Is Everything Recorded in Court?

Updated: May 11


President John F. Kennedy sitting at his Oval Office desk. The pen and pencil set next to Kennedy's right hand concealed an 'on/off' switch which led to a hidden tape recorder. The desk itself was wired with hidden mike's that nobody ever knew about.



SENATOR THOMPSON: “Mr. Butterfield, are you aware of the installation of any listening devices in the Oval Office of the President?”

Alexander Butterfield: (five-second pause) “I was aware of listening devices, yes sir”

Thompson: “When were those devices placed in the Oval Office?”

Butterfield: (six-second pause) “Approximately the Summer of 1970, I cannot begin to recall the precise date. My guess, Mr. Thompson, is that the installation was made between, and this is a very rough guess, April or May of 1970, or perhaps the end of the Summer or early Fall of 1970”


- Testimony of Alexander Butterfield before the Senate Watergate Committee, 16 July 1973.



Are Court proceedings recorded?


“I’ve got a little black book” a District Court Judge once told me over lunch with a smile, “and into that book I put the name of every solicitor that has taken me to the High Court”.

He wasn’t kidding. Judges dislike being ‘Judicially Reviewed’ (JR) by their brethren in the High Court over decisions they have made. Some judges see it as a form of playground “tattle-tales”, running with stories.

Others see it as a money-grubbing exercise. Still others look on it as a personal insult. Resentments are not unknown. Some have been known to bear a grudge so fierce against a solicitor that has ‘reviewed’ them in the High Court that it burns with an intensity that years cannot blunt.


It’s an unwritten rule among solicitors everywhere that if you decide to “JR” a judge, you bear the consequences.

“Look at them” one Judge was heard to mutter under his breath in his chambers, pointing at a misspelling of his surname in a High Court decision unfavourable to him “they (the High Court) can’t even spell my name right”.


“I’ve got a little black book” a District Court Judge once told me over lunch with a smile, “and into that book I put the name of every solicitor that has taken me to the High Court”.


So yes, court proceedings are recorded. Why? To use as a record obviously. Why? Because over the years some lawyers around the country had been bringing absurd High Court applications for Judicial Review. This development (the recording of district court proceedings) is still relatively new, but it was implemented in part because of the escalating cost of JR’s.


Judicial Review is a mechanism to challenge decisions of lower courts and public bodies. In Ireland it has been used to complain -that really is the word- to the High Court about a decision that a Judge of the District (or Circuit) Court has made.

Here lawyers argue that the District Court Judge has made a mistake in law, that they have done something they should not have done or didn’t do something they should have done.


THIS PROCESS TYPICALLY INVOLVES involves the lawyer for the Defendant preparing an affidavit saying that the Judge had said this or that. This affidavit is then brought before the High Court. At this point the Judge is then made aware that a decision of theirs is being complained about in the High Court and is invited to make a reply if they wish to.


As you can imagine the actual words used in court are a source of heated debate. The lawyer usually asserts that the Judge has said something, and the Judge may later deny ever having said it or suggest that their words were taken out of context.


All of this led to a flood of often feeble Judicial Review (JR) applications coming into the High Court. Those had consequences, principally money. Prior to 2011 a successful judicial review could net a firm EUR30,000 in legal costs, an extraordinary sum of money.

A few unscrupulous law firms then proceeded to bring multiple JR’s before the High Court, often on flimsy pretexts. To these law firms if a Judge made the slightest mistake in disposing of a case, that mistake was used as an excuse to issue High Court proceedings.


I once spoke to a judge about a criminal law solicitor who the media had reported had earned in excess of EUR300,000 from the criminal legal aid scheme in one year. Commenting on the multiple High Court proceedings that this solicitor had taken against various decisions of his, the Judge told me that “he [the solicitor] has probably made about EUR200,000 of that against me”.




When the President does it, that means it’s not illegal.


Initially it was felt that the fascination with secretly recording what was said in the Oval Office of the White House was a product of President Nixon’s infamous paranoia and chronic belief that people, as presidential historian James Schlesinger once put it “were out to get him”. But as the Nixon tapes were slowly released under court-order, and presidential libraries began to be searched, another revelation was exposed. Presidents had been secretly recording conversations since as far back as 1940. That included Lyndon Johnson, John F. Kennedy, Dwight Eisenhower and Franklin D. Roosevelt.




President Franklin Roosevelt's recording control box was placed in the top left drawer of the desk
President Roosevelt's secret recording control box was placed in the top left drawer of the Oval Office desk.

In 1939 the Supreme Court of the United States banned the use of wiretapping. In May 1940 President Franklin Roosevelt sent an authorisation to FBI Director J. Edgar Hoover to use “listening devices” against people suspected of espionage or subversion. Three months later in August 1940 the first bugging devices were installed in the Oval Office of the White House, in contravention of the Supreme Court ruling the year before.


