Testimony of SUSAN SIMMONS at the Sandra Halsey Disciplinary Hearing 1 TRANSCRIPT OF PROCEEDINGS 2 3 BEFORE THE 4 5 TEXAS COURT REPORTERS CERTIFICATION BOARD 6 7 AUSTIN, TEXAS 8 9 10 11 IN THE MATTER OF THE * CAUSE NO. 99-0308-07 12 DISCIPLINARY HEARING * 13 OF SANDRA HALSEY * 14 ****************************************************** 15 BEFORE THE HONORABLE SID HARLE, 16 CHAIRMAN PRESIDING 17 ****************************************************** 18 EXCERPT OF DISCIPLINARY HEARING 19 ****************************************************** 20 BE IT REMEMBERED that on the 5th day of 21 June 1999, the above-entitled and numbered cause 22 came on for hearing in the State Bar Building, 1414 23 Colorado, Austin, Travis County, Texas, before the 24 Honorable Sid Harle, Chairman, whereupon the 25 following proceedings were had, to-wit: CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 APPEARANCES: 2 FRANK J. KNAPP 3 Assistant Attorney General Administrative Law Division 4 209 W. 14th & Colorado Street P.O. Box 12548 5 Austin, Texas 78711-2548 (512) 463-2100 6 Fax: 463-2063 FOR THE COMPLAINANT 7 GEORGE R. MILNER and RONALD L. GORANSON 8 Milner Lobel Goranson Sorrels Udashen & Wells 9 Chateau Plaza, Suite 1500 2515 McKinney Avenue, LB 21 10 Dallas, Texas 75201 (214) 651-1121 11 Fax: 953-1366 FOR THE RESPONDENT 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 (At the conclusion of a portion of this 2 trial, which is not transcribed for the 3 purposes of this record, the following 4 proceedings took place in open court with 5 all parties present:). 6 SUSAN SIMMONS, 7 having been first duly sworn testified as follows: 8 DIRECT EXAMINATION 9 BY MR. KNAPP: 10 Q. Ms. Simmons, would you state your full 11 name for the record? 12 A. Susan Simmons. 13 Q. Are you certified as a court reporter by 14 the court reporter's Certification Board? 15 A. Yes, I am. 16 Q. And how long have you been so certified? 17 A. Twenty-five years. 18 Q. Are you also an official court reporter at 19 this time? 20 A. Yes, I am. 21 Q. And which court are you an official court 22 reporter in? 23 A. Well, I work for the U.S. District Court. 24 It's a federal court. The judge that I worked for 25 five years, William Wayne Justice, has taken senior CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 status and moved here to Austin. So right now, I 2 don't have a judge. I'm just a floater at the 3 courthouse until the president appoints another 4 judge. 5 Q. How long have you been an official court 6 reporter? 7 A. I've been an official court reporter in 8 the Federal system for 10 years. And before that, I 9 worked eight years in the State system. 10 Q. Could you estimate how many reporter's 11 records you have prepared during that period? Is 12 that a fair question? 13 A. Many. 14 Q. Many. Okay. Were you designated by 15 Judge Robert Francis to review the court reporter's 16 record in the Routier case to determine if it 17 accurately reflected the evidentiary and sentencing 18 portion of the Routier case? 19 A. Yes. 20 Q. And did you conduct that review? 21 A. Yes, I did. 22 Q. How long did it take you to make that 23 review? 24 A. December through April 1st. The first -- 25 about the middle of December through April 1st. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 Q. And did you prepare a redline copy of that 2 reporter's record, or at least the copy that you 3 had, as to various problems with that record? 4 A. Yes. 5 MR. KNAPP: Could I get that redline, 6 counsel? 7 Q. (By Mr. Knapp) Are the documents that 8 you're looking at the redlined copy of the 9 reporter's record that you prepared in the Routier 10 case? 11 A. Yes, they are. 12 Q. Let me start by asking you: How many 13 notations of mistakes did you make -- could you take 14 an estimate -- in the record that you reviewed, 15 large and small and what have you? 16 A. Well, there were 6,000 pages that I 17 reviewed. And there were over 18,000 corrections 18 that I -- I wrote in. And that's a conservative 19 estimate. 20 Q. Could you tell the Board about some of the 21 major problems that you found with this record? 22 A. Typos, misidentification of speakers. 