Murder Conviction Reversed Over Lost Transcript Pages

For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...

By Lance J. Rogers

Nov. 15 — A man convicted of murder nearly 20 years ago will get a new trial because key portions of his trial transcript went missing and were unavailable for the appeal, the Georgia Supreme Court ruled Nov. 7 ( Sheard v. State , 2016 BL 370419, Ga., No. S16A1291, 11/7/16 ).

Asking a lawyer who was not involved in the original trial to craft an appeal challenging, among other things, the adequacy of the jury instructions is “fruitless” if counsel doesn’t have access to a transcript of those instructions, the court said in an opinion by Justice Carol W. Hunstein.

Key Pages Missing

A defendant isn’t automatically entitled to a new trial just because the state can’t locate parts of the transcript, the court said.

But the circumstances in Elliot Sheard’s appeal are unusual because the missing portions were critical and the passage of time raises serious due process concerns, the court said.

“Despite nearly two decades, the State has been unable to complete the transcript, during which time the court reporter responsible for the trial has died, Sheard has been appointed multiple attorneys for his appeal, and memories have undoubtedly faded,” the court said.

The trial court, 15 years after the event, used its own recollection to conclude that the closing arguments and jury charge were unremarkable and didn’t support Sheard’s motion for a new trial. But there’s no way for appellate judges to satisfactorily evaluate that conclusion, the court said.

Forcing Sheard’s lawyer to suss out the alleged errors without benefit of a transcript “is not only fruitless but also hinders counsel’s ability to adequately and zealously represent Sheard on appeal,” the court said.

Matthew K. Winchester, Atlanta represented Sheard. The Fulton County District Attorney’s Office and the Georgia Department of Law represented the state.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.