The Atlanta Journal-Constitution’s podcast “Breakdown” is a good listen, but it’s more than just that. Just ask Justin Chapman.
In its first season, "Breakdown" focused on the case of Chapman, a Bremen man serving a long sentence for killing his neighbor in an intentionally set fire. The podcast made liberal use of archival audio, including courtroom recordings gathered by host Bill Rankin, and cast serious doubt on Chapman's guilt.
After the release of the first few episodes, the wheels of justice began turning and eventually Chapman was freed and granted a new trial. Last year, the state announced the evidence against Chapman had been so completely discredited that he would not be retried.
Today it is not clear “Breakdown” could make that kind of impact.
In an opinion released the day before Halloween, the Georgia Supreme Court unanimously decided recordings of trials are not "court records" and need not be made public.
The decision was prompted by another legal affairs podcast, "Undisclosed," whose producers pressed the Georgia judiciary hard to get copies of recordings of a 2001 murder trial in Floyd County, the subject of an entire season of the show.
“The ownership of these records is critically important,” James Cobb, Undisclosed’s Atlanta-based attorney, told the justices during oral arguments this spring.
“If these types of records are not court records,” he said, “I don’t know what else they could be.”
Going back to English common law, the justices decided that citizens can inspect and copy court transcripts, but audio is not similarly open.
It’s the kind of decision that crashes against the rocks of common sense. Citizens have no right to the recorded sounds of their government at work, but they are welcome to the less-accurate translation typed out at great cost by a court reporter days or months later?
Even Justice Nels Peterson, who authored the opinion, appeared to shrug at the internal problems created by this line of reasoning.
Peterson said the court’s decision is based on the rules governing Georgia’s courts, specifically Rule 21 which says court records are open to public inspection. Peterson wrote that the rule only applies to records officially filed with the courts, and audio files are not among those records.
The justices, he wrote, “simply determine what the text of the rule meant at the time it was adopted, and apply it accordingly, without considering whether we like the policy implications that meaning may have.”
Translation: Help, I’m stuck in an originalist box!
If Peterson is correct, how would Brown v. Board of Education be decided today by this court? Interpreting statutes with absolutely no regard to the policy implications may be sound law for a conservative jurist, but it's a suicide note to the public's faith in government.
In the kind of ironic twist you cannot make up, the video of oral arguments on this very question of whether audio from Georgia courts is public is available on demand on the Supreme Court's own website. The high court does this by choice and because it is the right thing to do. Other courts around the nation are making similar changes, which makes this opinion all the more troubling.
A hard line on the public’s right to know
The decision in Undisclosed LLC v. The State is a strange one from start to finish.
According to briefs filed by Undisclosed’s lawyers, the podcast had been granted permission to make copies of the trial tapes but were delayed when they discovered the tapes were four-track audio and they needed specialized equipment to copy them. By the time they had the equipment, the court had changed its mind and agreed to allow lawyers to listen to the tapes but not make copies.
Undisclosed filed briefs demanding copies of the tapes, but the Floyd County District Attorney argued that Georgia court rules only allowed citizens to look at records, not copy them. The superior court agreed.
To their credit, this shell game obviously concerned the supremes, who offered to settle the matter. But the justices came to the exact opposite conclusion of the lower court: Citizens have a common law right to view and copy court records, but the public has no implicit right to listen to the tapes.
“Undisclosed” recorded an episode dedicated to the fight for the records, including a discussion among the attorneys as they prepared for oral arguments before the Supreme Court.
“The question that always comes to my mind as I’ve thought about it over the last couple of weeks is, why?” Cobb said in the episode. “Why does the government care about whether we have a copy of the audio recording?”
Shielding judges from public scrutiny
There are two reasons: Legal and human.
Legally, the Supreme Court has an interest in interpreting the rules governing how courtrooms operate so that justice is evenly applied. Unfortunately, this decision doesn’t fix anything.
The “Undisclosed” opinion does not forbid the release of audio from open court. It just classifies the recordings as something other than official court records. Armed with this decision, some judges will use the ruling to bar the release of audio, while other judges will continue to make recordings public when asked. Likely, some judges will grant requests from some parties but deny requests from others.
This unevenness is not helped by the fact that some court reporters are government employees, while others are independent contractors who can pick up their tapes and go home.
The second reason why the judges wouldn't want to make the audio from their courtrooms public is human. Podcasts like "Undisclosed" and "Breakdown," combined with efforts like The Innocence Project, are exposing some of the worst cases of injustice in American courtrooms and it is an embarrassment.
A judge who receives a request from one of these programs for audio of a trial might reasonably be concerned about how the court will fare or what personal embarrassment they might face. That is not what this decision is about but it does provide a shield against public access at the superior court level. And that’s a shame.
With this opinion, the Georgia Supreme Court does not intend to shield judges from public scrutiny or make injustices harder to correct, but it does that just the same.
There are ways to ensure courts continue their trajectory toward more transparency. State lawmakers have the power to change the law explicitly classifying audio from courtrooms as official “records.” In his opinion, Peterson appears to encourage that solution. But members of the House and Senate judiciary committees, who often are lawyers, are reluctant to dictate to judges how to manage the public’s courtrooms.
Will they have the courage and accept the court’s invitation to address the “policy implications” of this ruling?
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