23 Like we would have, "THE WITNESS: I overrule that 24 objection," where obviously, it should have been the 25 Court. Left out words. Words that sounded close CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 but weren't the words that the participants had been 2 using. Just all kinds of errors. 3 Q. What about the index? Did you see what's 4 been described as a growing index in there? 5 A. When I got the record, the index was not 6 in there. 7 Q. What had happened to the index? 8 A. I -- I don't know. The copy that was -- I 9 was given did not have a growing index. 10 Q. Could you select one or two volumes of the 11 reporter's record and tell the Court specifically 12 some of the problems that you see at those 13 particular areas of the record? 14 A. Well. this is just an example. There were 15 just words left out. They just weren't in the 16 record. Like right here, it says, "THE WITNESS: I 17 do." And the witness actually said, "Yes, Your 18 Honor." 19 Q. What page and volume of the record is 20 that? 21 A. This is Volume 5, Page 444. Like I said, 22 lots and lots of misspellings. 23 MR. GORANSON: May I see that, 24 please? 25 THE WITNESS: Sure. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 A. Especially, I noticed in the medical 2 testimony where the doctors testified, the medical 3 terminology was not correct at all. They -- what 4 was in the record is what it sounded like, not 5 necessarily what the term the doctor had actually 6 used. 7 Q. (By Mr. Knapp) Should a court reporter, 8 one way or another, find out exactly what the 9 correct terminology is -- 10 A. Yes. 11 Q. -- in that situation? 12 A. Yes. 13 Q. Would you do that? 14 A. Yes. You go to a diction -- medical 15 dictionary and look that up. 16 Q. And this is something that court reporters 17 have access to one way or another, a medical 18 dictionary? 19 A. Exactly. 20 Q. Medical book, something? 21 A. Exactly. And, I know I have done this, if 22 it gets to a point where you just cannot figure it 23 out, you can call the witness and say, "I need help 24 with this word. It sounds like, da, da, da." 25 Q. Could you thumb through there and see if CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 you find any of those specific examples? 2 A. I don't have my copy here, so I just -- 3 like I said the worst that I went through was 4 especially the medical doctors and nurses. And 5 there were lots of those in this case. And like -- 6 it's all up here, if people want to look through it 7 or -- 8 Q. In your opinion, without the changes that 9 you've made to the reporter's record in the Routier 10 case, would the record that Ms. Halsey submitted and 11 that was finally filed with the Court of Criminal 12 Appeals be certifiable as the -- as a correct 13 reporter's record in the Routier case? 14 A. I would not have certified to it. 15 MR. KNAPP: Pass the witness. 16 CROSS-EXAMINATION 17 BY MR. MILNER: 18 Q. Ms. Simmons, when you were appointed or 19 asked by Judge Francis to give him some assistance 20 in working on the record? 21 A. I want to say I was contacted maybe before 22 Thanksgiving. 23 Q. Is Thanksgiving of last year, '98? 24 A. Uh-huh. Uh-huh. Oh, I'm sorry. Yes. 25 I'm not -- and I should know better. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 Q. I know you guys are bad about shaking your 2 head, but she's taking it down over here. 3 And what did you understand your task to 4 be that he assigned you to? 5 A. My task was to strictly go through the 6 record for mistakes. Not format, not 7 parentheticals, just mistakes in the actual 8 transcript. The written -- 9 Q. The overall goal was to determine whether 10 or not there were any substantive changes in the 11 statement of facts. And you understood that, did 12 you not? 13 A. Yes. 14 Q. All right. And what all did you have to 15 work with when you created or attempted to -- or not 16 attempted, created the new record? 17 A. I had disk -- 18 Q. That's the -- 19 A. -- with the note -- 20 Q. That's the stenographic? 21 A. That's the stenographic notes on a 22 computer disk. 23 Q. Okay. 24 A. I had the paper notes and I had the 25 audiotapes. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 Q. Okay. And how long did it take you to 2 complete your work, or have you completed it now? 3 A. Well, I'm now working on the voir dire. 4 Q. Okay. Let's just limit ourselves to the 5 guilt-innocence phase of the trial. How long did it 6 take you to do that? 7 A. Four months. 