Nobody knew that Kennedy was recording them, not even his brother Robert Kennedy, the Attorney General.


Roosevelt’s reasons for bugging the White House were precisely the same reasons that district courts around Ireland began installing audio recording devices: he was tired of being misquoted.


In 1940 Roosevelt was fighting a bitter re-election campaign. His Republican opponent, Wendell Willkie, attacked him as a war-mongering near-dictator. Willkie was starting to pull even with Roosevelt in the polls.


Roosevelt panicked that a single misquoted comment, especially by the media, might trigger a political disaster. The previous year as war broke out in Europe controversy erupted when after a closed-door meeting with Senators, Roosevelt was later misquoted as having said that America’s defence frontier was the Rhine River in Germany, an error so bad it would have committed the United States to intervene in Europe if Germany attacked (which it later did) France.


When Dwight Eisenhower became president in 1952 he expanded the use of presidential wiretaps in the White House. Roosevelt’s secret recordings weren’t discovered until 1978. Eisenhower’s weren’t found until 1979. Eisenhower’s approach was more high tech but the reasoning remained the same.


When his Cabinet entered the Oval Office for a July 1954 meeting Eisenhower flipped a concealed toggle switch on his desk, triggering an electrical current that lit up a light panel on his secretary’s desk next to the Oval Office. On this signal the secretary turned on a Dictaphone Dictacord A2TC machine hidden in a nearby storage closet. According to presidential historian William Doyle’s Inside the Oval Office the machine “was a two-foot high, forty-five pound machine designed for police, fire, emergency and courtroom recordings”.


Not a single member of his Cabinet knew they were being recorded by hidden mike’s he had had installed in the walls around them. Eisenhower could be heard laughing and giving his own opaque reasons for having things recorded. “You know boys” the President begins, “it’s a good thing when you’re talking to someone you don’t trust to get a record made of it. There are some guys I just don’t trust in Washington and I want to have myself protected so that they can’t later report that I said something else”.


This is precisely the reason that court proceedings are recorded in Ireland: not to inhibit frank advocacy, but to cut down on nonsensical litigation based on conflicting accounts of what a Judge has or has not said, resulting in huge costs to the taxpayer.


Still, the problem of certain solicitors bringing spurious review applications to the High Court continues. Attention has been turned to a few law firms. A Judge told me late last year that he was aware that three specific firms of solicitors in Ireland “were repeatedly coming to the attention of the High Court, and not for a good reason”. All three firms are predominately criminal law firms practicing in the east of the country.


The recording devices in district courts are very evident in court. A large digital rectangular box is prominently displayed at the front of the court, close to where the court clerk is sitting. When the court is in session the digital display lights up and displays the time, indicating that recording is now taking place. When the judge has left the bench, the display switches off indicating that recording has ceased. Everything is quite evident. Everyone knows when they might be recorded or not.



_________________



When the Bay of Pigs operation to remove Fidel Castro ended in disaster President John F. Kennedy felt that he had been betrayed by the military. The behaviour of the Joint Chiefs of Staff enraged him. “Those sons-of-bitches with all the fruit salad just sat there nodding saying it would work” he complained bitterly.



To keep the system completely secret he ordered the Army Signal Corps to buy a recording machine from an electronics dealer in Washington.
The purchase was to be made in cash so no record of it would ever exist.


After the failed operation some of the military claimed -falsely- that they had been against the operation all along. Kennedy wanted to guard against this in future.


As William Doyle makes clear in Inside the Oval Office, Kennedy ordered the Secret Service to turn the White House “into a private recording studio”. The agent in charge was Robert Bouck. The Secret Service agreed to plant mike’s all around the Oval Office but insisted on not controlling when the system was recording or not.


That would be Kennedy’s responsibility.


Nobody knew that Kennedy was recording them, not even his brother Robert Kennedy, the Attorney General.

To keep the secret system completely secret Bouck ordered the Army Signal Corps to buy a reel-to-reel recording machine and monitor from an electronics dealer in Washington. The purchase was to be made in cash so no record of it would ever exist.


The on/off switch for the machine was disguised in the pen and pencil set on Kennedy’s desk. When the president pressed down the recorder began. When he pressed it again it stopped. Concealed microphones were placed on the coffee table near the Oval Office fireplace and a switch on a nearby lamp. When the recording tapes were full Bouck would replace them, place them into an envelope and hand them to Kennedy’s secretary who placed them in a special safe.


When Bouck got the news that Kennedy had been assassinated just after 1p.m. on November 22, 1963, he immediately ran to the West Wing and began dismantling all of Kennedy’s recording systems. While the entire nation was overcome with grief over the death of the president, Bouck worked solidly through the afternoon in the Oval Office, all alone. He disconnected the reel-to-reel recorders, removed the microphones and every single wire connecting them. The operation took hours.


“By the time the president’s body returned to Washington that night” remembers Doyle “almost all traces of his taping system had vanished”.




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