As Florida courts move into the digital age, many trials and hearings are being recorded with equipment so sensitive it picks up every peep and bleep in the courtroom — including whispers that were meant to stay private.
So on Monday the Florida Supreme Court will hear arguments about a proposal that would keep these recordings private, except in cases in which a circuit's chief judge agreed to release them.
The proposal is designed to make sure so-called privileged conversations — such as strategy talks between defense lawyers and their clients — stay private.
But public defenders and media groups say the plan violates the state constitution and flies in the face of Florida's overall goal of keeping the court system open.
"I'm opposed to anything that restricts public access," in this way, said Clearwater attorney George Tragos, a member of the statewide committee that debated and ultimately approved the proposal.
Ever since the days of quill pens, the court system has kept official records of its proceedings. For years, specially trained stenographers called court reporters handled the job, and they are still a key to the process.
But technology has allowed Florida courtrooms to switch on microphones and make recordings — first with tapes, and now with digital equipment. Thanks to these recordings, human stenographers don't need to come to every hearing. Instead, they can use the recordings to transcribe proceedings on an as-needed basis, saving time and money.
But what happens when a man accused of a crime mutters a bit too loudly with his attorney about their courtroom strategy? Keeping these types of discussions private is a fundamental principal of American justice.
"You've got attorneys and clients having conversations that are not meant to be part of the public record," said Robert Morris, chief judge of the Pinellas-Pasco Circuit, where a version of the rule has been on the books for a couple years.
A human court reporter is smart enough to know such a conversation is not part of the official record, even if she or he hears it. Therefore it wouldn't be included it in the transcript.
But a microphone would record the comment. The rule is designed to keep it private.
"It allows us to protect the privacy interest," while still making the official record of the trial open to the public, said Bob Bennett, a circuit judge based in Venice who heads the statewide commission that developed the proposal.
The state public defender's association opposes it, urging the Supreme Court to presume that "electronic recordings of proceedings in open court are public records, freely available to counsel or the public."
Pinellas-Pasco Public Defender Bob Dillinger says the proposed rule allows chief judges to decide whether defense attorneys have access to the recordings, which they might need to properly defend their clients.
"Don't tell me it's for my protection and then I can't get it," Dillinger said.
He agreed the microphones are extra-sensitive, and he doesn't want them to record private attorney-client conversations either. But that's a problem best solved by technology, not a rule of judicial administration, he said.
The First Amendment Foundation, representing most of Florida's daily and weekly newspapers and others, says the rule runs counter to the state's strong tradition of openness in government. It says the changes "stand in direct violation" of the state Constitution.
Only the Florida Legislature has the right to make changes like this one, said lawyers representing media such as the Tampa Tribune, WFLA-TV, and the New York Times Regional Newspaper Group, who filed comments with the Supreme Court. They said "the proposal undermines fundamental transparency principles that this Court has always served in making its proceedings and records publicly accessible."
Curtis Krueger can be reached at email@example.com or (727) 893-8232.