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Complexity of new expungement law raises questions

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expungement-factbox1.gifCrowds rushed the Marion County Clerk’s Office on July 1 under the misunderstanding that was the only day people could petition to have their criminal records expunged. “We probably had 200 to 300 people,” said Scott Hohl, chief of staff for the office.

Indiana’s new expanded expungement law took effect July 1, but the crowd that day also illustrated a fear voiced by many lawyers and court staff – that rushing to the courthouse is likely a big mistake. Those familiar with the complex law say the best advice is the same as the usual for second chances: Don’t screw it up.

“You have one opportunity to have your records restricted,” Hohl said. If the petition fails, the law requires a three-year wait before trying again.

Another caution for people seeking expungement: Represent yourself at your own risk.

“I would not advise individuals to try this by themselves,” said Jerome Ezell, a sole practitioner in the Porter County town of Kouts. Ezell retired three years ago as a legal adviser for the Indiana State Police where he assisted the attorney general’s office when it opposed expungement requests under prior laws.

Formerly on “the other side, so to speak,” Ezell now finds himself counseling people who may be able to clear a much wider range of

criminal records under House Enrolled Act 1482. Ezell, a member of the Lake County-based James C. Kimbrough Bar Association, will be a presenter at an informational forum on the new law in Gary on July 20. Attorneys will be on hand to advise people seeking expungement.

“A lot of people think it’s an automatic grant,” Ezell said of another common misconception. The law permits expungement of conviction records for offenders who have not been convicted or charged with subsequent crimes for a number of years. In general terms, the more serious the offense, the longer the clean criminal record must be to qualify.

Ezell said while the new law is more complex in its requirements, it lowers a petitioner’s burden to obtain an expungement. Under prior laws, petitioners had to prove an arrest was improper, the result of mistaken identity or there was lack of probable cause. “It was just about impossible to prove,” he said.

While the fact burden on a petitioner now is lower, the new law raises a financial burden for many: The statute requires payment of the $141 state court civil filing fee and forbids fee waivers for many expungement requests.

Bennie Muhammad, executive director of forum sponsor Gary Commission on the Social Status of Black Males, said the filing fee requirement is no small hurdle for many people who want to expunge their records. Nonetheless, interest in expungement is great. He said the group has received calls from people in Virginia, Dallas and Chicago inquiring about getting their Indiana conviction records expunged.

“From what I am seeing and hearing in our promotion of this forum, it is actually lifting hope in the lives of many,” Muhammad said. Felony convictions cast a long shadow not just on employment prospects, he said, but also in terms of eligibility for federal education and housing aid, among other things.

Still, the various requirements in the five categories of expungement have raised plenty of questions for attorneys.expungement-factbox2.gif

“It’s really pretty complicated,” Indianapolis private practice attorney Libby Milliken said of the statute. “The requirements for petitions are pretty specific and pretty technical.”

Milliken is working on about a half-dozen expungement requests under the new law and gets calls almost daily about it. Some callers ask about forms they might be able to use to do it themselves. She counsels against it, and besides, the forms for pro se litigants aren’t yet available. For some categories of expungements, even developing forms for attorneys is proving to be a puzzle.

“The statute is so detailed and there are so many different case types to file for … .It is very difficult to formulate forms for this,” said Tracy Beechy-Nufer, director of trial court management for the Indiana Division of State Court Administration. “It’s a huge project.”

The hope is to have most forms available on the state court website by mid-August, Beechy-Nufer said. Some forms are rather straightforward. A petition to seal records for an arrest that didn’t result in conviction, for instance, has far fewer requirements than a request to expunge records for a 20-year-old armed robbery conviction. Serious felony convictions require the consent of a prosecuting attorney and are left to the discretion of a judge.

Marion County deputy prosecuting attorney Andy Fogle has been researching the law’s requirements. He expects requests for expungement that trigger prosecutor consent also are likely to require hearings and victim notification. It’s not unrealistic to expect prosecutors may get requests from people wanting to expunge records of serious felonies they committed as far back as the 1950s or 1960s.

