|
In the Criminal District Court
No.3
Dallas County, Texas
| STATE
OF TEXAS |
AFFIDAVIT
OF FACT |
|
AFFIDAVIT OF SUSAN SIMMONS
BEFORE ME, the undersigned authority,
on this day personally appeared SUSAN SIMMONS, who,
being by me duly sworn on her oath, stated the following:
"My name is Susan Simmons. I am the official court
reporter who certified the new record in Darlie Routier
v. State of Texas, No. 72,795 (Tex.Crim.App.). I swear
under penalty of perjury that all of the assertion of
fact in this affidavit are true to the best of my knowledge
and belief.
MY EXPERT OPINIONS ABOUT SANDRA HALSEY'S
WORK PRODUCT AND RECORD
Ms. Halsey Knowingly Signed a False Certificate
on Her Record
I was present when Sandra Halsey testified at the hearing
to determine whether her court reporter's license should
be revoked. I recall that Ms. Halsey testified, 'I felt
at the time I filed the record there was going to be
mistakes in it.' I also remember that Ms. Halsey testified
that she lied to Judge Francis about the existence of
audio tapes of the Routier trial because she feared
that those tapes could be used to expose a mistake in
her record that would require a new trial for Ms. Routier.
Given Ms. Halsey's testimony and everything else that
I know about her work in this case, it is my opinion
that she knowingly signed a false certificate on her
record.
Ms. Halsey Engaged in Unprofessional Conduct
In my opinion, based on Ms. Halsey's testimony at the
license revocation hearing and my knowledge of her work
in this case, she engaged in three kinds of unprofessional
conduct prohibited by TEX.GOV'T CODE ANN. §52.29(a)
(9) as implemented by the Texas Standards and Rules
for Certification of Certified Shorthand Reporters,
Section IV, B:
-
fail to deliver a statement of facts to a court
in a timely manner as determined by a court order;
-
produced an inaccurate transcript or statement
of facts;
-
produced an incomplete transcript or statement
of facts without a court order to do so.
Ms. Halsey Engaged in Unethical Conduct
In my opinion, based on Ms. Halsey's testimony at the
license revocation hearing and my knowledge of her work
in this case, she violated the following rules of ethics
that were adopted by The State Court Reporters Association
and the National Court Reporters Association:
Be fair and impartial toward each participant in
all aspects of reported proceedings;
Guard against not only the fact but appearance of
impartiality;
Maintain the integrity of the court reporting profession.
The Accuracy of Ms. Halsey's Record
In my estimation, I am at least 20,000 changes in the
text of the hard copy of the Halsey record that involved
the substitution, addition or deletion of a word rather
than a mere correction of punctuation, spelling or grammar.
When I testified at a previous hearing in this case,
I characterized the main flaw in the Halsey record as
pervasive 'editing' problem. That testimony was accurate,
but it requires some explanation. 'Editing' is a term
of art that I used to describe all of the changes in
the record that I made by listening to the audio tapes.
The term includes changes of substance as well as changes
of grammar, spelling and punctuation.
If the original English translation of the word in
Halsey's steno notes was substantively different than
the audio tape, it is fair to say this difference was
due to Halsey's inaccurate key stroking of that word.
In my opinion, Ms. Halsey's stenographic notes cannot
be certified as true and correct unless they are corroborated
by an audio tape of the proceedings.
THE UNCERTIFIED 53 PAGE ENGLISH TRANSLATION
OF HALSEY'S STENO NOTES IN VOLUME 10 OF THE RECORD
SHOULD BE REMOVED UNLESS THE COURT ORDERS ME TO
INCLUDE THOSE PAGES
I refuse to certify the reporter's record of the proceedings
that were conducted on the morning of October 21, 1996,
because I was not given an audio tape of those proceedings
and I did not believe that Ms. Halsey's uncorroborated
stenographic notes are sufficiently trustworthy to certify
that they are a true and correct transcription of what
occurred in court.
