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One of the hard lessons book readers learn is that when you lend a book to a friend – sometimes even a good friend – you’re taking your chances that you’ll ever see it again. Indeed, one of the first lessons of borrowing a book from the library is not to re-lend it while it’s in your name, else you end up on the hook.
Multiply the book example 1,000-fold with much higher stakes – and that, in some ways, is the situation facing Allen Superior Court.
Attorney Robert Gevers II took custody of the official trial record of the case involving a client, Daniel Favela. The record includes a 13-volume transcript of everything said during the trial. More seriously, the record also includes all of the trial evidence – the originals of paper documents and other written evidence, plus photographs of the physical evidence and audio and video recordings.
The practice of an attorney taking the record to his or her law offices while preparing a criminal appeal is routine.
What happened later, though, is far from routine.
After the defendant’s mother said she wanted to talk to a different attorney, Gevers should have returned the official court record to the Courthouse or, at worst, the new attorney. Instead, someone in his office gave it to the mother, Adela Favela – who is not even a party in the case. She has refused to return the transcript and is in jail for contempt of court.
Adela Favela’s motivations are unclear, but it’s possible that in some ways, she may think she is entitled to the record. The side that seeks the appeal must pay the cost of the transcript, which can reach thousands of dollars. When the defendant has a public defender, the taxpayers foot the bill, but when the attorney is privately hired, the defendant pays. Daniel Favela’s family may have paid a large sum of money for the transcript.
Even though the defendant pays for the transcript, the original document is the property of the clerk of courts. Plus, remember that what Adela Favela has is not merely the transcript but the entire court record, complete with evidence.
All this could go down as simply an academic exercise if the stakes weren’t so high. Daniel Favela was convicted of murder. While the transcript of what was said in court can be re-created – albeit at cost – other records won’t be so easy, including a videotape the prosecution had edited to eliminate prejudicial material. The appeals court needs to be able to view the tape precisely as the jury saw it.
The knee-jerk reaction would be to call for tighter rules – yet officials in the judicial and legal communities can’t recall a similar incident ever happening, and the rules already state that only a party to the case may withdraw the file.
The courts could make copies of the official record – indeed, the rules expressly permit it – but it would cost taxpayers hundreds of dollars each time. The courts could forbid attorneys from taking records from the Courthouse, but that would punish the countless attorneys who have followed procedures without problems.
Now, the clock is ticking on Daniel Favela’s new attorney to file an appeal – which requires the official record. The accuracy of a re-created record will pose significant questions for the Indiana Court of Appeals.
Whatever is motivating Adela Favela from returning the record, with luck she will come to understand that this matter involves not just her son but the integrity of the court’s record-keeping system.
In any event, Daniel Favela’s trial record is destined to be used as an example in law schools and law firms, and indeed, to us all – don’t borrow something and lend it to someone else.
