MILWAUKEE -- Once you press the button, there's no going back. "I understand that deleting is permanent and can't be undone," the YouTube disclaimer says, warning that the video service will follow through when you press the "delete forever" button. Wisconsin judges are pressing that button. Frequently. As the result of a decision that judges defend as practical and transparency advocates decry as government secrecy, hundreds of videos of court proceedings are permanently inaccessible.
Blocked from a court hearing
After COVID-19 hit, Wisconsin courts quickly moved online. Judges started using Zoom to conduct court proceedings, with the public able to watch live via YouTube streams. FOX6 frequently watches and records the YouTube live streams to monitor important court cases and report what happened. On Wednesday, July 1, FOX6 was attempting to view and record a hearing for now-retired Milwaukee Police Officer Steve Van Erden. Van Erden is charged with operating a firearm while intoxicated on the job. He was charged just days after he retired with his pension, and now has a deferred prosecution agreement in which his charge will be lessened to disorderly conduct if he completes Veterans Treatment Court. Neither Van Erden nor his attorney have responded to requests for comment.
Virtual court hearing for Steve Van Erden
At the beginning of the hearing, a court employee told Judge Cynthia Davis the video was not appearing on YouTube. The court initially appeared to fix the issue, but the stream was interrupted several times; at one point, there were four simultaneous live streams showing different parts of the proceedings. During Van Erden's hearing, two FOX6 employees in two different locations attempting to use four devices and three different browsers could not view the proceeding live.
When FOX6 was finally able to access the video, Van Erden's hearing was over. The hearing was no longer live, but the recorded video was still available. However, the court deleted that video just 30 seconds after the public was able to watch it, effectively closing Van Erden's proceeding to the public. "Open courts are critical to the functioning of society," constitutional attorney William Sulton said. "It’s critical to delivering justice in a fair or impartial way. We don’t want to have secret courts in this country." Sulton, open records attorney Tom Kamenick, and private investigator and former Kenosha alderman Kevin Mathewson all say they were impressed with the courts' quick initial move to live stream proceedings, but are concerned about the decision to subsequently delete the videos. "The courts are kind of saying, 'We don’t trust the public with this,' or, 'The public isn’t trustworthy to have these recordings because something bad might happen,'" Kamenick said. "And that’s always a terrible attitude to take. We want to encourage transparency and accountability and getting a look into court proceedings is one of the best ways to do that."
As a private investigator, Kevin Mathewson monitors court proceedings. He says he knew videos created on YouTube live streams would remain on the site unless someone manually deleted each one, so he was surprised when he noticed the videos of court proceedings were disappearing immediately after the hearings.
"And right away I thought, 'What’s going on here? I gotta check into this,'" Mathewson said. Mathewson says his concern grew as he read emails among Wisconsin judges and court employees, which were turned over in response to a public records request. The emails show judges wrestling over what to do with the YouTube videos of court proceedings. Guidance from Judge Randy Koschnick, director of State Courts, said to delete YouTube recordings of court proceedings after their completion. "I sent it to my legal advisors to look into it," Deputy Director of State Courts Diane Fremgen wrote on April 6. "I just wanted the executive team to be aware we may have issues here...I worry if someone doesn't get the feed before we delete the video, we may have a lawsuit issue."
YouTube "delete forever" video option
"I know neither a YouTube recording nor the Zoom recording are the official record," Dane County Judge Juan Colas wrote on April 9. "But has Court Ops clarified that a recording either within Zoom or of a YouTube stream is not a public record that needs to be preserved? It is a record, created by a government official, not only for that official's own use." In an email to FOX6, Colas said he was raising questions and not opining about whether the YouTube recordings are public records that should be retained. "I really don't like the idea of using UTube to live stream court sessions," Grant County Judge Robert VanDeHey wrote in an email obtained through the public records request. "There are reasons why we have rules requiring permission to record court proceedings beyond having every disgruntled litigant questioning the official record because they heard something differently than the court reporter and have the recording to prove it. "Many years ago, when I still believed that there was no such thing as bad publicity, I allowed a sentencing to be recorded...Fifteen years later my children were able to access it, only then it had a voice-over essentially mocking the proceedings...video, which would otherwise not be available, could be manipulated, distorted, or falsified anonymously."
YouTube "This video is unavailable" message
In an email to FOX6, VanDeHey said he does not take issue with his colleagues' use of YouTube to stream hearings and described alternative ways he has kept his courtroom open, including providing direct access to the Zoom calls. Koschnick's guidance to delete the YouTube videos remained in place. FOX6 requested an interview with Koschnick; instead, he emailed a letter saying he does not consider the YouTube videos "part of the record retention rules" because they are not the "official record" of the court proceedings.
Virtual court hearing
"As you also may know," Koschnick continued, "The courts do not prohibit media outlets and others from recording, by their own means, a court's livestream feed on YouTube. Many media outlets are currently taking advantage of this, and it offers all an opportunity to provide coverage as if they had their own camera in the courtroom, without having to travel or potentially compete for space in a courtroom." Koschnick did not address what happens to the public's ability to access hearings when the live streams experience technical difficulties. FOX6 had previously emailed his spokesperson describing the inability to watch Van Erden's hearing.
'Using a loophole'
"I haven’t seen any good justification for deleting the videos," Kamenick said. "It takes more work to delete the videos than it would for them to just let them stay on for people to watch in the future." Kamenick points to Wisconsin's Open Records law, which categorizes government recordings as records that should be retained. "There’s unfortunately not an enforcement mechanism for the public to say, 'Hey you destroyed this, you shouldn’t be, and you should do something about this,'" Kamenick said. "There’s a mechanism for enforcing a failure to turn over a record, but once the record’s gone, you can’t force them to turn it over anymore. So they’re kind of using a loophole to get around that." Kamenick says records retention is important because it ensures the public can access information about how government works. He says keeping the YouTube videos of court proceedings could help protect against the judges' concerns about video manipulation because there would be an official video record of what actually happened. "People all around the state are seeing judges erasing public records willingly every single day," Mathewson said. "And I think that sends a message to other government agencies that 'Hey, if the judges can do it certainly can we.'" In some cases, people who cannot access the live stream of the court proceeding are able to order a transcript, which is considered the "official record" of the court. Some courts have stenographers who transcribe the proceedings as they happen; others use their own audio recordings to transcribe later. In the case of Steve Van Erden's hearing, the transcript is only a few pages with an estimated cost under $15. In other cases, however, transcripts can cost more than $400 and can take several weeks to prepare.
"I think cost is a major concern and it is prohibitive for most folks," Sulton said. "Look, we live in a country, a city, a county in which the average family of four cannot an unexpected bill of $400. Most of the transcripts I’ve seen exceed that cost, and most folks simply cannot afford to pay it." That's assuming the transcript exists. In a letter to Mathewson, who had requested a transcript of a Kenosha County Circuit Court hearing, Clerk Rebecca Matoska-Mentink said the quality of the audio recording was so poor that the court reporter was not able to prepare a transcript, and the audio system has since been adjusted. Mathewson says he was only able to record the beginning of the hearing as he was watching live. The court deleted the YouTube video recording of the court's live stream. This leaves no record of who said what in a court hearing, and potentially several more, that's supposed to be open to the public. "So even if I went to court or anyone else went to court, and said, 'Judge let me see these videos,' that judge cannot grant any relief because that video is gone," Mathewson said. "And ironically enough, you’re going to be asking a judge when he himself or she herself is erasing these videos, too. So how do you get a good shot at oversight or questioning these policies?"I don’t know that there’s any avenue to fix what’s going on other than making the public aware," Mathewson added.