Video Courtrooms Increase--But so Do Pitfalls : Law: Trailblazing method of replacing paper with video has created new ways for the justice system to go afoul. For example, a judge accidentally taped over previous testimony.

Judicial mistakes come in almost inexhaustible variety, but Judge Ellen B. Ewing found a novel one: She erased the only record of eyewitness testimony in a manslaughter case.

Ewing is the chief judge of the Louisville circuit courts, the only major court system in America that has completely eliminated paper and gone to videotape for trial transcripts.

When she forgot to turn off the videotape during a noon recess soon after the system was installed in 1985, the cameras whirred steadily as she ate lunch, then automatically rewound and accidentally taped over the morning’s record with new testimony in the afternoon.

Ewing’s inadvertent erasure represents only one of the perils of video courtrooms, which have spread from Kentucky to 60 courtrooms in 11 states in the last five years. Judges have forgotten to turn on the cameras, testimony has been inaudible, appeals have taken months to prepare as lawyers struggled with unfamiliar video records and court reporters have lost their government jobs. But the use of video transcripts is growing dramatically from Maryland to Hawaii.

“I don’t feel as if any system is perfect,” said Judge Laurence Higgins, who has been on the bench 14 years, “but this is the greatest thing that has happened to me as a trial judge in my lifetime.”

Kentucky, having worked out many of the bugs in its trailblazing system, preserves the official record of 40% of all trials on videotape. It saves money, provides faster service and more accurate transcripts, according to Kentucky Chief Justice Robert F. Stephens. The number of video courts is growing as fast as Kentucky finds $50,000 per courtroom to install the equipment.

In Kentucky courts where it is used, videotape provides the only official record; when a case is appealed, the appellate lawyers hand the state Supreme Court tape, not paper.

Virginia has a pilot project under way in one courtroom in Roanoke, and Maryland has installed cameras in the Prince Georges County circuit court of Judge Darlene Perry. The District of Columbia is not using video. Nationwide, four federal courts are expected to begin an experimental program within weeks.

The National Center for State Courts, after an exhaustive survey, concluded that “video recording is a viable method of court reporting that compares favorably with traditional court reporting.”

But as a steadily growing number of state and federal courtrooms are wired for cameras, some appellate lawyers and judges question whether videotape is too time-consuming and cumbersome to review, and court reporters--fighting hard to save their jobs--are demanding that the supposed advantages of video be seriously examined.

“If a court is having personnel problems, just bringing in a machine is not a creative approach,” said Marshall S. Jorpeland, communications director of the National Shorthand Reporters Assn. “Video is just another tool, it looks great and sounds fantastic, but 50 years from now reporters will still be needed and courts will still have the human element involved to make sure everything’s working.”

To be sure, there have been problems. Curtis Clay, convicted of slaying his live-in girlfriend in Lexington, Ky., won the right to a new trial in 1989 when courtroom videotape ran out unnoticed while he was being questioned by his lawyer and cross-examined by prosecutors. The judge ruled that a reconstruction of his testimony did “not constitute a record of sufficient completeness for appellate consideration.”

U.S. 6th Circuit Court of Appeals Judge Gilbert S. Merritt called his first experience handling the appeal of a burglary conviction using a Kentucky videotape transcript a “dismaying encounter.” He said it did not provide an “adequate basis for review . . . it was marginally audible.”

Because of the lack of a written transcript, “the parties could not engage with the bench in resolving simple factual questions about what happened at trial,” Merritt said. “Oral argument about the events of the trial became, at times, an exercise in futility.”

“I think we jumped into this a little too soon,” said Kentucky Court of Appeals Judge Charles B. Lester. “I think this can be developed eventually.”

Right now, however, he said: “It takes a lot more time to sit and watch a trial than to scan a typed transcript. . . . It has shifted costs up to our level; we are paying lawyers to sit and watch television. We just have to grind through and waste an awful lot of time.”

Further, Lester said in an interview, because the voice-activated system focuses on the loudest noise, “every time a spectator walks in, I get a beautiful segment of doors. I could prepare quite a beautiful ad for doors, every kind of door that exists in a trial courtroom.”

Ewing, in accidentally erasing testimony, provided novel grounds for appeal. But the Kentucky Supreme Court refused to grant a new trial, saying a narrative statement reconstructing the record from trial notes was sufficient to give the convicted man a “full and fair appellate review.”

Kentucky officials say updated equipment in the voice-activated system has eliminated many of the mechanical and sound problems. Human error has been minimized, they say, by new devices that prevent erasures and alert the courtroom audience when the cameras are not operating by the installation of two lights on the front of the judge’s bench. Even so, the Curtis Clay case still occurred.

“My feelings have changed over the years,” said Frank Heft, chief of the appeals division of the Public Defender office in Louisville. “In the beginning there were a lot of technical problems (and) it was particularly difficult hearing bench conferences. Most technical problems are now resolved, it is rare. . . . The biggest problem is the time involved in reviewing transcripts. We’ve adjusted.”

Three factors fuel the move to video--money, time and convenience. The National Center for State Courts found that Kentucky, which paid low court-reporter salaries before the introduction of video, reduced court reporting costs by 15% in actual dollars over a 4-year period, not counting the fact that salaries would normally have increased with inflation over the period. The state has spent the savings on video equipment for new courtrooms and hiring law clerks to help the judges.

Other states, which have kept more detailed cost records, say video-recording costs are “roughly one-half as much as traditional reporting,” according to the National Center for State Courts.

Court reporters say both costs and delays have merely been shifted around among the parties involved in litigation. “Court reporters are much less expensive” than video, said Laura Kogut, immediate past president of the Kentucky Shorthand Reporters Assn. If a case is appealed, “you’re paying attorneys $150 hour to watch TV.”

Court reporters say that instead of having to wait for transcripts to be prepared, delays have been shifted to the appeals process as attorneys take longer to study video records to prepare their briefs. “Attorneys have been cited by the (state) Supreme Court for not getting their briefs in in a timely matter,” said Teri Hockersmith, a Louisville court reporter.

Higgins said Kentucky became a trailblazer in courtroom video because “necessity is the mother of invention.”

Higgins said he volunteered to have cameras installed in his courtroom and turned them on one morning after he had delayed a trial for three days because of the absence of a court reporter. It was not the first time video recording had been tried--it had been started and abandoned in Ohio and Tennessee--but new, unobtrusive, inexpensive equipment that could be operated by a judge made it a more attractive proposition.

“It wasn’t done out of spite or meanness,” he said.