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Thursday, February 22, 2007

Ind. Courts - Still more on "Businessman's criminal rap sheet erased in legal deal"

Ruth Ann Krause of the Gary Post Tribune writes today that:

Lake Superior Court Judge Diane Ross Boswell, who last month ordered the destruction of public records related to felony convictions for Crown Point businessman Dominic Pitzel, has rescinded the order.

Boswell, in an order dated Tuesday, amended her previous directive to expunge records in the Lake County clerk's office.

This is the reporter's third story on the issue - see yesterday's ILB entry. More from today's story:
In an interview, Boswell said she was in the process of reviewing her decision "to make sure we're doing it right." That review came about as a result of a discussion as to whether she could order the files expunged, which veteran attorneys handling criminal cases have described as unprecedented.

"They asked to have them expunged," Boswell said of defense attorney Marc Laterzo and special prosecutor Michael O'Neall, the Jasper County prosecutor who was appointed to the case. Lake County Prosecutor Bernard Carter said he is a friend of Pitzel and his father has served as a political campaign advisor.

"They had an agreed order to have them expunged," Boswell said.

The agreement, called a stipulation to post-conviction relief, does not indicate both sides asked that the records be destroyed. Both sides asked that the convictions be vacated, or set aside, for theft of less than $100 in 1975, pointing a firearm in 1976 and burglary in 1985. * * *

Boswell said she would research case law and discuss the issue with the Indiana Supreme Court division of state court administration, which works with county clerks and judges.

John Newman, director of information management with the division of state court administration, said administrative rules outline a retention schedule for felony case files. Criminal felony records must be maintained for 55 years after the case is closed, but a judge's order takes precedence when an expungement is granted.

Administrative Rule 7 states that the circuit court clerk, judge or other officer must seek written authorization from the division of state court administration to destroy the records. That provision doesn't apply when a judge orders an expungement, Newman said.

Indiana law allows a person who is arrested but not charged to ask the records be expunged in cases if there is mistaken identity, no offense was committed or there is a lack of probable cause that a crime was committed. There is no section dealing with judges ordering criminal case files destroyed.

Last week when The Post-Tribune requested Pitzel's case files, Chief Deputy Clerk Sylvia Brown took Pitzel's burglary case file out of a reporter's hands and said, "You can't see this record. It's been expunged. You can't have it. There'll be a lawsuit over it if there's a story. I'm sorry."

Brown said Wednesday she was in the process of expunging the records, as Boswell had ordered and that the files had not been destroyed. The burglary file, however, had extensive black marker on the docket sheets for the 1985 case. That file was not available Wednesday.

Asked what would happen if Boswell decides they shouldn't be destroyed after information already has been deleted from the public records, she said: "We'll try to recreate them."

Several questions occur to the ILB, including (1) The story implies that under the court rules a judge may order criminal records expunged and the order will be carried out, even though these records otherwise must be maintained for 55 years: (2) What does "expunge" mean - does it mean totally destroy or is it the equivalent of "seal"?

Posted by Marcia Oddi on February 22, 2007 07:37 AM
Posted to Indiana Courts