Ruling rejects law firm’s lawsuit

Attorneys did not pursue proper legal avenue in courtroom recordings dispute, justices decide.

The Georgia Supreme Court on Tuesday ruled that a Marietta law firm had not used the proper legal avenue to obtain audio recordings of proceedings inside a Douglas County courtroom.

The Merchant Law Firm requested the recordings to try to show that Superior Court Judge David Emerson had improperly addressed defense attorney Ashleigh Merchant in a condescending manner. Like most stenographers, Emerson’s court reporter, Melinda Cantrell, records proceedings to aid in her transcriptions.

Merchant has said Emerson’s hostile demeanor toward her cannot be discerned from the stenographer’s transcripts of a murder case and a racketeering case she tried before him.

After the firm requested the audio recordings, Emerson told Merchant and her law partner husband, John, that they could come to court and listen to them, but they could not record them. This prompted the firm to file a lawsuit against Emerson and Cantrell in Fulton County Superior Court. But a judge dismissed the case, prompting the appeal to the state’s highest court.

On Tuesday, Justice Nels Peterson, writing for a unanimous court, said the firm should have used a court procedure known as Rule 21, which grants the public access to court records in criminal and civil cases. The firm also could have appealed Emerson’s order; it should not have filed suit, Peterson said.

The Supreme Court did not squarely answer the most pressing issue in the case: whether the

public has a right to inspect and copy a stenographer’s audio recording. As to that issue, Peterson gave somewhat mixed signals.

On the one hand, Peterson wrote, Emerson’s initial offer to the Merchant firm was insufficient. “We agree that merely listening to the tapes is not an adequate legal remedy when the firm has requested copies,” Peterson said.

As for obtaining copies of court audio recordings, that right, “if it exists,” may be vindicated by requesting the court recordings under Rule 21, Peterson said.

On Tuesday, lawyer Ashleigh Merchant said she disagreed with the court’s finding the law firm pursued the wrong legal procedure to obtain the tapes. But she said she was “happy that the court agreed with us that Judge Emerson and the trial court were wrong in attempting to limit the public’s access to court records to simple listening of the recordings.” Merchant also said she was pleased that the court clarified that members of the public have a right to obtain court records in a criminal case and the right to appeal a judge’s decision denying the public’s request for court records.

Copies of audio recordings of court proceedings have been sought by those making documentaries, particularly true-crime podcasts. The first season of The Atlanta Journal-Constitution’s “Breakdown” podcast relied heavily on court reporters’ recordings of a trial in Haralson County and a subsequent court hearing in Telfair County. The judges in both counties granted the newspaper’s request to copy the recordings. The state high court may soon decide the issue in a pending case brought by the popular “Undisclosed” podcast, which is seeking access to a court reporter’s recordings of the 2001 trial involving Joey Watkins in Floyd County. In that case, the podcast sought audio recordings from the court reporter under Rule 21, but a judge ruled that the podcast could not copy them. The high court is expected to decide in the “Undisclosed” case in coming weeks.