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CALHOUN v. FOERSTER

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


March 20, 1987

Andre Calhoun, Bruce Brown, John B. Turner, William Johnson, Richard Guy, Carlos Thompson, on behalf of themselves and all others similarly situated, Plaintiffs
v.
Thomas Foerster, Cyril Wecht, Dr. William Hunt, Commissioners of Allegheny County and Robert Colville, District Attorney of Allegheny County; and Lester Nauhaus, Director, Office of the Public Defender of Allegheny County; and Joseph James, Gretchen Donaldson, Walter Little, Pittsburgh City Court Magistrates, Defendants

Ziegler, District Judge.

The opinion of the court was delivered by: ZIEGLER

CONSENT ORDER

AND NOW, this 20th day of March, 1987, the Plaintiffs and Defendant County Commissioners, District Attorney and Public Defender (hereinafter "County defendants") and their successors in the above-captioned action having reached agreement upon a proper manner in which indigent criminal defendants in the County of Allegheny and City of Pittsburgh are to be provided transcripts of preliminary hearings at no cost, in accordance with this Court's prior decision in Conley v. Dauer, 321 F. Supp. 723 (W.D. Pa. 1970), aff'd in part and remanded, 463 F.2d 63 (3d Cir.), cert. denied, 409 U.S. 1049, 93 S. Ct. 521, 34 L. Ed. 2d 501 (1972), it is hereby ORDERED that:

 1. This action is hereby certified as a class action pursuant to Fed. R. Civ. P. 23(b)(2) for purposes of injunctive relief. The class is defined as: "all indigent criminal defendants who have or will have preliminary hearings before District Justices of Allegheny County and Magistrates of the City Court of the City of Pittsburgh."

 2. All indigent criminal defendants represented at their preliminary hearings by the Allegheny County Public Defender shall, effective November 3, 1986, receive substantially verbatim transcripts of their preliminary hearings which shall be fully usable at trial for cross-examination and impeachment. Said transcript shall be promptly provided by the Public Defender to each defendant sufficiently in advance of trial to allow the defendant to participate in his or her own defense, and in no event later than the date of the pre-trial conference in Common Pleas Court.

 3. The Public Defender, consistent with the practice of the private bar in Allegheny County, shall obtain and provide for a verbatim transcript of preliminary hearings by having the testimony stenographically recorded by a certified court reporter in all cases where the Public Defender, in his discretion, determines that due to the nature of the offense charged and the testimony expected to be presented, a stenographically recorded transcript is required. In implementing this provision the Public Defender has established guidelines for use by assistant Public Defenders in determining when a stenographically recorded transcript is required. Attached hereto as Appendix "A" are the presently effective guidelines established by the Public Defender for this purpose.

 4. In other offenses, the Public Defender shall have the testimony recorded either by stenography or by an electronic recording device. Said device must be sufficiently accurate and reliable to be used in the acoustical conditions of the court rooms where preliminary hearings are held in Allegheny County.

 5. In order to prevent the testimony from being lost due to mechanical malfunction or otherwise, Plaintiffs and the County Defendants have proposed and shall comply with an order of President Judge Michael J. O'Malley of the Court of Common Pleas of Allegheny County, attached hereto as Appendix "B", directing that a District Justice or Magistrate who presides at a preliminary hearing shall simultaneously record or have recorded the testimony on a second accurate and reliable electronic tape recording machine. If the District Justice or Magistrate does not possess such a tape recorder, the Public Defender shall loan a tape recorder to the District Justice for the hearing together with a tape cassette. At the conclusion of the hearing, the District Justice or Magistrate shall return the loaned taped recorder as well as the tape cassette to the Public Defender.

 6. Within twenty (20) days of the hearing, the Public Defender shall transcribe the testimony from the tape recorded by the Public Defender. If gaps or other failures appear on this tape, then the Public Defender shall determine if the missing material is correctly recorded on the second tape recorded by the District Justice or Magistrate. If so, the Public Defender shall use this tape or portions of it to reconstruct a full transcript of the hearing.

 7. In the event that a portion of the testimony is missing from both tapes, then the Public Defender and District Attorney shall attempt to agree on and reconstruct, from notes or otherwise, the missing portion of testimony in a substantially verbatim fashion.

 8. If the Public Defender and District Attorney are unable to agree to the missing portion of testimony, this shall not overturn the earlier decision of a District Justice or Magistrate to hold the case for court. Instead, within ten (10) days of the discovery that a material portion of testimony is missing from both tapes which cannot be reconstructed by agreement, the witnesses at the preliminary hearing shall promptly be deposed at a mutually convenient time and place, limited only to the missing testimony.

