Nebraska appeals court upholds sex assault conviction

There is no way a substitute judge could tell if the new transcript is correct, since that judge was not at the trial! Could other changes have been made? This is going to the Nebraska Supreme court.

10-17-2013 Nebraska:

OMAHA, Nebraska — In a split decision, a three-judge panel of the Nebraska Court of Appeals upheld the child sexual assault conviction of an Omaha man who objected to a court reporter's covert efforts to correct a faulty trial transcript.

The decision Tuesday came in the case of Charles Kays, 72, who was convicted and sentenced in 2011 to up to 20 years in prison for sexually abusing a young girl starting when she was 4 years old.

On appeal, Kays' attorney noted several mistakes with the official court transcript — including that 13 jurors instead of 12 deliberated in the case. The court reporter corrected the mistakes, printed out a new version backdated to the date the original transcript was filed and then shredded the original transcript. She did so without the approval of a judge, which is required by law.

The court reporter admitted to making mistakes in amending the trial transcript, but testified she did so in an effort to provide an accurate record of the trial, not to hide her mistakes.

Kays' attorney objected to her actions, and the Nebraska Court of Appeals sent the matter of the amended transcript back to Douglas County District Court for a hearing. However, the trial judge in Kays' case recused herself, saying she had a conflict of interest, so the hearing was held before another judge who was not familiar with Kays' trial. That judge determined that the amended trial transcript was accurate.

Nebraska Court of Appeals Chief Judge Everett Inbody and Judge Frankie Moore upheld the lower court's finding that the court reporters' amended transcript was accurate in rejecting that and Kays' other arguments for a new trial.

In a dissenting opinion, Judge John Irwin said the other two judges understated the severity of the court reporter's misconduct.

"Court records are sacrosanct," Irwin wrote. "Accuracy in the judicial review process, and public confidence and trust in the process, depends mightily on the accuracy and trustworthiness of the record presented to the appellate court."

"It is entirely possible that the record presented to us now is accurate in every way," Irwin said. "But there is no way of knowing that."

Irwin said he would have ordered the original trial judge to decide whether the amended transcript was accurate.

Nebraska Attorney General Jon Bruning said Wednesday he was pleased with the majority's ruling.

"Let's not forget this man repeatedly sexually assaulted a child under the age of 10," Bruning said. "He deserves to be behind bars."

Kays' attorney, Frank Robak of Council Bluffs, Iowa, said he has not had a chance to thoroughly review the opinion, but he said he will likely file an appeal.

"It will very likely end up before the Nebraska Supreme Court," Robak said. ..Source.. by MARGERY A. BECK