I’ve been wondering exactly what this was about ever since I learned about a court date for November 27 where Orly Taitz is ordered to appear before judge S. K. Reid in Indiana to “show cause.” In my limited legal experience, an order to show cause is usually a bad thing for the one who receives it, and that turns out to be the case here.
Taitz disclosed on her blog yesterday what it is about in a published copy of a letter to Judge Reid that says in part:
I received from you a letter stating that this court intends to hold a hearing to show cause regarding release and publication of a certain audio transcript of the October 22 hearing, which contains expert testimony of forgery in the birth certificate of Barack Obama. “Parties are ordered to show cause whether or not they should be in Contempt of Court for the release and posting on “Youtube” of the audio recording of October 22, 2012 hearing, all in violation of this court order and pursuant to the Code of Judicial Conduct rule 2.17”
I can understand why Judge Reid is upset by the release of the recording because it puts her in a very bad light. Reid allowed Taitz to get testimony into the record from unqualified experts. I think the trial should never have been held while motions to dismiss were pending and that the audio recording is an embarrassment to the judge (as well as to Taitz). The only mitigating factor for Judge Reid is that she vacated the entire trial afterwards.
If Taitz is to believed, and I personally do in this instance, the audio recording in question was made by the court reporter and sold to Taitz. The court ordered the parties not to make recordings, but Taitz didn’t do that. What she probably did was to publish, or to allow to be published, the recording she properly obtained and after the recording was published on YouTube, she published the embedded YouTube copy of it on her web site. As of this morning, the YouTube video itself has been made private.
Judge Reid cited the Code of Judicial Conduct Rule 2.17, which I reproduce in its entirety below:
RULE 2.17: Prohibiting Broadcasting of Proceedings
Except with prior approval of the Indiana Supreme Court, a judge shall prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:
(1) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;
(2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings;
(3) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions:
(a) the means of recording will not distract participants or impair the dignity of the proceedings;
(b) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;
(c) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and
(d) the reproduction will be exhibited only for instructional purposes in educational institutions.
There are also local rules in many Indiana counties dealing with recordings, and in particular Marion County has rules on the subject, but I didn’t see that they add anything to the Judicial Rules above.
Who placed an audio recording of a Marion County Superior Court hearing onto YouTube? Speculation focuses on one of the plaintiffs in a hearing Oct. 22 that tried to strike President Obama’s name off the Indiana election ballot.
Dr. Orly Taitz, the noted anti-Obama “birther” activist, was suing the state to get the president’s name off the ballot. A hearing in Judge S.K. Reid’s court was Taitz and her five other plaintiffs’ opportunity to make their case.
They failed. Judge Reid ruled in favor of the state. But audio of the two hour plus hearing was posted onto YouTube Nov. 1. Publicizing audio of Indiana Superior Court proceedings is a violation of judicial rules and Indiana law. Those involved could lose their law licenses or be prosecuted.
Court officials are investigating this serious breach of legal ethics by a group that seemingly doesn’t want to follow any rules of law unless it helps their goal of belittling the elected president of the United States.
That all looks pretty bad for Taitz and the best argument she was able to muster was:
There was never any order stating that parties are not allowed to post on you-tube audio recordings lawfully purchased from the court.
I think Taitz could have made that argument better. Pursuant to Indiana Code §5-14-3-4(a)(8) the Supreme Court of Indiana issued Administrative Rule 9 on access to court records and a Public Access to Court Records Handbook. The Indiana Courts web site summarizes:
Administrative Rule 9 expresses the general premise that records are publicly accessible unless they are explicitly excluded from access.
and the Handbook says:
Recordings of court proceedings made by court reporters are public records….
In January of 2012, Joseph B. Hoage, Indiana Public Access Counselor, wrote in an informal opinion:
The Handbook provides that creating a copy of the audio record is probably the most efficient and least time consuming method to provide public access. The court reporter indicated that a copy of the hearing existed on hard drive and CD. If the Court is able to make a copy of the CD, the recording is not declared confidential, and providing the recording complies with the Court’s management of its audio recording pursuant to AR 9(D)(4) and Indiana Judicial Conduct Rule 2.17, it may do so. The Court may also issue in conjunction with providing a copy of the CD an order specifically limiting its use and barring the recipient from broadcasting the received record in any manner. The Court would further be allowed to charge you a fee pursuant to IC 5-14-3-8.
I think we may reasonably presume that there was no order specifically limiting the use of the purchased court recording and at this point I would open the floor to arguments as to whether Taitz broke the rules or not. I personally appreciate access to court records.