DECEMBER 2000 PRINT EDITION



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It's Possible To Tamper With
Tapes In Middlesex Probate Court

By Ed Oliver
December 2000

Massachusetts News has photographic evidence that hearing tapes could have been edited at Middlesex Probate Court as Zed McLarnon and his attorney claim.

Even though copies of the tapes are made in Springfield, there is equipment in the Cambridge courthouse that could also be used to edit the tapes. It sits in a small room above the clerk's office, right next to where the master tapes are stored in boxes.

MassNews proved that tapes can easily be edited on a day that the tape coordinator is out of the office, because MassNews found the door ajar to the tape office on November 8 when the coordinator was out sick the whole day.

We made two separate trips to the Middlesex Probate Court in Cambridge on November 7 and 8. One of our objectives was to learn if it is possible for McLarnon's seemingly wild claim to be true. Could his opponents with inside connections have edited key information from his hearing tapes?

He charges it had to be somebody intimately familiar and connected to his case, with friendly connections to court personnel, to have consistently edited tapes of his court hearings to erase key sections that were detrimental to his opponents or to judges.

Photo: Recording equipment in this unlocked office at the Middlesex County Probate and Family Court is adequate to make a new, edited 'master tape' of any hearing.

How Tapes Can Be Changed

On November 7, MassNews learned from a court employee, who wishes to remain anonymous, how tapes are handled in Middlesex Probate Court.

The master cassettes are 90 minutes long, 45 minutes per side. They are "4- track," because there are multiple microphones in the courtroom. They can only be played on a 4-track player.

The clerk in a courtroom controls the recording. He notes on a log sheet the index number from the counter on the machine at the beginning and at the end of the hearing. He also notes the corresponding docket number, case name, and other identifying information.

Every few days, George Briggs, the tape coordinator, collects the tapes and log sheets from the courtrooms and brings them to a small office above the court clerk's office that says "Dining Room" on the door.

Briggs then puts the master tapes into boxes that can hold thirty tapes. The boxes all sit stacked on two tables on both sides of the room.

The office is accessible to court employees by going upstairs from the clerk's office or down a corridor adjoining a public hallway on the second floor. Both the corridor and stairs are marked with a sign saying, Authorized Employees Only, but are otherwise not secure.

When a person orders a copy of his hearing, Briggs finds the proper tape and puts it into a 4-track player to verify that the index number corresponds correctly to the requested hearing. Then he sends the master to Springfield for a copy of the hearing to be made.

Springfield sends back the master along with a regular 2-track tape of the requested hearing. Briggs then puts the master tape back in the storage box and mails the copy of the hearing to the person who requested it.

The equipment, as shown in the accompanying photo, includes a special player with two playback decks feeding into a regular cassette recorder - everything that is necessary to create an edited tape.

To explain the presence of the equipment, the court employee said hearing tapes are sometimes made unofficially for people who need one in a hurry. That explanation only helps to confirm that  "unofficial" tapes can be produced on the premises. It also does not explain the presence of the dual 4-track player which is only necessary for duplicating a master tape.

First Step
The first step in making an edited copy of a hearing is to make a copy of the master tape. The two masters are then placed into both playback decks of the special machine on the desk.

The dual player makes it possible to mark or "cue" the first tape at the desired point in the hearing you want to edit. You can then cue the second tape at the desired point you want the hearing to continue. When section "X" is played onto the separate cassette recorder followed by section "Y," the result is a new tape with section "Z" edited out. Section "Z" has been excised from the hearing.

This is precisely one of the methods detailed in Atty. Hession's report that could have produced the tampered results McLarnon encountered.

The machine on the table is capable of producing edited copies of a hearing to be sent to the requester.

In addition, there appears to be no sign-in procedure and no controls regulating who enters and leaves the office. On November 8, MassNews returned to the Courthouse to photograph the door and any locks that may be present. MassNews walked up to the door after being waved on by a clerk and found it unlocked and partly ajar with the lights out. George Briggs, the tape coordinator who works in the office, was out sick the whole day according to Meghan Gallagher in the Register of Probate's Office.

This proves that it is possible on a day that the coordinator is not in, for anybody to access the office.

It is still possible that others, such as the chief clerk, have access to the room. Chief Clerk Arthur Havey goes to judges' offices to retrieve sensitive files when nobody is there, MassNews observed on November 7. It is not likely that a clerk who handles tapes in the courtroom and sensitive files in locked judge's offices cannot enter the tape storage area should a friend or colleague want access to a tape.