I was unwilling to certify Ms. Halsey's uncorroborated
stenographic notes because there were discrepancies
between her notes and the hard copy of her record of
the proceedings which strongly indicate to me that she
used an audio tape to edit her record that was subsequently
lost or destroyed.
At a prior hearing in this case, I testified that the
English translation of Halsey's stenographic notes of
the proceedings on the morning of October 21, 1996,
did not have any gaps and they appeared to flow smoothly.
That testimony was accurate, but I did not intend to
suggest that I could vouch for the accuracy of her notes.
It is possible to type a totally inaccurate record that
flows smoothly and has no gaps in it.
I physically included the uncertified English translation
of Ms. Halsey's stenographic notes of the proceedings
on the morning of October 21, 1996, in Volume 10 of
the record because it was my understanding that Judge
Francis wanted me to do so.
THE PARENTHETICAL DESCRIPTION OF NON-VERBAL
FACTS SHOULD BE DELETED FROM THE RECORD BECAUSE
I CANNOT CERTIFY THAT THEY ARE TRUE AND CORRECT
The certificate that I signed at the end of each volume
of the record appears to vouch for the accuracy of everything
in it, including parentheticals which describe non-verbal
answers to voir dire questions and the presence or absence
of the attorneys, the defendant, the jurors and the
judge. Those parentheticals should be deleted from the
record because I cannot and did not intend to certify
that they are true and correct.
I believe, based on my conversations with Judge Francis,
that it was not part of my duty to review the parentheticals
in the Halsey record.
I could not certify that any of Ms. Halsey's parenthetical
descriptions of non-verbal facts are true and correct
because those facts were not recorded on the audio topes
and her uncorroborated stenographic notes are not always
trustworthy.
I have no opinion about whether Mr. Halsey's parentheticals
are, in fact, inaccurate because I did not observe the
trial.
MY UNDERSTANDING OF MY AUTHORITY TO CERTIFY
THE RECORD OF A TRIAL THAT I DID NOT ATTEND
The certificate I signed and attached to each volume
of record was based on a form provided to me by Judy
Miller who was one of the court's experts who initially
reviewed excerpts of the Halsey record. I had contacted
Judy Miller about what kind of certificate I should
use and she advised me she would contact George Miller,
then chief deputy clerk of the Court of Criminal Appeals.
It is my understanding from Judy Miller that Mr. Miller
faxed her the certificate and she in turn faxed it to
me.
It is fair to say that Section 16.1 gives the parties
a right to a court reporter who can use her eyes as
well as her ears to make the record speak the truth.
THE MATERIAL AND PROCEDURE THAT I USED TO
PREPARE MY RECORD
At a previous hearing in this case, I referred to the
audio tapes that I received as Sandra Halsey's audio
taopes. That part of testimony was based on what Judge
Francis told me outside of the courtroom. I have no
personal knowledge of who made those tapes or what may
have been done with them before they were placed in
my custody.
I used the following procedure to prepare my record:
I compared the hard copy of the Halsey record to
the audio tapes as I listened to the tapes and key
Halsey's steno notes at hand in case I needed them;
If the hard copy of the Halsey record was perfectly
consistent with what I heard on the audio tape and
the audio tape was clear, I adopted that part of the
Halsey record without referring to her steno notes;
If there was a conflict between the hard copy of
the Halsey record and what I heard on the audio tape
and the tape was clear, I changed the record to conform
to the tape regardless of what her steno notes said;
In the rare instances when the audio tape was not
clear or I had difficulty identifying the speaker,
I compared the hard copy of the Halsey record to her
steno notes and made a case-by-case judgment about
what the record should be.
It is fair to say as a practical matter that I treated
the audio tapes as the authoritative record of the trial
and only used Halsey's stenographic notes to edit the
tapes. I do not believe that any part of my record was
based on her uncorroborated notes or contradicted what
I heard on the tapes.
