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Inadvertent eavesdropping worries defenders

Public defenders say electronic reporting could betray private conversations between attorneys and clients.

By CANDACE RONDEAUX
Published January 7, 2006

LAKELAND - It's a defense attorney's worst nightmare. A client on trial for murder suddenly

leans over and whispers to his attorney: "I did it." And a court reporter accidentally records the moment, turning a private conversation between attorney and client into a public murder confession.

The scenario hasn't happened, but the Hillsborough Public Defender's Office told three 2nd District Court of Appeal judges Friday that electronic reporting technology at the county courthouse might make it possible. In an oral argument before the higher court, assistant public defender John Skye asked the panel of judges to remedy the problem, saying the electronic system could inadvertently record legally protected conversations that aren't part of courtroom proceedings.

"I think that the idea that once you enter a courtroom in Hillsborough County you give up any right to privacy is an extraordinary proposition," Skye said.

Friday's hearing was the latest in a monthslong tug of war between Hillsborough County Chief Judge Manuel Menendez Jr. and Hillsborough Public Defender Julianne Holt over the the use of digital recording technology at the county courthouse. Six months ago, Holt asked the 2nd DCA to find a solution. She and others have complained that defective recordings and tapes of private conversations threaten the integrity of the justice system.

Digital recorders are in 27 Hillsborough courtrooms. Microphones placed around the courtroom feed audio into a computer, while human monitors annotate the input.

Complaints about Hillsborough's system arose in May after it was discovered that a switched-off microphone botched records in one defendant's case and resulted in a mistrial.

Menendez says the technology works, arguing that it cuts down on transcription time and the cost of keeping human court reporters on staff. In August, he filed papers with the 2nd DCA saying he had solved the problem. Under courthouse rules, anyone with access to the recordings or transcripts is barred from sharing the contents of anything other than judicial proceedings unless there is a court order calling for such conversations to be revealed.

On Friday, however, 2nd DCA Judges Chris W. Altenbernd and Charles Davis expressed skepticism about the chief judge's fix, saying the technology is fraught with logistical and legal flaws.

"Part of the problem is that the administrative order cannot be specific enough to ensure microphone placement and to ensure that improper recordings don't take place," Davis said.

Hillsborough County court counsel David Rowland said the technology allows attorneys to turn off microphones when they don't want their conversations to be recorded. He argued that there was no evidence that the system had jeopardized attorney-client privilege.

"The likelihood of that happening is close to nil," Rowland said.

Davis and Altenbernd were not convinced. Under Florida law, it is illegal to record conversations without consent from all parties or a direct court order. Both said they worry that warning signs posted outside courtrooms with digital systems would not provide enough legal cover if a citizen challenges the legality of the recordings.

"You could end up with hundreds of lawsuits against the 13th (Hillsborough) Judicial Circuit," Altenbernd said.

DCA Judge Douglas A. Wallace reserved his skepticism for Skye, raising an eyebrow at the assistant public defender's half-joking suggestion that the courthouse scrap the electronic system in favor of old fashioned court reporters.

The judges did not issue a decision Friday and it could be weeks or months before a ruling is made.

Candace Rondeaux can be reached at 813 226-3337 or rondeaux@sptimes.com

[Last modified January 7, 2006, 01:12:01]