Kareem Russell was tried and convicted of a crime in federal court and sentenced to prison for seven years. (Full disclosure: I think Russell was a co-defendant of a  Third Circuit client of mine in an unrelated case.) Then he wanted to appeal — but something went badly wrong with his trial transcript.

First, getting the transcript from the court reporter required “protracted attempts.” Then, when he got the transcript, it was a disaster: “a rough transcription replete with mistakes and omissions.” And court reporter wouldn’t turn over the audio recordings. The government “investigat[ed] the court reporter and r[a]n[] a forensic examination of her laptop.” In the end he got a transcript of the first and third days of the trial, but no transcript for day two, on which three prosecution witnesses testified.

What a disaster. I can’t imagine the frustration I’d feel if this happened to my client, or my father, or my son.

The whole reason transcripts exist is to provide a clear record of what happened at the trial. Without a transcript, it’s harder to tell if there was reversible error or not. So who pays that price?

The Third Circuit answered that question again (alas this is not the first lost-transcripts case) in an unpublished opinion last Friday in United States v. Russell, with the facts as stated above. Russell lost, because “to be successful with an argument that because a portion of the trial transcript is missing the case warrants reversal, a defendant must make a specific showing of prejudice.” (internal quotations and alterations omitted). And, without the transcript, the defendant was unable to make that “specific showing.” Naturally.

That is a correct application of binding circuit precedent, but it is disturbing still.

Disturbing too is the idea that this same court reporter (she is unnamed in the opinion, unhelpfully) may have transcribed other cases. If, in one case, a reporter produces a transcript filled with gaps and mistakes and partial audio can be recovered only after a forensic scan of her laptop, how could you be confident about any transcripts this reporter produced in other cases around that time? Has the court done a review? Have the litigants and counsel in those cases been notified?

Ugh.