Fogle is puzzled about victim notification in such cases. “How do you do that?”

People seeking expungement who have convictions in multiple jurisdictions will have to petition courts in all locations where judgment was entered, and those must be completed within one year of the first request for expungement, attorneys said.

Marion Superior Court administrator Andrea Newsom said expungement cases, which are civil in nature, will be assigned to the court that entered judgment on the highest-level offense. In cases of multiple offenses of the same severity, the petition will be assigned to the court with the most recent adjudication.

“The challenge for us is an anticipated increase in filings. We looked at this from an operational viewpoint” of how to best assign the petitions, she said.

Milliken has lots of questions about the new law, too. It’s unclear, for instance, whether people who have felony convictions expunged are no longer prohibited from possessing a firearm. “I think the way the law is written, there’s a strong chance (a person whose conviction is expunged) would be permitted to possess a firearm even under federal law.”

She also focuses on the statute’s wording requiring “successful completion” of a conviction and sentence in order to qualify for expungement. She wonders if that would bar someone who violated probation and therefore did not “successfully complete” a sentence. Fogle thinks it might.

“If you read the law verbatim, I think there’s a strong argument that, no, you can’t qualify because you did not ‘successfully complete’ the sentence,” he said. The same could apply for cases in which restitution was ordered but not successfully completed, no matter how long ago, Fogle suggested.

“These are going to be questions of first impression the courts are going to have to determine,” he said, “and I don’t have a clue what the answers will be.”•
 

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  • Restitution
    Restitution is another one of those scary areas. What happens if restitution was to be paid in 24 months and it took 30, 36, or 48 months? However, the code did read a victim can appear in person or write a letter to the court in support of the convicted (... or they can do the same in opposition of the convicted). The judge has to take the letter into consideration before the ruling on the petition.
  • Judge's Descretion
    "The petitioner shall provide evidence that the petitioner has successfully completed all terms of the sentence previously imposed, including:(A) payment of restitution, fines, and court costs; and (B) completion of any terms of probation, parole, or community corrections." Out of all the requirements this one scares me the most. If a judge does decide to make probation violations a reason to summarily deny the petition I can see lawyers having a uphill battle especially if the client wants to 'take a chance and go for it.' In the sake of fairness, I hope judges weight the severity of the violation and the convicted's post conviction time.
  • indigent "non granted?
    Usually when theirs multiple counties.you were charged in (trust me i do it in prejudice Illinois) -you petition each.jurisdiction respectfully.also,who gave the courts authority to block indigency(even if prooved in these tough times?")i like how the article.encourages people not to do it pro'se so that we.pay.a "shady"lawyer to f it up Digg its about time!!! What are people who were charged with crimes(that were dismissed)-yet the courts due to indiana triflingness!!not having case numbers for those offenses gonna do??mmm crts are a.fraud i smell rackeet
  • Another wrinkle
    What about convictions in multiple counties? If each person may file only one petition, where should the petition be filed?
  • Restitution
    For a felony, as part of the requirements for filing the petitions, restitution must be paid in full. Is there a time period for this, or so long as probation was successfully completed within 8 years, it wouldn't matter how long ago restitution was paid so long as it was paid?
    • Response, Use of Law
      It depends on why the charges were dropped. Unless it was due to (a) mistaken identity, (b) no chargeable offense committed or (c) lack of probable cause, relief in such a case will likely come by way of 35-38-9 (or, as you refer to it, "the new law").
    • Use of New or old law for Expungement or Seal
      I was arrested and charges where dropped back (No conviction)in Indiana around 1995. To say "I've never been arrested" on an Employers application what law would I use to petition for expungement or seal? The new law passed July, 2013 35-38-9 or old law 35-38-5?

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    1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

    2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

    3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

    4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

    5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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