It's been a tough year for stenography in the Genesee County Court and today three cases came before Judge Charles Zambito dealing with stenography issues.
Two stemmed from a previously reported stenographer's mistake while transcribing grand jury proceedings -- that stenographer inappropriately taped the proceedings.
Another defendant appeared before Zambito today because an appeals court overturned his conviction on a burglary charge because a part of the transcription of his jury trial was not preserved for review.
In the People vs. Victor J. Grimes, Grimes was convicted at a jury trial in August 2016 and subsequently sentenced to seven years in prison.
He's served 44 months of that sentence.
Last week, a state appeals court ordered a new trial -- even while finding evidence was sufficient for conviction -- because a stenographer's error on the final day of the trial meant relevant notes in the case were not preserved. Since the court then didn't have the final day's transcription, the court couldn't review the proceedings to ensure the trial court complied with specific procedures.
In the trial, Grimes was represented by retained counsel. He's now represented by Lisa Kroemer of the Public Defender's Office. Kroemer asked for time to review the case and speak with District Attorney Lawrence Friedman before a new date for the trial is set.
Judge Zambito ordered Grimes held on $25,000 bail or $50,000 bond pending his possible trial.
The other two stenographer-related cases heard today were People vs. Antwan Odom and People vs. Richard Hanes.
Odom is accused of knifing Ray Leach. Hanes is charged with murder in the beating death of Ray Morgan.
Friedman asked the cases be placed on the docket because he wanted to get on record what the defense attorneys intend to do regarding the mistaken recording by the stenographer of grand jury proceedings in those cases.
The attorneys for Odom and Hanes took decidedly different approaches.
Odom is represented by Buffalo attorney Frank Housh. Housh with his own unique sartorial style at every court appearance, walked into court today in seersucker slacks and robin's-egg blue sports jacket. And when pressed about how he intended to proceed, raised his prior complaint that Friedman is conducting a dual prosecution, one against his client and one against him.
In May, Housh made statements to local media that Friedman considered a violation of professional standards and risked tainting the jury pool. Friedman asked for a gag order and Zambito issued a temporary gag order but lifted it last week, citing an objection on free press grounds by "the media" (in this case, The Batavian).
Zambito did rule against Housh's motion to have Friedman removed from the case because of this alleged "dual prosecution."
Besides the request for a gag order, Housh said Friedman has also filed a grievance complaint with the state bar against Housh.
Housh contends -- without presenting proof -- that everything Housh says or does in the case is forwarded by Friedman to the state bar.
For that reason, Housh said he has not made the trip to the District Attorney's Office to review the case file on the stenography issue because, he said, he would need to bring his attorney with him.
Housh has repeatedly threatened to withdraw from the case because of this "dual prosecution" but so far has not withdrawn.
Today he asked Zambito for a summary judgment dismissing the case against Odom because, he said, in a prior answering brief, Friedman stated the grand jury process was legally constituted when in fact Friedman, he said, new about the inappropriate recording of the proceedings.
After more discussion, Zambito agreed to meet with the attorneys in his chambers for an on-the-record but closed-door discussion about the issue.
Out of that meeting, it was agreed, as stated in court later, that Housh would file a motion and there would be a hearing Aug. 5 (instead of the trial starting on that day) on the defense motion.
In contrast to the approach of Housh, Fred Rarick, representing Hanes, was willing to stipulate in court that prior hearings on this topic -- including one in the Jennifer Serrano case -- established the facts of the incident and those same facts could be entered into the Hanes case and Zambito could issue a ruling based on the facts and evidence already presented.
On previous cases, including Serrano, Zambito ruled that stenography issue did not invalidate the grand jury proceedings.
Outside of court, Rarick said he saw no point in going through another hearing where the same facts and evidence would be presented that are already on the record knowing that Zambito is unlikely to rule any differently than he has previously.
By getting the prior hearings submitted as evidence in the Hanes case, without objection from Friedman, he has preserved any possible appeal over the issue for his client should Hanes be convicted at jury trial.