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Wednesday, October 30, 2013

Ind. Courts - Even more on: Morgan County Prosecutor to challenge expungement

Updating this ILB entry from Monday, Oct. 28th, about the Morgan County prosecutor challenging the constitutionality of the new expungement law, it appears he is not the only Indiana prosecutor resisting the new law. Madeline Buckley of the South Bend Tribune reports today in a story headed " Prosecutors rip '2nd Chance Law.'" Some quotes:

In one recent hearing, St. Joseph County Deputy Prosecutor Mark Roule was in the courtroom, though his presence was more of a formality.

Jacqueline Wilk was seeking to have her arrest expunged after two high-profile trials in the deaths of her children resulted in mistrials and dismissed neglect charges.

In line with the statute, it didn't seem that he could object, Roule told the judge.

Her arrest met the criteria for expungement under a new state law that took effect in July. It didn't result in a conviction, a year had passed and she faced no pending criminal charges.

Judge John Marnocha commented that he had no discretion under the law to view the case through its specific issues. Since Wilk's arrest met the law's three requirements, the judge had to expunge it.

This prong of the law, which allows people to have arrests and certain low-level convictions expunged, has encountered some resistance, particularly from prosecutors who are left powerless under the statute.

Yet others in the local legal community say the law -- sometimes dubbed the "Second Chance Law -- is an important tool for those with old, low-level convictions who are seeking employment. * * *

St. Joseph County Prosecutor Michael Dvorak said he believes the law should allow a judge discretion when hearing all expungement petitions, which would provide prosecutors a chance to argue and give victims in the case a say.

"It ought to be done on a case-by-case basis, not one size fits all," Dvorak said.

He said the law as it reads now provides no path for due process in the proceedings that erase a legally secured conviction.

"This would simply be cured by changing the 'shall' provision to a 'may' provision," Dvorak said.

Yet others say sealing records years after a sentence is completed should be a formality for the most minor of convictions.

"For your D felonies and misdemeanors, it probably should just be shuffling paper," Carrie Gaines, a South Bend attorney, said. * * *

The author of the original bill, Jud McMillin, a state representative from the southeastern part of the state, said he also wants to see the bill tweaked, yet the "shall" provision was not among what he wants changed.

McMillin cited shortening the time frame one must wait after completing a sentence and waiving filing fees for certain applicants as points he is drafting for possible amendment.

"I am a little bit disappointed that we have folks out there involved in the criminal justice system who refuse to see the need to give people who have already paid their debt to society an opportunity," McMillin told The Tribune.

The new law debuted in July to some confusion throughout the state, as people quickly filed petitions to erase their pasts and judges and attorneys tried to brush up on the exceptionally complicated legislation.

St. Joseph County has received eight petitions for expungement under the new law, according to the clerk's office.

In Elkhart County, Superior Court Judge Evan S. Roberts has handled about five petitions so far, though none met the statutory requirements, he said.

"It's so new that a lot of people are having concerns with the new law in the sense that it's difficult to understand and it's difficult to implement," Roberts said. "Give it some time like any new law and some of us will figure it out."

Posted by Marcia Oddi on October 30, 2013 09:39 AM
Posted to Indiana Courts