8 Q. And did you have to get any extensions 9 from Judge Francis to complete your work? 10 A. No, he did not give me a date. 11 Q. So he gave you an open-ended task order? 12 A. Yes. And I -- I called every week and 13 reported to Judge Francis what my progress was. 14 Q. And was this your full-time work at -- 15 during that period? 16 A. No. 17 Q. What other work were you having to do? 18 A. I was -- I work at the federal courthouse. 19 Q. All right. In Tyler? 20 A. Yes. 21 Q. Do you have any recollection of what, if 22 any, trials occurred during that period of time? 23 A. I had a Walmart case, I remember. I just 24 can't remember all of them, right now. I'm actually 25 part-time with the government. I work 20 hours a CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 week instead of 40, until they get a judge 2 appointed. 3 Q. Okay. Is there any place in the record 4 that you can show this Board that has affected any 5 of the substantive rights of Darley Routier in her 6 appeal? 7 A. To me, that's a legal question. I mean, 8 I've marked all of this -- 9 Q. Let me ask this way: You've told 10 Judge Francis that in your professional opinion this 11 record is certifiable for appellate purposes, have 12 you not? 13 A. Yes. 14 Q. And is that telling him, Judge, I have 15 done this, I've done my professional best in doing 16 it, I think it's -- will meet the standards of being 17 certifiable for an appellate record? 18 A. Yes. 19 MR. MILNER: That's all. 20 REDIRECT EXAMINATION 21 BY MR. KNAPP: 22 Q. When you prepare -- when a court reporter 23 prepares the reporter's record, they're basically 24 doing this on their own time and getting reimbursed 25 for it; is that correct? CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 A. Yes. 2 Q. And a record this size, have you got any 3 estimate what Ms. Halsey would have charged for a 4 record like this or another court reporter would 5 have charged? 6 A. Different areas charge different. Like in 7 Smith County, Tyler, I -- our rights, I'm sure, are 8 different from Dallas reporters. I know what 9 Ms. Halsey charged -- or I've read what she charged, 10 but I don't -- I don't know what her rates were. 11 Q. What do you believe she charged? 12 A. $63,000. 13 Q. All right. And have you run up additional 14 costs because you're doing the review yourself? 15 A. Yes. 16 Q. And how much has it cost? 17 A. So far, it has been 32,000. 18 Q. And these will -- this will be additional 19 charges to the State; is that correct? 20 A. Yes. 21 Q. Do you have an opinion as to whether the 22 record submitted by Sandra Halsey was proofread 23 prior to being submitted to the Co 24 Appeals? 25 A. Yes, I have an opinion. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 Q. What is your opinion? 2 A. It was not proofread. 3 Q. Could you define the Halsey record and the 4 Simmons' record that's been prepared in this case? 5 A. Could I define them? 6 Q. Well, defined as -- how would you 7 define -- how would you classify the record 8 submitted by Ms. Halsey and how would you classify 9 the record submitted by you with the corrections? 10 A. I don't -- 11 Q. Let me ask it another -- 12 A. I don't know that I understand that 13 question. 14 Q. Let me ask it a different way. Between 15 the record prepared by Ms. Halsey and the record 16 prepared by you, which do you feel is certifiable in 17 this case to be presented to the Court of Criminal 18 Appeals? 19 A. Mine, the Simmons' transcript. 20 MR. KNAPP: All right. Pass the 21 witness. 22 RECROSS-EXAMINATION 23 BY MR. MILNER: 24 Q. Ms. Simmons, Mr. Knapp asked you some 25 questions about the fees received by Ms. Halsey. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 Have you told the Board the entire story about that? 2 A. I don't know the entire story. 3 Q. First of all, the scopist -- the two 4 scopist, she had to pay that out of the money she 5 received, did she not? 6 A. I assume she did. 7 Q. And you're aware that -- you said that it 8 cost 32,000 up to here. Are you aware that 9 Judge Francis has entered an order requiring 10 Ms. Halsey to pay that 32,000, are you not? 11 A. I read it in the paper. I -- I don't 12 know. I mean, Judge Francis has not told me that. 13 Q. You don't have any reason to doubt what 14 you read in the paper, do you? 15 A. Well -- 16 MR. MILNER: That's all, Your Honor. 