Appealing An (Inaudible) Trial
A deficient trial record has led the Washington State Supreme Court to remand a conviction for an effort to reconstruct the record for meaningful appellate review
In August 2020, Waits was tried and convicted of child molestation and attempted child molestation, both in the first degree. The underlying facts of these conviction are not in dispute. Instead, the issues for this court’s review arise from the bad acoustics of the building where the trial took place—a former church that was used to accommodate social distancing during the height of the COVID-19 pandemic.
Over the course of Waits’ two-day trial, the transcription contained over 2,000 “inaudible” notations from the judge, lawyer, jurors, and witnesses. The transcriptionist was later able to fill in some of the gaps, but about 1,500 inaudibles still remain.
The Court of Appeals had set out a reconstruction procedure
Waits sought emergency review here. He objected to the Court of Appeals’ reconstruction procedure. The State offered no response. At oral argument before Commissioner Michael Johnston, the State was allowed a brief comment and indicated it was not opposed to review, citing the need for definitive guidance on the process of recreating a record. Commissioner Johnston granted review. The Washington Appellate Project submitted amicus curiae briefing in support of Waits.
Contentions
Waits contends that the federal constitution places the burden of reconstructing a lost or damaged record on the State rather than, as the Court of Appeals held, on the criminal appellant. We agree in part.
As to the State
We reject this argument. First, it assumes the conclusion that appellate attorneys (who are almost always different from trial counsel) will know on what portions of the record to focus their attention, ignoring completely that an adequate record is first necessary for an appellate attorney to identify any such issues for appellate review. Next, it is not inevitable that placing the burden where it constitutionally belongs (on the State) will result in a record for every single hearing. A verbatim report of proceedings generally allows an appellate attorney to review the entire record (of every hearing), identify issues, and transmit those relevant portions of the record to the reviewing court. When a verbatim report is unavailable and an alternative is necessary, a narrative or agreed report of every hearing may be necessary in order to provide an indigent defendant with a record of sufficient completeness to allow for adequate and
effective appellate review. Mayer, 404 U.S. at 194.
Regarding the remedy, the State concedes that Waits’ originally proposed process is “the most viable.” Br. of Resp’t at 4. We therefore remand the case to the trial court for the parties to attempt reconstruction, with the State undertaking its constitutional duty to lead the effort and recourse to the trial court if the parties disagree or third parties are reluctant to participate as required by the RAPs and our case law.
Justice Yu concurred
“the State is responsible” should be read to mean that the costs of record reconstruction must be paid at public expense by the state government. Moreover, to allow for an expedited process, courts should promptly approve the costs when reconstruction pursuant to RAP 9.3 and 9.4 is deemed necessary. For this reason, I respectfully concur.
(Mike Frisch)