An appellate court was sharply divided Tuesday on whether an Omaha man should receive a new trial based on a faulty transcript — one that originally listed 13 jurors as deliberating in the case.
In a 2-1 decision, the Nebraska Court of Appeals upheld the conviction of Omaha resident Charles E. Kays on a charge of sexual assault of a child.
The ruling is expected to be appealed to the Nebraska Supreme Court. Kays, 72, is serving 16 years in prison for sexually assaulting a girl under the age of 10.
Chief Judge Everett O. Inbody and Judge Frankie Moore ruled that a court reporter corrected several errors — including the mistaken listing of a 13th juror confirming the verdict in court. The reporter ultimately submitted an accurate transcript of Kays' trial, the judges ruled.
Inbody and Moore agreed that former court reporter Emilie Pavon did not follow protocol when she checked out the transcript, had it proofread and corrected several errors — including her original listing of the defense attorneys as the prosecutors and vice versa.
She then printed out a new transcript, shredded the original and had a court clerk backdate the new transcript — all without the required approval from a judge.
Although she violated court protocol, Pavon did all of that in an effort to be accurate, Inbody wrote. Inbody noted that Pavon was contrite.
“I feel bad that it all happened,” Pavon said at a hearing over the case. “It was a mistake. And I — I tried to correct it because I wanted to show what happened in the courtroom. I did not do it the right way. I've learned that now. I mean, I just want the accurate record to go up to the appeals court.”
In a dissenting opinion, Judge John Irwin questioned how the appellate court could know that the transcript is accurate.
Irwin noted that no judge compared the transcript against Pavon's audiotapes or notes from the proceedings. Court reporters often audiotape court proceedings to help ensure that their transcripts are accurate.
Irwin questioned why the trial judge in the case — Douglas County District Judge Leigh Ann Retelsdorf — recused herself from the review of the transcript. Irwin said the trial judge would have been in the best position to review the transcript for accuracy.
Pavon resigned after Retelsdorf confronted the court reporter about the mistakes. Retelsdorf then recused herself, citing a conflict of interest.
The majority judges had no problem with Retelsdorf's recusal.
Irwin bristled at their support of the transcript — noting several points raised by Kays' attorney, Frank Robak.
The judge rattled off all the violations of court protocol that Pavon committed in correcting, shredding, reprinting and backdating the transcript.
“It is entirely possible that the record presented to us now is accurate in every way,” Irwin wrote. “But there is no way of knowing that.
“What we do know is that serious misconduct concerning its preparation occurred after errors ... were discovered.”
Katie Benson, deputy Douglas County attorney, who helped prosecute Kays, said the majority's ruling was correct in finding that the transcript is now accurate.
Benson said the jurors — the 12 jurors — had no doubt about Kays' guilt.
“We're happy with the decision,” Benson said. “At the end of the day, this case is about the victim and what the jury arrived at. We're glad that that is being upheld. The victim has justice and shouldn't have to go through trial again.”