Glitch found in court tapings

Newly installed system in district courtrooms picked up private talks

Lawyers upset, question legality

April 13, 2002|By Dennis O'Brien | Dennis O'Brien,SUN STAFF

A new $2.7 million taping system being installed in Maryland's district courts has been operating with a glitch that has caused an uproar in legal circles and might be illegal.

It's been picking up private conversations.

The system, installed in the Glen Burnie district courthouse in October and phased into operation in eight other courthouses since, has been continuously recording everything within range of the microphones before and after court is in session.

State court officials acknowledge that before the system was shut down March 28, it picked up and preserved the private conversations of hundreds of lawyers, litigants and anyone else who entered one of the courtrooms.

Lawyers say the recordings might violate state wiretap laws and legal requirements guaranteeing that an attorney's conversation with a client is kept confidential.

The system automatically recorded from 7 a.m. to 7 p.m. in district courts in Glen Burnie, Annapolis, Hyattsville, Upper Marlboro, Rockville, Silver Spring, Salisbury and Catonsville.

District Court Chief Judge James N. Vaughan said that he ordered the automated systems shut off March 28, and that only open court proceedings -- when judges are on the bench -- are now being recorded.

The system was installed in Essex District Court on April 1, is scheduled to be installed in Towson District Court Monday and is due to be in place in all 107 of the state's district courtrooms by next March.

Vaughan said that the automated recordings are stored along with recordings of the traditional "open court" testimony on compact discs in each district courthouse. But he denied a request by The Sun for access to listen to the automated recordings, saying they are not public records because they were not made in open court.

"You can sue me for them," Vaughan said.

He said the system was purchased last year to improve sound quality and create easier access to recorded testimony in the 2 million cases handled each year by the state's district courts.

He said the continuously running recording system was intended as a backup system, in case clerks neglected to turn on the recording equipment when court began each day.

"The idea was to make sure all proceedings in a court were recorded," Vaughan said.

But lawyers say the recordings mean past conversations they assumed were private could become public, or at least available to the opposing side in a legal dispute.

"There's been such an uproar about privacy issues involved," said Calvin Jenkins, a Towson lawyer who is president of the Baltimore County Bar Association.

Legal experts say the system also may have violated state wiretap laws.

Jeff Messing, a Baltimore lawyer who recently won a case against a state agency over its use of telephone recording equipment, said state wiretap laws prohibit recording private conversations without the consent of all parties.

Police who conduct electronic surveillance need to convince a judge that there is evidence of criminal activity before they may use surreptitiously recorded conversations in court, he said.

"It sounds like the judiciary, which is supposed to be there to protect our civil liberties, may be involved in violating them," Messing said.

The system, purchased from CourtSmart Digital Systems Inc. of North Chelmsford, Mass., creates digital audio files that make it easier to store, locate and retrieve specific cases and can be reproduced on compact disc.

A CourtSmart official referred questions to the company's chief executive officer, who was unavailable yesterday.

Vaughan said the system has meant improved sound quality and quicker service for anyone willing to pay $15 for a compact disc of a court proceeding. Clerks in area district courts say discs are now available in two weeks. The older system's audio cassette recordings could take a month or longer, according to several lawyers.

Vaughan said that when he learned last month that the new recording systems were running continuously each day, he went to the Annapolis District Court March 27 to listen. He heard an Anne Arundel County prosecutor informally asking people who approached him what cases they were in court for that day.

"I was uncomfortable with it, with being able to hear what I heard," Vaughan said.

Vaughan said the new system is no secret. A press release was posted on the state courts' Web site March 11 and the new microphones are visible at both trial tables and in front of the judge, "where everyone can see them," Vaughan said.

He said that signs also are supposed to alert those entering courtrooms that their conversations may be recorded.

But there were no signs in the Glen Burnie courthouse this week.

"There should be something alerting people," said William Mulford, an Annapolis lawyer who was interviewed outside the courtrooms in Glen Burnie Thursday.

Laura Kelsey Rhodes, a Rockville lawyer who is president of the Maryland Criminal Defense Attorneys' Association, said the new recording system has inspired a flurry of e-mails and messages posted on computer bulletin boards set up by lawyers.

She said that during a short break in a trial Monday in District Court in Rockville, she began speaking to a client in Portuguese because she was concerned that their conversation was being recorded.

"Word recently has been getting out," she said.

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