Indiana’s public access counselor released an opinion last week agreeing with two Morgan County judges who have closed the entire expungement process to the public.
The expungement law went into effect July 1, 2013. It gives a person convicted of a low-level crime a way to clear his or her record and shield the crimes from the view of the public and possible employers. Those proceedings were open to the public until changes were made to the law during the 2014 legislative session, and now the law includes a line stating: “A petition for expungement and an order for expungement are confidential.”
Morgan Superior Court I Judge G. Thomas Gray interprets that to mean expungement hearings, and what happens during them, are closed to the public.
The Reporter-Times filed a complaint in July with Luke Britt, Indiana Public Access Counselor, challenging the interpretation by Gray and Morgan County Circuit Court Judge Matthew Hanson. The complaint challenged the judges’ decision to close the hearings, as well as their policy of omitting names on the court filings announcing expungement petition hearings — a practice that completely shields the public from the entire process.
Britt returned an opinion on Wednesday agreeing with the judges’ interpretation.
“A petition to expunge criminal records is a civil proceeding and not a criminal court filing,” Britt wrote in the opinion in reference to closing the hearings. “As such, it is not governed by the Open Door Law. … A civil proceeding may only be closed when the denial of access ‘is essential to preserve higher values and is narrowly tailored to that interest’ … .
“It is not the place of the public access counselor to weigh whether the courts are justified in making that subjective determination. Any challenge to the courts’ authority would be made through other legal channels. …”
Initially, Britt released an opinion that the petitions for expungement would be open until a judge granted them. However, after hearing the opinion on Monday, Gray objected and Britt issued a correction.
“A new statute effective July, 2014 … states that petitions and order for expungement are confidential,” Britt wrote in the correction.
‘That bothers me’
Prior to the law change, a reporter from the Reporter-Times covered hearings in which Morgan County Prosecutor Steve Sonnega challenged the expungement petitions.
One case involved a man charged with sexual battery who had a trial where 11 jurors voted to convict and one stood firm on her not-guilty vote. The victim, a child when the crime occurred, did not want to testify a second time. So the charge was reduced to battery and the man pleaded guilty. When he sought expungement earlier this year, Sonnega challenged the petition in court, where the victim testified that she still is haunted by what had happened.
“She testified, very powerfully, that she had to live with the consequences of his actions every day and that she believed he should, too — a logical argument from a crime victim,” Sonnega said.
But the law specifies that the judge granting expungements is not to give any weight to testimony from victims, which makes Sonnega fume.
“There’s not much leeway for a prosecutor or judge, and granting these becomes perfunctory, and that bothers me,” he said.
After the law was rewritten, a reporter and others were denied access to hearings.
The first denial of access was when Mack Porter’s expungement hearing came up in April. A reporter was denied access to Gray’s courtroom, as were others who wanted to find out what was happening. Porter was a professional accounts manager for organizations around the country, and had pleaded guilty to theft in 2007 for stealing $44,000 from the Professional Photographers of Indiana. He spent 12 days in jail and 168 days on house arrest.
During the closed-door hearing in Morgan Superior Court, his record was expunged. “Board members expressed the concerns of the organization, opposing this expunging process, but were told that it would proceed by virtue of Mr. Porter having a clean criminal record for the past five years, in spite of current concerns,” PPI President Eric Greulich said.
Judge Gray, a former prosecutor, not only dislikes the expungement process, he disagrees with the confidentiality part of the recently amended law.
“I don’t like the statute to begin with, but I will obey the law,” he said.
And Gray complained about the provision that says victims can address the court, but the judge cannot consider what they say if the expungement fits the statute. “It’s an oxymoron,” he said. “You can’t allow anyone in the courtroom to hear what they say, and it can’t be considered anyway.”
Original intent
Hoosier State Press Association Director Steve Key said he understands the judges’ interpretation and the access counselor’s opinion based on the language of the statute as it was signed into law. However, he doesn’t believe the Legislature’s intent was to completely close the process from the public’s view. Key, an advocate for Indiana newspapers and media, attends legislative hearings that have potential impact on the media and public access.
“I don’t believe the intent of the legislature was to close the expungement hearing,” Key said Friday during a phone interview. “I think they were trying to clarify that once the expungement was done, it was closed.
“I think the interpretation by the courts is going further than the intent of the legislature. But I’m not surprised at the interpretation that was made, just looking at the language.”
To this point, expungement proceedings and processes weren’t being handled the same in every county, Key said. However, judges in other counties are likely to look at this opinion and begin closing their processes.
“With this ruling, other judges might rely on this and say, ‘Our best bet is to be closing expungement hearings,’” Key said. “This is going to require either the Legislature to say, ‘No we didn’t intend that,’ or the (Indiana) Supreme Court will have to step in and say it wasn’t what is intended.
“Otherwise, we have an expungement process that is secret.”
A fresh start?
Rep. Jud McMillin, the Brookville Republican and former deputy prosecutor who was lead author on the bill, confirmed that closing the entire proceeding was not the original intent. He isn’t upset, however, that judges are taking things in that direction.
“From the perspective of the person who drafted the legislation, my goal was that once a court ordered expungement, it should be gone, not that the entire proceeding should be closed,” McMillin said Friday during a phone interview. “I’m not upset they are taking that position, though.”
The law gives people a chance to start over after turning their lives around, McMillin said.
“Making a mistake doesn’t mean that you’re necessarily a bad person. Making a mistake means you’re a human being,” McMillin was quoted as saying in April 2013 when the law was originally penned. “They shouldn’t have to live with it forever.
“A lot of times, the reason why people go into prison and come right out into a bad lifestyle is because they have no opportunity, they have no hope. They can’t look into the future and see where things are going to get better for them, because every job application they turn in gets thrown into the trash can.”
Even after the law was passed, McMillin said Friday, a flaw in the judicial filings didn’t allow for the complete expungement of a person’s record once it was granted. The new language was designed to fix that flaw.
Closing the process from the very beginning, as Morgan County has done, he said, is no different from the juvenile system and gives people who have turned their lives around a fresh start.
When asked about extreme cases, such as the person in Morgan County who was convicted of battery when his original charges were for sexual battery, McMillin said that is an unfortunate circumstance, but not a reflection on the merits of this law.
“I think that’s an incredibly and extremely unfortunate case,” McMillin said. “I don’t think that could be fixed in this law. That’s a terrible thing for her to go through again, and I feel sympathy for her family.”
Rather than a failure of this law, McMillin said it is a part of the way the justice system works and is one of downsides to the way it is set up.
“That person wasn’t convicted of the crime” of sexual battery, McMillin said. “We have a system that requires a unanimous decision.
“The problem isn’t that this allows rubber stamps of expungements of convictions. It’s that the appropriate conviction wasn’t reached. This goes to the heart of how firmly you believe in the system we have that holds people are innocent until proven guilty.
“The system that affords those rights leads to some bad results on occasion. It’s bad situation and I wish it hadn’t happened.
“This law wasn’t designed to allow that to happen and I wish that it didn’t, but so many factors attend each case, it would be impossible to draft a perfect law.
“This all gets to the right result most of the time. There’s always going to be circumstances when a law has unintended consequences.”