Wednesday, February 17, 2010

Strangers in a Strange Land

A wise paralegal I worked with always reminded me how frightening it is for someone to be facing a criminal charge or accusation. She spent a lot of time talking with our clients, and they opened up to her in ways they didn't with the attorneys. Why? Because she was listening, and trying to see the whole process through their eyes.

An accused faces a criminal justice system they usually don't know or understand, full of actors who all know each other and know essentially how things "proceed." The accused is told where to be and when to be there, and who he/she can and cannot communicate with, and how far he/she can travel without asking the Court's permission. All while being told by judges, prosecutors, and the defense attorney about the possible incarceration that can flow from a conviction.

It's like having surgery performed on your life - except there is no anesthetic and you are wide awake.

I'm not sure an attorney can get all the way in the shoes of the client, the accused. But it is important to try and get close. To take the time to listen, and to give simple, straightforward answers. In the end it makes the attorney's job easier and allows the client and their family members to understand what is happening. You can't eliminate all the fear or uncertainty, but it helps a great deal to eliminate what you can.

My old paralegal preached and practiced that every day (and no doubt still does) and it made all the difference in the world.

Expungement - Legal Unicorn or Justice Found?

"Expungement" is the term most commonly associated with "cleaning up" a criminal history. However, in the State of Washington that term does not appear in any statute. Here, the term is "Deletion" and all of the rules about when you can get it are found in RCW 10.97

The very short answer is that the only way you can be eligible to have criminal history information "deleted" is if you are never convicted of a crime. The arrest records can be "deleted", but only if the case does not end in conviction. But many times short answers don't provide all of the answers. What about the court record? Is a court a "criminal justice agency" within the meaning of the statute? Is a court record "criminal history record information"? Therein lies the problem - the problem that leaves the Deletion statute sometimes looking more like a legal unicorn, and less like a means to deliver justice to the wrongly accused.

So let's say you are charged with a crime. You did not commit this crime. You are found not guilty by a jury, or the prosecutor dismisses the case because a lack of evidence - or an abundance of evidence that shows you did not commit a crime. Yes, you can destroy the arrest records but the court record? I believe the answer is "no." And the answer lies in the definition of "criminal history record information" found in the deletion statutory scheme at 10.97.040:

(1) "Criminal history record information" means information contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release.

The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual's record of involvement in the criminal justice system as an alleged or convicted offender, except:

(a) Posters, announcements, or lists for identifying or apprehending fugitives or wanted persons;

(b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis;

(c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings;

(d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days;

(e) Records of any traffic offenses as maintained by the department of licensing for the purpose of regulating the issuance, suspension, revocation, or renewal of drivers' or other operators' licenses and pursuant to RCW 46.52.130;

(f) Records of any aviation violations or offenses as maintained by the department of transportation for the purpose of regulating pilots or other aviation operators, and pursuant to RCW 47.68.330;

(g) Announcements of executive clemency.

The only thing you can "delete" from your record is "criminal history record information." RCW 10.97.060. So, even though the case is dismissed, the court record remains.

But can we find a glimmer of hope in the catch-all proivision at the end of RCW 10.97.060???

Friday, February 12, 2010

Perjury Indictment against cops in Miami

Do police officers ever lie during testimony? Federal prosecutors in Miami appear to think so

In this Miami case, an old law school friend from Northeastern, D'Arsey Houlihan and his investigator proved during a pretrial suppression hearing that the police officers were not testifying truthfully. His motion to suppress was granted and the charges dismissed. That is usually the end of the story and, frankly, prosecutors, judges, and some defense attorneys would yawn at the news that some officers lied during a suppression hearing. But in this instance federal prosecutors, pretty much the victims of the alleged crime (it was their case that got tossed after all) are doing the right thing...but also the thing that lets them send a message to local cops who testify in federal court: if you lie under oath that is perjury.

Federal prosecutors love perjury charges - just ask Barry Bonds. There is even something called a "perjury trap" that is a legal concept which grew out of the practice of federal criminal prosecutors calling witnesses to testify at grand jury proceedings with the aim of getting them to lie (the aforementioned Mr. Bonds is still stuck in the one that was laid for him).

Time will tell if the prosecutors follow through and get convictions or, as seems to happen more often with police officers charged with crimes, the charges don't stick.

Wednesday, February 10, 2010

Without a Net

Being a criminal defendant, defense attorney, police officer, prosecutor or even judge, ain't the easiest way to live. Each has its own stresses, moral challenges, and, occasionally, heroic triumphs. This blog is for self-promotion, that kind of goes without saying. But my hope is it can become a place where clients, potential clients, colleagues, and opponents can take a deep breath, maybe have a chuckle, and then get back on the path to whatever it was they came looking for in the first place.