17 THE COURT: Board questions? 18 Mr. Alvarez. 1 MR. ALVAREZ: Ms. Simmons, excuse 20 me. My name is Albert Alvarez. If you did not have 21 a tape recording and only the notes, the hard steno 22 notes, would you have been able to put a record 23 together, a certifiable reco 24 THE WITNESS 25 MR. ALVAREZ: you. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 THE COURT: Any other Board 2 questions? Mr. Lombard. 3 MR. LOMBARD: Ms. Simmons, my name is 4 Jim Lombard. Did I understand you correctly that 5 you said a lot of the errors that you found in the 6 transcript were misspellings? Were those primarily 7 misspellings of proper names, were they common 8 misspellings, how would you characterize those? 9 THE WITNESS: There was a little bit 10 of everything. I mean, for instance, the name of 11 Darren Routier's company was Testnic and it was 12 supposed to be spelled T-E-S-T-N-I-C, I believe. It 13 was spelled 13 different ways throughout the 14 transcript. I mean, we had Q-U-E on the end. I 15 mean, it was just spelled -- one portion, the word 16 was supposed to be runner and it was rubber. And I 17 mean, there were just things that were not right. 18 MR. LOMBARD: Okay. You said that 19 there was also a lot of errors having to do with 20 medical terminology. 21 THE WITNESS: Yes. 22 MR. LOMBARD: Is it possible that 23 the -- the medical terminology spelling could have 24 been because one person will hear something one way 25 and believe that they've heard it correctly when, in CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 fact, they have not? 2 THE WITNESS: Anything's possible. 3 MR. LOMBARD: Has that ever happened, 4 that you're aware of? For example, similar 5 phrases -- in heart disease, for example, there's 6 both arteriolosclerotic and atherosclerotic? 7 THE WITNESS: Could be. 8 MR. LOMBARD: Are they those type of 9 errors or different errors? 10 THE WITNESS: Not in this. And these 11 doctors -- and I wish I had mine here so I could 12 look at the index, but -- and then I could pull 13 these out. But like this would be an emergency room 14 doctor. 15 MR. LOMBARD: Uh-huh. 16 THE WITNESS: And I'm just giving 17 this as an example. And there would be some terms 18 in there that had nothing to do with -- I mean, it 19 would be like something to do with breast surgery or 20 something. I mean, it was a word that apparently 21 sounded like what he said, but it was not the right 22 word. You could tell by the context when you looked 23 up the word that it was in the transcript that was 24 not the right word. 25 MR. LOMBARD: Thank you. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 THE COURT: Any other questions from 2 the Board? 3 MR. COHEN: I do. 4 THE COURT: Mr. Cohen. 5 MR. COHEN: Ms. Simmons? 6 THE WITNESS: Yes. 7 MR. COHEN: You indicated that you 8 listened to the audiotapes along with the other -- 9 along with the other things that you used to create 10 the record. Was there static on those audiotapes? 11 THE WITNESS: No. 12 MR. COHEN: Were the voices legible 13 on the audiotapes? 14 THE WITNESS: Yes. 15 MR. COHEN: And did the audiotapes 16 exist for the guilt-innocence as well as punishment 17 phase of the trial or have you done the punishment? 18 THE WITNESS: I've done the 19 guilt-innocent and punishment. I'm working on the 20 voir dire. 21 MR. COHEN: Did Ms. Halsey, 22 regardless if she was under oath or if she made the 23 statements in conversations, said that -- and I 24 don't know this terminology very well, but the PZM 25 microphone CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 THE REPORTER: I'm sorry, I can't 2 hear you. 3 MR. COHEN: That the P, like in 4 policy, like M, microphone, I'm not sure what that 5 means, but PZM. She said that it wasn't working and 6 it needed batteries and that she had checked two of 7 the tapes and said nothing was on them but static. 