 9. After a substantially verbatim transcript has been prepared in a manner other than stenographic recording by a certified court reporter, as above, the Public Defender and District Attorney shall file with the trial court a stipulation of record indicating that the parties regard the transcript as being legally equivalent in all respects to a stenographic transcript prepared by a certified court reporter and usable at trial in the same manner, including cross-examination and impeachment.

 10. The County Defendants, by agreement, shall pay damages in the amount of Two Hundred Fifty Dollars ($ 250) to each named party Plaintiff in full and complete satisfaction of Plaintiffs' claims for damages in this action.

 11. The County Defendants, by agreement, shall pay the amount of Eight Thousand Five Hundred ($ 8,500.00) Dollars toward the attorney's fees of Plaintiffs' counsel.

 12. This settlement represents a statement of the County Defendants' agreement to comply fully with the procedures established. This settlement does not represent any acknowledgment or confession of liability presently or in the past for any intentional or negligent acts bearing upon the creation or preservation of records of preliminary hearings. This settlement does not represent or acknowledge and, in fact, County Defendants continue to deny, that they have any power whatsoever to bind members of the minor judiciary or counsel, whether Public Defenders or otherwise as to their past, present, or future conduct bearing upon the administration of the courts of the minor judiciary, including the creation and preservation of records of proceedings in those courts.

 13. This Court shall retain jurisdiction of this action to monitor this Consent Order for a period of at least one year. Beginning with the date of this Order, the Court shall receive quarterly reports from Plaintiffs' counsel and the Defendant Public Defender on the effectiveness of the new system of ensuring substantially verbatim preliminary hearing transcripts usable at trial in all cases involving the Public Defender. If the parties are in compliance and the system achieves its goal for four consecutive quarters, then no further reports need be submitted. If the system is not successful or if there is evidence of noncompliance, then this Court shall schedule the matter for further proceedings to determine appropriate steps to ensure implementation of the remedy.

 APPENDIX "A"

 GUIDELINES FOR STENOGRAPHICALLY RECORDING PRELIMINARY HEARINGS

 The Public Defender, in exercising his discretion, consistent with the practice of the private defense bar in Allegheny County, has established the following guidelines for determining when a stenographically recorded transcript of preliminary hearings is required.

 In the following cases the assistant Public Defender at the preliminary hearing shall have the testimony recorded stenographically by a certified court reporter:

 

1. Homicide

 

2. Rape

 

3. Involuntary Deviate Sexual Intercourse

 

4. Aggravated Assault

 

5. Indecent Assault

 

6. Statutory Rape

 

7. Kidnapping

 

8. Robbery

 APPENDIX "B"

 In re: Directing District Justices and Magistrates to Record Hearings of Indigents

 C.A.D. 21 of Nov., 1986, Administrative Docket

 In the Court of Common Pleas of Allegheny County, Pennsylvania Criminal Division

 ORDER

 AND NOW, to wit, this 30th day of October, 1986, this Court taking note of Commonwealth v. Dean [348 Pa. Super. 1], 501 A.2d 269 (Pa. Super. 1985) and Conley v. Dauer, 321 F. Supp. 723 (W.D. Pa. 1970), aff'd 463 F.2d 63 (3d Cir. 1972) and Calhoun v. Foerster C.A. 70-1130 (W.D. Pa.) remanded at No. 85-3052 [780 F.2d 1014] (3d Cir. 1985), and pursuant to Rule of Criminal Procedure No. 141(c)(4), it is hereby ordered that, effective November 3, 1986, all District Justices in Allegheny County and all magistrates of the City Court of the City of Pittsburgh will operate, or cause to be operated by staff of said District Justices or Magistrates, a tape recorder to record the proceedings of preliminary hearings in which the defendant(s) are indigent and/or represented by the Public Defender.

 The equipment for recording said proceedings may be that of the District Justice or Magistrate, if available, or may be supplied by the Public Defender.

 The cassette of the recording made by the District Justice or Magistrate shall be considered a backup record of the proceedings and shall be delivered immediately following the hearing to the Public Defender. The simultaneous recording of the proceedings made by the Public Defender shall be the primary record and also shall be retained by the Public Defender. The Public Defender also shall supply all cassettes necessary to accomplish the above.

 The foregoing procedure is established in light of the court cases cited above and because in preliminary hearings of indigents in the past the only tape recordings of said hearings have been made by the Public Defender. On occasion, the tape recorders have malfunctioned, or for other reasons the tapes have been garbled, unintelligible or incomplete, leading to inadequate transcripts which can jeopardize subsequent court proceedings. The Court hopes to prevent these situations from developing by having the second tape recorder supplied by the Public Defender and operated by the District Justice or Magistrate or his or her staff.

 In furtherance of that aim, it is suggested that the district justice or magistrate give particular attention to maintaining order in the hearing room, (for example, making certain that only one person speaks at a time), thereby making more probable a satisfactory and intelligible recording.

19870320

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