MY LIMITED KNOWLEDGE OF THE ACURACY OF HALSEY'S
STENOGRAPHIC NOTES
I was unable to estimate the extent of the discrepancies
between the original English translation of Ms. Halsey's
stenographic notes and my record because she used tapes
to edit her notes before I received those materials.
If Ms. Halsey changed any part of the original English
translation of her notes to conform to the tapes before
she printed out the final hard copy of her record, I
didn't compare that part of her record to her notes
because it was consistent with the tapes. The number
of discrepancies between Halsey's notes and the hard
copy of her record that I did not detect must be significant
if the samples of her record that were reviewed by Judy
Miller, Jerry Calloway and Tommy Mullins are representative
of her work.
MY UNDERSTANDING OF MY AUTHORITY TO USE THE
AUDIO TAPES TO EDIT THE HALSEY RECORD
I know that the reporter's stenographic notes are the
official record of a criminal trial under the Texas
Rules of Appellate Procedure.
I am unaware of any Texas rule, regulation or statue
that specifically authorizes the reporter to use audio
tapes of the trial to add, delete or substitute a word
in the record if the result is inconsistent with her
notes.
I know that the Texas and federal rules require that
audio tapes be certified by the person who made them
when the official record is electronically recorded.
I realize that the audio tapes of the Routier trial
were not certified, but Judge Francis provided the audio
tapes to me to use in attempting to create a new record.
Notwithstanding the above, I believe that I had the
authority to use the uncertified audio tapes of the
Routier trial to make deletions, additions and substitutions
of words in the record that are inconsistent with Ms.
Halsey's stenographic notes. It is a common practice
among qualified court reporters to make audio tapes
of a trial and use them to add, delete and substitute
words in the English translation of their notes without
certifying the tapes.
I acknowledge that there is a distinction between using
audio tapes to edit the official stenographic record
and using the tapes as the official record. I do not
know where the line should be drawn and I do not believe
that I have the authority to draw it.
THERE IS NO SPECIFIC AUTHORITY OR PRECEDENT
THAT I KNOW OF FOR CERTIFYING THE REPORTER'S RECORD
IN A TEXAS CASE LIKE THIS ONE. NOTWITHSTANDING THAT
MY RECORD IS A TRUE AND CORRECT TRANSCRIPT OF THE
VERBAL PART OF THE TRIAL.
It is fair to say that the following statements about
this case are true:
a. the original reporter lied to the court to conceal
flaws in her record that might have resulted in a
new trial;
b. the original reporter is not available to answer
questions about her work because she exercises her
right against self incrimination;
c. the certificate on my record is different than
the one that is required by TRAP Appendix, ORDER DIRECTING
THE FORM OF THE APPELLATE RECORD IN CRIMINAL CASES
(b) (1) (q);
d. I used uncertified audio tapes to make substantive
editorial changes in the record that conflict with
the original reporter's stenographic notes;
e. I cannot certify 53 pages of the record of an important
proceeding that occurred on the morning of October
21, 1996, because the audio tape of that proceeding
was lot or destroyed;
f. I cannot certify any of the parenthetical descriptions
of non-verbal facts;
g. I cannot determine whether there was a hearing
about attorney Doug Mulder's conflict of interest
that was not reported in Halsey's steno notes or recorded
on the audio tapes that I received.
I do not know of any Texas rule, regulation or statute
that authorizes certification under such circumstances.
I am confident that I have prepared a true and correct
transcript of the verbal part of the proceedings in
this case that were recorded on the audio tapes that
I received. The courts will have to decide whether that
is sufficient to certify a record under the unique circumstances
that I have described."
[signed]
_____________________________
Susan Simmons
SUBSCRIBED AND SWORN to before me on this the
20th day of August, 2002.
[signed]
_____________________________
Charlotte J. Kennedy
NOTARY PUBLIC, State of Texas
|
