnosed with breast cancer and underwent aggressive chemotherapy and a double mastectomy. She finished at least one transcript, but said she was too ill to work for several months.

When she began to recover, the court asked her to read her notes into a tape recorder so other court reporters could transcribe from the tapes. She did for a while, but then stopped. Next, the court asked other reporters to try to decipher Barnes’ shorthand and forwarded those transcripts to Barnes so she could review them for accuracy. But she eventually stopped participating in that process.

During this time, Barnes continued working full time at the federal court in Denver. Prosecutors asked a judge to compel her to finish the transcripts, but Barnes testified that she was suffering memory losses from chemotherapy and painkillers, and could not interpret her notes.

“I’ve been saying from the very beginning that I wasn’t able to do this,” Barnes told Arapahoe County Judge Anthony Vollack at a hearing in November 2004. “I’ve been doing it because I’ve been harassed and forced and everything else. But I’ve said from the very beginning that I should not be doing these transcripts.”

Vollack did not believe that Barnes was medically incapacitated, citing her ability to hold down a full-time job, and found her in contempt of court. The case has been fought in the appellate courts ever since.

Defense attorney Lane said his client doesn’t want to go to jail or see convicted criminals go free, but pointed out that there was no contract that required her to finish the transcripts. “She did her best, and that’s all she can do,” he said. “She is an absolute wreck from all this.”

Meanwhile, the district attorney’s office has begun to contact witnesses in the eight cases, warning them that they might have to return for new trials. One case involves a man who was stabbed to death by his girlfriend during an argument. She was convicted of manslaughter in 2001, and Chambers, the current district attorney, was the prosecutor who tried that case.

If the woman is retried, Chambers said, her victim’s three daughters will have to testify again about what they witnessed and hear defense attorneys disparage their dead father.

“We have victims of very serious crimes. They’ve had their days in court, the defendants have had their day in court,” Chambers said.

“And we’re going to have to do this all over again.”