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Court orders man’s records expunged

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The statute in effect when a man petitioned to have his Class D felony conviction records expunged said the trial court “shall order” the expungement if all statutory requirements have been met. As a result, the trial court erred in denying Michael Kevin Mallory’s petition based on testimony of his victims.

In 2000, Mallory pleaded guilty to two counts of Class D felony theft and successfully completed the obligations of his sentence in 2003. In November 2013, he sought to expunge his conviction records. He met all the statutory requirements in place at the time, so the trial court should have expunged his records based on the “shall order” language in I.C. 35-38-9-3.

But at the expungement hearing, his victims testified that they wanted the trial court to deny his petition. The judge found I.C. 35-38-9-3 to be in conflict with I.C. 35-38-9-9(d), which at the time, allowed a victim to submit an oral or written statement in support or in opposition of the petition at the time of the hearing. The statute also said, “The court shall consider the victim’s statement before making its determination,” language that has been removed by an amendment in the 2014 legislative session.

“It is well settled that the use of the word ‘shall’ is construed as ‘mandatory language creating a statutory right to a particular outcome after certain conditions are met,’” Judge Cale Bradford wrote in Michael Kevin Mallory v. State of Indiana, 20A03-1403-MI-76. “Therefore, we agree with Mallory that Indiana Code section 35-38-9-3(e) unambiguously requires expungement if all statutory requirements are met.”

The judges remanded with instructions to grant Mallory’s petition.
 
 

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  1. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

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