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Saturday, February 24, 2007

Ind. Courts - Some perspective on "Businessman's criminal rap sheet erased in legal deal" [Updated]

First off, two more items relating to this story. Thursday Ruthann Robinson had a good overview of the events in the NWI Times. Some quotes:

In July, Dominic Pitzel, 53, a Crown Point businessman, petitioned the court to clear his record of his more than 20-year-old felony convictions.

It wasn't the first time Pitzel requested such an action in the cases. It's just the first time it succeeded.

However, Lake Criminal Court Judge Diane Ross Boswell found out she may have gone too far on Jan. 2 when she not only ordered the robbery, aggravated assault, theft, burglary, pointing a gun and carrying a handgun without a license convictions set aside -- but all records of those convictions destroyed, court records show.

In 2000 and 2001, two special prosecutors on the case -- appointed because Lake County Prosecutor Bernard Carter disclosed Pitzel's father is a "personal friend" -- asked judges to deny the post-conviction requests made by Pitzel's then-lawyer Willie Harris.

But the second special prosecutor assigned to the case, Michael D. O'Neall, of Jasper County, later reversed his position and asked the judge to comply with Pitzel's request, which had been made by attorney Marc Laterzo.

O'Neall said Wednesday he agreed only to the conviction being set aside, not the records destroyed. The stipulation filed in January makes no mention of an expungement agreement.

"I'll tell you, that's the last special prosecution case I'll take from Lake County," O'Neall said.

The court's electronic docket shows no record of Laterzo entering his appearance or of a new post-conviction relief petition being filed. However, a check of the resurrected files Wednesday turned up both as being filed in open court July 18. * * *

After reading a local media account [that would be the Gary Post Tribune, which ran three stories] of the unusual order and the discrepancies in the record, Senior Lake Criminal Court Judge Salvador Vasquez said he spoke with Boswell about the case.

He said expungements are rare, and there are narrow guidelines for granting them.

In fact, legal experts say the only Indiana law under which arrests can be expunged is when the petitioner has been free from subsequent arrests. Records show Pitzel was arrested in 2003 for contributing to the delinquency of a minor, a charge that prosecutors dismissed in July 2005 after Pitzel paid a fine and went six months without an arrest.

"There was never a hearing on this matter," Vasquez said. "You just don't make quick decisions. But to err is human, and when you make a mistake, you've got to correct it."

Thus, Boswell's order Wednesday to save the files from destruction.

Lake County Chief Deputy Clerk Sylvia Brown said the Jan. 2 expungement order was one of only a handful she has seen in her many years in the clerk's office. That's why she called the state court administration for guidelines, she said.

Brown said she began following the expungement order by erasing computer records of Pitzel's convictions. Her next step was to destroy the hard copies, but Boswell's new order stopped that process.

Brown said she did not know if the computer files would be re-entered.

The Gary Post Tribune has an editorial today about the events. Some quotes:
Is there any wonder why people become fed up with the criminal justice system in this country?

The case of Crown Point businessman Dominic Pitzel is the perfect example. Pitzel has convictions for burglary, theft and pointing a firearm. He did, anyway. The record has been expunged. The court records have disappeared. It's all as if nothing ever happened.

Lake Superior Court Judge Diane Ross Boswell signed the order clearing Pitzel's record. But after the Post-Tribune exposed the sweetest of sweetheart deals, the judge rescinded her order, saying she wanted to make sure things were being done properly. * * *

[Attorney Mark Laterzo] justified the post-conviction relief by saying Pitzel has pretty much been a model citizen since his convictions 20 and 30 years ago. Not exactly. Pitzel pleaded guilty to intimidation for threatening a Crown Point police officer, and criminal recklessness for running a Crown Point firefighter off the road in 1993. The firefighter was returning to the fire at Maple Manor, the former county home for the poor, which Pitzel bought in 1991.

We encourage Boswell to stand firm with her decision to rescind the order. There's nothing wrong with admitting to a mistake. It also will restore some faith in the system.

Here is a list the ILB entries on this expungement.

These stories have caused the ILB to do some research on the subject of expungement of adult criminal records in Indiana.

"Expunge," "purge", "seal", "conviction set aside" -- do these terms all mean the same thing or are there distinctions? Are there statutes that cover these actions? Are there court rules? Is there case law?

The only statute I have located, IC 35-38-5 deals with expungement of arrest records. It is quite limited, applying only in the case where an individual is arrested but criminal charges are not filed, or where criminal charges are dropped because of mistaken identify, no offense was in fact committed, or there was an absence of probable cause. The procedures to be followed are set out in the statute.

A check of the Trial Rules shows no occurances of the words "purge" or "expunge."

The word "seal" does appear, but not with respect to the sealing of criminal records. For example, Rule 5(G) deals with "Filing of Documents and Information Excluded from Public Access and Confidential Pursuant to Administrative rule 9(G)(1)." Reference also is made to records sealed by the court pursuant to IC 5-14-3-5.5.

Nothing relevant was found in the criminal procedure rules or the post-conviction remedies rules.

