Tuesday, February 26, 2008

Words Matter

In a front-page story in Sunday's Oregonian reporter Susan Goldsmith tells the tale of "innocent" people wrongly charged with driving under the influence or reckless driving who then suffer because they can't have their police records erased.

There are some problems with her story but she’s absolutely right about one thing: Oregon’s system of sealing or not sealing records is a mess.

One of the problems with the story is Ms. Goldsmith’s choice of words. In the law, words matter. Even the smallest words generally have specific definitions. The choice of those words, those specifics, in fact are the basic elements of our written laws. So it’s important first to define and understand the words. I'll start with “expungement”.

Expungement is the complete and indelible destruction of a record so that there is nothing left to be found. All records are deleted or shredded; it is as if the incident never happened. Oregon law allows for expungement of virtually any juvenile record, under the theory that children deserve a clean slate when they become adults.

Adults are subject to different rules, and the rules for traffic violations are different from other crimes.

For crimes other than traffic violations, Oregon law allows for the records of any arrest that did not result in a conviction to be “sealed”, including arrests for rape and murder, after a motion is made to “set aside” the records of the arrest. Sealed records do not appear on any public record available to anyone except law enforcement. If an employer asks, “Have you ever been arrested?” you can legally answer “No.” If you find yourself on the witness stand in a courtroom and are asked the same question, again, you can legally answer “No.”

Oregon law also allows records of convictions for most crimes, including domestic violence, criminally negligent homicide, some burglaries and most drug possession, to be sealed after a motion to set aside made three years after the conviction, so long as the person has not been in additional trouble with the law during that three-year period.

These laws are both good and bad. On the good side, they allow people who were arrested for a crime they truly did not commit to have a clean record; and they allow people who have led a crime-free life for at least three years to go forth with a record clear of misdemeanor and less serious felony convictions.

On the bad side, the laws make no difference between the truly innocent and the truly guilty who the D.A. decided not to prosecute because of some glitch in the arrest process or some other inability to go forward in court. Often enough this is a man who has been arrested for beating up his wife or girlfriend, or sexually abusing her, but the woman is so afraid of him that she won’t testify against him, and without her testimony the man cannot be successfully prosecuted. Or it’s a burglar, embezzler, drug dealer or thug who manages to keep clean for three years in between crimes. Plenty of such people are in courtrooms across Oregon right now. They are legally claiming to the judge and the jury that they have no previous record but, even though they may be only 30 years old, are in court for their fourth separate embezzlement charge.

It could be worse. A man in central Oregon murdered a woman whom he had assaulted a few years previously. At that time he had been convicted of Felony Assault, but three years later his lawyer filed a motion to set aside the conviction. By the time the man murdered the woman, his previous record was sealed. If he had taken the witness stand at the murder trial he could have legally told the judge and the jury that he had never before been convicted of a crime.

Traffic violations, from parking tickets to arrests for driving under the influence, are subject to entirely different laws.

Oregon law doesn’t allow traffic violations or infractions to be set aside and sealed. The main reason is because of the societal interest in keeping track of people who are frequently arrested for -- and not so frequently convicted of -- driving under the influence. It’s a well-known fact that a person may drive under the influence many dozens of times before being stopped and arrested. And many of those who are arrested but not convicted are either veteran drunk drivers who refuse to provide any information to the arresting officer, or the beneficiaries of defense lawyers like Mr. Hingson, who charges over $10,000 to work his magic and persuade a judge to suppress a traffic stop, sparing his client from justice.

The secondary reason traffic violations cannot be sealed is the one stated by Ms. Goldsmith in her article: that traffic violations don’t merit the time it would take to erase all record of their happening. As a practical matter, most traffic violations automatically cycle off your DMV record after three years -- unless you are a very frequent customer.

In any case, arrests for driving under the influence and other traffic violations that do not result in conviction reside only in the Law Enforcement Data System (LEDS), a highly secure database accessible only to law enforcement personnel and only for official use. Official use doesn’t mean that I can use the LEDS to find out whether someone I don’t like has committed a crime. There are only two legitimate uses -- for employment in law enforcement and for record checks by criminal justice agencies of accused criminals -- and law enforcement risks its access to the system if LEDS is used for any other purpose.