Eliminating court stenographers has created an easy way to distort what was said in a courtroom.

This system which invites corruption appears to be a convenient way for judges, or friends of the court who need a favor, to have a clerk easily excise sensitive information, leaving the victim almost powerless to prove what was said. The clerk need only "forget" to docket an order or motion, or remove a document from the court file to coordinate with the edits. This is precisely what happened to McLarnon, according to his attorney. If a judge says something illegal, she can instruct the clerk to edit it out afterward.

The only recourse for the victim is to gather witness affidavits which rely on memory that could be faulty, especially if the victim is not immediately aware that the tampering has occurred. Not everybody has witnesses present at a hearing.

McLarnon recommends that all men order a copy of their tapes to be sure that nothing is missing from them. He also recommends they be sure their docket is accurate and complete and their file contains no surprises. He believes the law about the recording of hearings should be changed.

Judge Refused To Provide Copies
Atty. Hession filed a motion to correct the record in December 1999. He asked for his client's master tapes to be impounded, and he requested copies to be provided so they can be inspected and compared to the copies of the hearings that were sent to McLarnon. Some of the edits were from a hearing in front of Judge McGovern on May 31, 1996. The tape not only contains edits; it is noticeably reassembled in some areas according to the report.

McLarnon maintains it was obvious at the hearing that Judge McGovern had been drinking. He says he was threatened with jail three times by the judge.

Some of the changes that were made in the tapes after a hearing before Judge McGovern are related in the report compiled by Atty. Hession:

n The first time McLarnon was threatened with jail, he says, was after the judge asked opposing counsel, Nancy Borofski, if McLarnon was the one she had told her about the other night. The judge bolted out of her chair in a rage, got into his face and screamed, "You're going to jail, Mister!" McLarnon said the judge's breath reeked of hard alcohol. He said he is willing to take a lie detector test. He wonders what meeting occurred with the judge and opposing counsel at night and what the other lawyer said about him to cause such a reaction from the judge. Atty. Borofsky refused to answer any questions for MassNews.

n The second occurrence, he says, of the judge threatening McLarnon occurred over the fact that his lawyer, Sonya Pence, did not show up for the hearing. The truth was that his lawyer had abandoned his case and was later sued successfully for malpractice. The portion of the tape that was redacted, according to Atty. Hession's report, says the judge yelled several times, "You're going to jail, Mister! You're going to jail!" The report says that someone later redacted that statement and added another sentence in order to protect the judge: "Okay if you did [tell your lawyer not to come], then, we're gonna go forward with the hearing." The report states that the added sentence came from another hearing or the judge recorded it specifically to drop in at that point.

n The third threat of jail from the judge, according to the report, was after McLarnon told the judge that Register Lambert had suppressed a vital psychiatric evaluation, that David Douglas' social worker friends filed fraudulent reports against him and that Judge Highgas issued restraining orders against him when there was no history of abuse. McGovern told him he was going to jail if he couldn't prove those allegations right then.

n The tapes that still exist show that McLarnon argued to the judge that his accuser, David Douglas, was associated with the court. The judge replied that he had no connection with the court. McLarnon said, "Oh please." The judge replied, "Sir, I get to say that, not you." After that, the rest of the exchange is missing from the tape. The missing portion according to Atty. Hession's report is as follows:

"Do you know you can go to jail for saying that?"
"Saying what? His own affidavit says he consults with judges, clerks and probation officers."
"If I say he has no connection, he has no connection."
"Do you mean current connection or he has had no connection?"
"I don't have to answer that."
"I think you just have."
"Do you want to get fined?"

The judge ordered on August 2, 2000, that the tapes be impounded but she denied Atty. Hession's request for copies of the tapes. Regarding the request for copies, the judge ruled, "Denied. The Court affirms the integrity of the electronic recordings in this matter, absent human error."

McLarnon says nobody ever investigated the matter and wonders how McGovern could affirm the integrity of the tapes. He told MassNews, "What proof does she have? McGovern never contacted any of the eyewitnesses in the courtroom or the engineers who have confirmed to me that the tapes were edited."

The tapes that were destroyed included three of the master tapes with the most edits. On a document in the court file, the judge underlined a portion of the law governing recordings of court proceedings in an effort to justify the destruction. She highlighted that the law says after three years, the tapes can be destroyed. However, she did not note that the law says that this should not be done as long as any matter is pending or subject to appeal.

Atty. Hession is petitioning the Supreme Court for help in this matter.