Let’s Go To The Audiotape

The Georgia Supreme Court affirmed an order denying a law firm audiio copies of court proceedings

The record shows that in the course of representing criminal defendants in two cases, an attorney at the Firm participated in three hearings before Judge Emerson in June and October 2015. Each of these proceedings was open to the public and audio-recorded by court reporter Melissa Cantrell, who subsequently transcribed the hearings. On October 8, 2015, the Firm sent an email to Cantrell requesting copies of the audio recordings of the three hearings. On October 9, Cantrell responded, stating that she had consulted with Judge Emerson, who advised that the Firm should file a motion in order to make a formal request for the recordings. Later that day, the Firm responded by email to Cantrell (and copied to Judge Emerson) that “no such motion is needed, and any instruction that these tapes be withheld until a motion is filed (and presumably ruled upon) is contrary to the Court’s rules and the long-established black letter law in Georgia regarding the public’s access to court records[,]”which the Firm argued included the requested recordings. On October 11, 2015,Judge Emerson issued an order sua sponte in each of the two underlying criminal cases; the order allowed the Firm to listen to the recordings but expressly did not allow the Firm to make copies of the recordings or require Cantrell to do so.

Mandamus was not available to obtain the copies

Although Judge Emerson entered the orders in two criminal cases in which the Firm was not a party, his orders denying the Firm the ability to copy the audio recordings was an adverse ruling against the Firm that the Firm could have appealed. The Firm makes no claim that Judge Emerson’s order was unclear or ambiguous, nor does the Firm seek any guidance regarding the application of that order. The Firm may disagree with the merits of that ruling, but it may not use a declaratory judgment action to collaterally attack the decision specifically adjudicating the Firm’s claim. 

The case was covered by the Atlanta Journal-Constitution in February 2017

The Georgia Supreme Court on Monday heard arguments as to whether members of the public may obtain copies of audio recordings of trials and hearings made by a court stenographer.

The case involves a lawsuit against Douglas County Chief Judge David Emerson and his court reporter Melinda Cantrell, who like most stenographers records court proceedings to aid in her transcriptions. The suit stems from cases tried before the judge by criminal defense attorney Ashleigh Merchant in 2015.

Merchant said her law firm wants recordings from two trials before Emerson in 2015. One was a racketeering case in which she said the judge became angry and hostile toward her and the other was a murder case in which Emerson addressed her in a condescending manner.

“You can’t tell his demeanor and tone in a cold transcript,” she said. “That just doesn’t come across.”

Merchant and her husband and law partner, John Merchant, asked Cantrell for a copy of her recordings. Cantrell deferred to Judge Emerson. After Emerson gave the Merchants the opportunity to listen to the audio recordings but refused to let them make copies, the Merchants filed suit.

During Monday’s arguments, Justices David Nahmias and Nels Peterson indicated there appears to be no question that the audio recordings are official court records. But a 1992 state Supreme Court ruling on the issue merely says such recordings are open to “public inspection,” and inspecting a recording doesn’t necessarily mean you can duplicate it, the justices said.

“The right to inspect would be valueless without the right to make copies,” John Merchant responded. He added that no motion had been made to place the recordings under seal and, during the hearings in question, anyone had the right to walk into the courtroom and listen to what was going on.

State attorney Russell Willard, who argued on Emerson’s behalf, said the case is not about the denial of court records because the Merchants can get official transcripts of the proceedings in question. Willard also contended the Merchants didn’t file a proper motion before Emerson to obtain a copy of the recordings.

The court’s ruling, which is of interest to the media, is expected in the coming months.

The state high court will soon hear arguments in a similar case involving the popular “Undisclosed” podcast, which is seeking access to a court reporter’s recordings of a 2001 trial in Floyd County. (The first season of The Atlanta Journal-Constitution’s “Breakdown” podcast relied heavily on court reporters’ recordings of a trial in Haralson County and a subsequent court hearing in Telfair County.)

The Georgia First Amendment Foundation filed a legal brief before the state Supreme Court in support of the Merchants’ position.

The court recordings case took on an unusual twist Monday because Emerson himself recently sat as a substitute justice in a high-profile case involving the state’s tax credit scholarship program. Emerson replaced a justice who recused himself from the scholarship arguments.

This meant Emerson was sitting as a colleague to the court’s justices on Jan. 23, just weeks before the justices heard arguments on a lawsuit in which Emerson was a defendant.

State Supreme Court spokeswoman Jane Hansen said the court keeps a list of judges who volunteer to sit in place of justices who withdraw from cases. Emerson was picked to hear the tax credit case because his name was next in line on a list kept by the Clerk’s Office. The court screens visiting judges for potential conflicts, but only those involving cases they’re hearing at the time, she said.

As for the court’s justices, Hansen said, “Regardless of whether they know a judge, they call it as they see it, based on the law.”

The fact that Emerson recently sat on the same court that’s now hearing a case in which he’s a defendant is “probably not legally assailable,” University of Georgia law professor Ron Carlson said.

“But does it look to John Q. Public to be a questionable situation?” Carlson asked. “It’s probably a good idea in the future to separate a guest judge’s appearance on the court from the time a case is coming up where he’s an actual defendant.”

(Mike Frisch)