In other words, even with all the computer databases currently available, a record for a DUII on the LEDS system is not at all incapable of being deleted or obliterated -- or "indelible," as Ms. Goldsmith writes.

The people in Mrs. Goldsmith's story may indeed be embarrassed or humiliated. But their beef about being “unduly burdened” should be with their employer, not with the legal system. They work or are seeking employment with agencies and businesses that are (perhaps in some cases overly) sensitive to the law, who require their employees to report any and every adverse contact with the law, and who have rules that include immediate dismissal for not reporting or for lying. It’s the prerogative of those businesses to know when an applicant or employee has been “busted”, to use a word in the Oregonian’s headline. ("Busts stick to innocent drivers.") Anyone who has applied for a job in law enforcement or for a position that requires a national security clearance will remember the intrusive questions asked and the requirements of personal behavior one is expected to follow throughout the term of employment. It’s a like-it-or-leave-it decision for the employee.

Meanwhile, it remains true that, as I wrote at the beginning, Oregon’s system of sealing or not sealing arrests is a mess. We need to fix the laws to protect victims not from an embarrassing few minutes at work, but from thugs and thieves who manage to keep their offenses in check just long enough to get their record clean before hurting someone else.

Thursday, February 14, 2008

Let's not squander our moral capital
Thursday, February 14, 2008
The Oregonian

The Bush administration has announced it will seek the death penalty against six of the men being held as detainees for their involvement in terrorism against America.
I have both prosecuted and defended capital cases for more than 15 years, and I am a vocal supporter of the death penalty in appropriate cases. If it is proved that these men masterminded the murder of more than 3,000 people, such a crime would indeed warrant the death penalty. But I'm absolutely opposed to seeking death against these men under the terms of the military tribunals the administration has put forth.
Defending the decision on PBS' "The News Hour," former Associate White House Counsel Brad Berenson explained that for most observers the trials would look almost exactly like one that would be held in one of the 37 states that have capital punishment.
"There's only a 10 percent difference," Berenson claimed.
But in making a decision to execute someone, 10 percent is an unacceptably massive difference.
Under the terms of the tribunals, trials would take place at Guantanamo Bay, Cuba, at a location called Camp Justice. Each case would be decided by a panel of military officers, one of whom will have legal training. The rest will essentially act as jurors. In no way can a panel of U.S. military officers be compared to a jury of the peers of these terrorists. The rules of evidence will be "relaxed," meaning that hearsay evidence will be admissible.
The argument is that national security could be compromised if the source of some of the evidence is revealed. But that's no different from being unable to produce an informant against a Mafia killer because the witness is afraid to testify. In our system of justice, the defendant who faces death gets to confront his accusers, and hearsay is allowed only in very few situations. One of them is not that the witness is a secret agent.
Many of us among the 70 percent of Americans who believe the death penalty is appropriate for the worst of the worst killers would agree that the crimes these men may have committed are indeed worthy of death. We who support the death penalty believe it to be an affirmation of the importance of life. But the devil is in the details -- and that's "due process" in our legal system.
We squander our moral capital if we take a shortcut through Camp Justice to avoid having to prove these cases to the necessary level, and with a quality of proof that would pass muster in a trial for stealing a car. The same rules of evidence apply to the shoplifter and the murderer.
Threatening or applying the death penalty in the manner under consideration by the Bush administration will undermine confidence in the American system of justice at home and abroad. The death penalty has proved to be a deterrent, but we must ensure that every defendant is factually guilty and warrants the ultimate punishment -- even for those who might prefer to be martyred.
It may well be that the government has a valid right to detain combatants in an undeclared war and deny them the same rights as citizens. But that's a far cry from executing them without due process. It may be just to imprison these terrorists for a very long period of time -- perhaps their entire lifetime -- but it would be wrong to execute them without affording them the very cumbersome but necessary rights that the American judicial system affords people it seeks to judge.
Joshua Marquis, district attorney of Clatsop County, is a co-author of "Debating the Death Penalty."
©2008 The Oregonian