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Appeals court hears challenge to reconstructed record and defendant’s access to counsel in Commonwealth v. Bolling
Summary
At oral argument, defense counsel argued gaps in a reconstructed trial record and a constructive denial of counsel required a new trial; the Commonwealth said the record suffices for meaningful review. The panel questioned whether missing material would likely have changed the outcome.
An appeals-court panel heard oral argument in the case identified in court as 24 P.1 807, Commonwealth v. Bolling, on whether gaps in a reconstructed trial record and the defendant’s limited ability to consult with counsel require a new trial.
The defense attorney, Nick Madison, told the panel that the reconstructed record omitted key evidence and that the defendant suffered a “constructive deprivation of counsel.” Madison said a contemporaneous electronic recording of the trial was not available and that his reconstruction — based on the defendant and trial counsel’s recollections — left “significant gaps” that make meaningful appellate review impossible. “Due to the inadequacy of the reconstructed record, as well as, a constructive deprivation of counsel and ineffective assistance of counsel, a new trial is required in this case,” Madison said.
Why it matters: the appeal raises two distinct procedural issues that can individually or jointly require retrial — whether a reconstructed record permits meaningful appellate review and whether the defendant was effectively denied the ability to communicate with counsel during a bench (jury‑waived) trial.
Madison told the court the reconstructed record omits at least one explicit exchange: he said trial counsel remembered asking the complaining witness on cross-examination whether she had a drug problem but could not recall the witness’s answer. Madison said the absence of that answer is material because the defense’s theory centers on credibility and impeachment. He also told the panel that the FTR system (the vendor that records hearings) either was not turned on or did not function for the trial in question, leaving no contemporaneous audio to transcribe.
On the access-to-counsel issue, Madison argued that the defendant was seated apart from counsel, attempted during trial to get counsel’s attention, and was told to be quiet by a court officer. He pointed to testimony at the motion-for-new-trial hearing that the defendant was handcuffed and repeatedly tried to communicate with counsel but could not, and he cited precedent the defense contends requires automatic relief when communication was effectively blocked.
Laurie Levinson, appearing for the Commonwealth, disputed the defense’s framing. Levinson told the panel the reconstructed record is sufficient for appellate review and that the portions the defense identifies as missing do not change the judge’s credibility findings. “There is enough in the reconstructed record for you to consider the claim,” Levinson said, and she noted that the trial judge who denied the motion for a new trial found that additional evidence about the complaining witness’s drug use or family problems would not have altered the outcome.
Panel questions focused on materiality and timing. Counsel and the panel discussed whether evidence of the complaining witness’s alleged drug use — and whether family guardianship of the child resulted from that use — was developed sufficiently in post‑trial materials to show motive to fabricate. The panel also examined whether defense counsel could have raised seating or communication concerns earlier, and whether any failure to object before verdict foreclosed appellate relief.
No ruling was announced. After argument the panel recessed; the court did not state a timetable for decision from the bench.