8 Would that have been a truthful statement by her? 9 THE WITNESS: I found no tapes which 10 is static. Every tape that I -- that was in 11 order -- these tapes, when they came to me, were 12 like each day was rubber banded together. They had 13 a date on the end, so I knew which date it was. And 14 they had the page numbers on it. I found no tapes 15 that didn't have anything on it. All of them had 16 something on it that I used. 17 MR. COHEN: So the tapes existed, 18 they were legible? 19 THE WITNESS: Uh-huh. 20 MR. COHEN: And you were able to use 21 those to assist you to recreate the record? 22 THE WITNESS: Yes. 23 MR. COHEN: Thank you. 24 THE WITNESS: Uh-huh. 25 THE COURT: Mr. Lombard. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 MR. LOMBARD: You said that when you 2 listened to the tapes, you were able to hear them 3 clearly and without static, correct? 4 THE WITNESS: (Witness nodded head 5 affirmatively.) 6 MR. COHEN: The machine that you used 7 to listen to -- I'm familiar with office dictation 8 machines. 9 THE WITNESS: Right. 10 MR. COHEN: And I'm assuming that 11 what you're using is something similar along the 12 way. 13 THE WITNESS: Right. 14 MR. COHEN: What is that device 15 called? 16 THE WITNESS: Well, what I use is a 17 Lanier transcriber. 18 MR. COHEN: A transcriber. Have you 19 ever had a transcriber that went bad on you, where 20 the -- the instrument itself was bad? 21 THE WITNESS: Sure. 22 MR. COHEN: And would possibly cause 23 you to hear static? 24 THE WITNESS: I -- when my machine is 25 broke, I would get another one. So, you know, I -- CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 MR. COHEN: But would you know at the 2 time that you were listening to it, if the problem 3 was with your transcriber or if the problem was with 4 the tape? 5 THE WITNESS: No. 6 MR. COHEN: Okay. Thank you. 7 THE COURT: Anybody else? 8 MS. McNAMARA: Were there any 9 portions of the trial that were not audiotaped? 10 THE WITNESS: No. 11 THE COURT: Anymore Board questions? 12 If not, any follow-up the attorneys? 13 MR. KNAPP: No, Your Honor. 14 THE COURT: Okay. Thank you very 15 much. 16 MR. KNAPP: Hold it, Your Honor. One 17 second. 18 FURTHER REDIRECT EXAMINATION 19 BY MR. KNAPP: 20 Q. Let me ask you one more question: In the 21 record that you made corrections to that was 22 submitted in this case, for an. example, was there a 23 reference to Darley cussing the kids instead of 24 kissing the kids? 25 A. Yes. CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 Q. And were -- 2 A. Yes. 3 Q. -- mistakes like this throughout the 4 record? 5 A. Yes. There was one point in the trial 6 where they talked about -- where the witness was 7 saying, "Darley brought her kids in and cussed them 8 in front of me." And that's what the audiotape 9 said. And Sandy's notes had said, "Did Darley kiss 10 the kids in the store," which, to me, is totally 11 opposite. 12 Q. Right. And is this something you would 13 have found by proofreading the -- 14 THE REPORTER: Excuse me. I'm sorry, 15 I need to change my paper. 16 (Brief pause.) 17 Q. (By Mr. Knapp) Is this a mistake that you 18 would have found -- a person would have found, a 19 court reporter would have found by proofreading the 20 record? 21 A. Yes, sir. 22 MR. KNAPP: Pass the witness. 23 (Excerpt concluded.) 24 25 CHAPMAN COURT REPORTING SERVICE (512) 452-4072 1 THE STATE OF TEXAS ) 2 3 COUNTY OF TRAVIS ) 4 I, CAROLINE CHAPMAN, Certified Shorthand 5 Reporter Reporter in and for the County of Travis, 6 State of Texas, do hereby certify that the above and 7 foregoing contains a true and correct transcription 8 of all portions of evidence and other proceedings 9 requested in writing by counsel for the parties to 10 be included in this volume of the Reporter's Record, 11 in the above-styled and numbered cause, all of which 12 occurred in open court or in chambers and were 13 reported by me. 14 I further certify that the total cost for 15 the preparation of this Reporter's Record is 16 $54.00 and was/will be paid by 17 18 WITNESS MY OFFICIAL HAND this the 2nd day 19 of December, 1999. 20 21 22 Caroline Chapman /J.W. 23 CAROLINE CHAPMAN, Texas CSR #467 Expiration Date: 12/99 24 Certified Shorthand Reporter Travis County, Texas 25 111 W. Anderson Ln., Ste. 222 512-452-4072 CHAPMAN COURT REPORTING SERVICE (512) 452-4072