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DETROIT � A missing court transcript of a Michigan murder trial has highlighted a frequent problem encountered by the courts: What happens when transcripts, or crucial portions of them, go missing? That’s at the heart of a recent controversy brewing in Detroit, where convicted murderer Elroy Jones is seeking an appeal. But there’s a problem: The only transcript of his murder trial was recently stolen by someone who broke into a court reporter’s vehicle in a drugstore parking lot. The thief took her briefcase, which contained tapes from the defendant’s 2006 murder trial. “We don’t have the real details that exist here. It’s just impossible to pursue the [appeal],” said the defendant’s appellate lawyer, Craig Tank of Tank & Jelalian in Macomb Township, Mich., who is seeking to have the conviction reversed. People v. Jones, No. 06-007202 (Wayne Co., Mich., Cir. Ct.). According to Tank, the stolen tapes contained 80% of the trial transcripts. All that’s left on record, he said, is the prosecutor’s opening argument. Tank filed motions last week in the appeals court to have the case remanded back to the lower court for retrial. “What has taken place here with the missing transcripts is that [defendant] Elroy Jones has been deprived of his right to seek an appeal,” said Tank, who disputed claims that the robbery was a setup. “This was simply a random criminal act.” A frequent occurrence While the Detroit case presents an unusual situation, attorneys across the country say that crucial records and evidence frequently disappear. “It’s not as rare as you would think,” said Sandra Cavazos, a former prosecutor in the appellate division of the New York County District Attorney’s Office, which prosecutes cases in Manhattan. “In New York, I’ve seen it in the context of jury claims, where the whole record of the voir dire is missing for some reason.” Cavazos also has seen cases in which portions of a witness’s testimony are missing, or certain pretrial hearings disappear from the record � “things that the defendant is definitely going to be raising on appeal,” she said. In those situations, she added, reconstruction hearings are held, at which the judge and parties usually figure out what happened. “It’s only if you’re unable to reconstruct what happens that there would be a retrial,” she said. Under federal and state laws, lawyers note, defendants seeking appeals can raise due process challenges when transcripts, exhibits or other records are missing because federal due process guarantees the right to receive a record of trial to permit an effective review. If the record is gone, or crucial information is missing, convictions can be thrown out, arrest warrants can be deemed illegal and crucial evidence can be suppressed. ‘This thing disappeared’ That’s what happened in a California robbery case in December, when a court suppressed all evidence seized under an arrest warrant because the original copy of the search warrant affidavit was missing from the court records. The fact that the documents were missing was discovered on appeal when the defendant tried to challenge the validity of the warrant. People v. Galland, 146 Cal. App. 4th 277 (2006). “This thing disappeared. It was never in the court file,” said Mark Harvis, a deputy public defender in Los Angeles County who is familiar with the case. He said that the police department kept the affidavit and eventually destroyed it. “The court said, ‘Look, we have no record to review. He was denied due process of the law. That’s not fair.’ “ In light of the Galland case, Harvis last month proposed a resolution to the Conference of Delegates of the State Bar of California that would require every search warrant application to be filed with the clerk. They are currently held by police. Meanwhile, missing court documents were the subject of a recent training seminar in California, at which appellate lawyers with the First District Appellate Project discussed hurdles defendants must overcome when seeking reversals due to missing or incomplete records. One obstacle is proving that the trial can’t be reconstructed without the transcript; the other is proving that defendants were actually prejudiced. “In most state court systems, the rule is: If someone is completely deprived of a transcript, then he has been deprived of his right to an appeal. And absent the right to an appeal, he is entitled to a retrial,” said Milton Hirsch, who specializes in criminal defense and appellate litigation and is an adjunct professor at the University of Miami School of Law.

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