Rule 9 of the Administrative Rules lists at (G) "Court Records Excluded From Public Access." Under (1): "Case records. The following information in case records is excluded from public access and is confidential:" we have "(c) Information excluded from public access by specific court order;" and "(g) All orders of expungement entered in criminal or juvenile proceedings." The commentary that follows (G) remarks:

This section does not limit the authority of a judge in a particular case to order the sealing of particular records or to exclude from public access during the pendency of a case motions to suppress or motions otherwise seeking to limit or exclude matters from presentation at a jury trial, and all proceedings and rulings thereon. Such exclusion of public access to pre-trial proceedings should be invoked sparingly and only when the court is convinced that admonitions to prospective jurors and the jury selection process will likely be inadequate to assure a fair trial.

The prohibition of access to addresses under this section includes, without limitation, mail and e-mail addresses.

With respect to expungement orders excluded from public access under section (G)(1)(g) of this rule, an interested person may seek a copy or other verification of an expungement order by filing a request under section (I) of this rule.

In addition to deliberative material excluded under this rule, a court may exclude from public access materials generated or created by a court reporter with the exception of the official transcript.

Section 9(H) is titled "Prohibiting Public Access to Information In Court Records." This is a fairly long section that may bear close reading. However, the commentary following it begins:
This section is intended to address those extraordinary circumstances in which information that is otherwise publicly accessible is to be excluded from public access. This section generally incorporates a presumption of openness, and the need for demonstrating compelling grounds to overcome the presumption.

Parties should be aware that their request is not retroactive. Copies of the public record may have been disseminated prior to any request, and corrective action taken under the provisions of this rule will not affect those records.

That would seem to rule out records of criminal convictions.

The "Court's Bench and Media Guide" has a section on expungement:

Expungement

Expungement is a process through which the legal records of an arrest can be destroyed or returned to individuals under narrow circumstances. However, Indiana’s expungement statutes do not allow records of convictions to be sealed after the passage of time. Indiana also has a procedure under which the distribution of criminal histories can be limited but that is not considered an expungement under Indiana law. Both processes include filing a petition with the sentencing court. The judge can decide the case based on the pleadings or schedule a hearing which would be in open court. These processes cannot be used to limit disclosure of convictions if the person has been classified as a sex offender whose identity has been posted to the sex offender registry website.

Indiana’s juvenile statutes also contain expungement provisions. A person may petition a juvenile court to expunge records pertaining to the person’s involvement in juvenile court proceedings (delinquency allegations or CHINS allegations). This petition may be filed at any time with the juvenile court.

I am unaware of the basis for the underlined sentence above.

Some other jurisdictions appear to allow expungement and have formalized procedures. For instance, here is a "how-to" page from the Utah Court's site. It begins "Getting a record expunged is the process of sealing a criminal case after the case has been resolved."

Michigan has a statute relating to the setting aside of certain convictions. This is apparently treated as an expungement - see this Q&A from Legal Aid of Western Michigan:

Q - I have been denied public housing or employment because I have a criminal conviction on my record. Is there anything I can do to clear my record of that conviction?

A. - Yes, you might be able to have your conviction set aside (expunged). If you are able to set aside (expunge) your criminal conviction, it is treated the same as if that conviction never occurred. Therefore, on housing or job applications, when asked whether you have ever been convicted of a crime, you can answer "no."

Finally, a question that must be asked is - What is the value of expungement in the era of the internet? Adam Litpak of the New York Times wrote about this in an Oct. 17, 2006 column and I posted an entry quoting from the column here. Here is just a smidgen of what he wrote:
In 41 states, people accused or convicted of crimes have the legal right to rewrite history. They can have their criminal records expunged, and in theory that means that all traces of their encounters with the justice system will disappear. * * * But real expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized *** Lida Rodriguez-Taseff, a lawyer in Miami, tells her clients that expungement is a waste of time. “To tell someone their record is gone is essentially to lie to them,” Ms. Rodriguez-Taseff said. “In an electronic age, people should understand that once they have been convicted or arrested that will never go away.”
Once something is posted on the internet, it may be there forever, as college students who have posted photos of themselves behaving badly on MySpace have found out. Everything that has ever been written about you in a newspaper or even in a blog is likely to pop up in a Google search -- once information has appeared online, there is really no way to put it back in the bottle. And that is the irony in the Gary story.

[Updated 2/25/07] As if to place an exclaimation point on that last sentence, the Gary Post-Tribune has a story today by Andy Grimm that rehashes in detail the facts of the convictions businessman Dominic "Nick" Pitzel sought to have expunged from the record. A quote:

"I can tell you if he wanted that stuff to go away, it hasn't gone according to plan," said one observer who knows Pitzel.
More from the story:
The outright destruction of hard copies of the records, rather than simply removing references in computer databases for the county courts and state and national law enforcement, was nearly unprecedented. Clerk's office staff said they had destroyed only five felony files in 20 years.

Winning expungement in a felony case where the defendant pleaded guilty is rarer still, said Valparaiso University Law Enforcement professor David Vandercoy. Even more exceptional is expungement of records in a case where the defendant pleaded guilty, or was tried and found guilty.

"The only time you get expungement of records regarding a conviction are in limited circumstances where you've got a gubernatorial pardon," Vandercoy said. "And even if you get the pardon that removes the conviction, that would just be something that was included in the record."

Expungement of records seems to be a procedure reserved for defendants who likely never belonged before a court in the first place, Vandercoy said.

State law appears to provide for expungement of records only in cases where the defendant was arrested and never charged, was arrested or charged in a case of mistaken identity.

Posted by Marcia Oddi on February 24, 2007 05:41 PM
Posted to Indiana Courts