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.
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: