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Second thoughts on second chances

On Monday's Case Update I briefly mentioned a 12th District case, State v. Gross, which had affirmed the denial of an application to expunge an arrest record.  I'd thought of doing a little bit more on the decision, maybe a couple paragraphs at the end of the post, but got pressed for time.

I've thought about it since then, and have concluded that the decision merits its own post.  So here it is.

The case is pretty simple.  Robert Gross was charged with public indecency in 2007, went to trial, and was acquitted.  Two years later, he filed an application to seal the record of his arrest, pursuant to RC 2953.52.  The trial court conducted a hearing, said he'd review the matter, and subsequently summarily denied the motion. 

The statute requires the court to "weigh the interests of the applicant in having the records pertaining to the applicant’s conviction sealed against the legitimate needs, if any, of the government to maintain those records."  Unfortunately, the trial court hadn't provided any reasoning for its denial of the motion.  No matter, the appellate court decided; although Gross argued on appeal that the trial court had erred in denying his request to seal the records, he didn't specifically raise the argument that the trial court hadn't made any findings.  In short, the challenge was to the decision, not the way it was made, and since appellate courts presume the regularity of the proceedings conducted below, that's the end of that.

There are several problems with this, the first of which is the elevated degree of nitpicking involved in the result.  The judge didn't make any findings, which you agree was wrong, but because I only argued that he made the wrong decision, rather than that the way he made the decision was wrong, you're going to presume that he made it in the right way and that it was the right decision?  It would seem that the proper result here, at a minimum, would be a remand to the trial judge to have him give his reasoning.

The bigger problem with the court's opinion, though, is that it's based on an outdated and confused understanding of expungement law.  The court notes that the defendant bears the burden of demonstrating the need to seal the record, citing as the basis for that the 10th District's decision in State v. BrownBut Brown's an even bigger mess.  That, too, involved an application to seal a record of arrest under RC 2953.52, but the court began by explaining that "expungement is the removal of a conviction from a person's criminal record" (my emphasis), which is done under RC 2953.32.  The court then found itself constrained by the Ohio Supreme Court's interpretation of the arrest-sealing statute in the 1979 Supreme Court decision in Pepper Pike v. Jane Doethat

Typically, the public interest in retaining records of criminal proceedings, and making them available for legitimate purposes, outweighs any privacy interest the defendant may assert.

But Pepper Pike wasn't an interpretation of the statute, because at the time the case was decided, there was no statute allowing for the sealing of an arrest record.  The defendant in Doe had been arrested and charged with assault, with the case ultimately dismissed; as the Supreme Court found, "it is clear from the context and history of the matter that appellant's former husband and his current wife used the courts as a vindictive tool to harass appellant."  At that time, there was a provision for expungement of a criminal conviction, but none for sealing records of an arrest.  Doe's lawyer nonetheless argued that a court, under its inherent equitable powers, could order it, and the Supreme Court agreed.  Five years later, the statute was enacted.

The argument that Doe should be looked at for interpretation of a statute which wasn't enacted until half a decade later is weakened even more by the Supreme Court's subsequent pronouncements on expungement, for example, the 1999 decision in State ex. rel Gains v. Rossi, where the court held that the expungement provisions "must be liberally construed to promote their purposes," or the 1988 decision in State v. Bissantz which held that subsequent revisions to the statutes made it clear that it “places a greater emphasis on the individual’s interest in having the record sealed."

To be sure, the court was addressing the conviction expungement statute in Rossi, but that leads to the third problem with the Ross decision:  the assumption that the standards for determining whether to seal a conviction and whether to seal an arrest record are the same.  They're not.  In the first instance, the defendant has been convicted of a crime.  There's nothing that requires the government to remove that record; there is no provision in Federal law, for example, for expungement of a conviction.  Given this, it's at least tenable to argue that the defendant should bear some burden in demonstrating that his interest in having the record of his conviction sealed outweighs the government's interest in having the record of that conviction available. 

But that argument disappears when we're talking about an arrest.  Unlike the situation when the statute was passed in 1984, the Internet has made arrest and court records easily available to anyone who wants them.  Ross's interest in not having a prospective employer know that he was charged with public indecency is obvious; the state's interest in maintaining the record much less so.

I'm not a libertarian, but in this respect I am:  the government shouldn't mess with you unless you give them some reason to.  The government charged Robert Gross with a crime, and a jury decided he wasn't guilty of it.  That should be the end of government's involvement in his life.  Instead, he's got to explain to every future employer or landlord or who knows who else how he came to be arrested for public indecency, and a court of appeals decided it wasn't even going to bother with taking a look at why a judge thought that keeping those records was any of the government's business.  I'm sorry, but that's wrong.

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