Guilty After Proven Innocent

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Late one night, one of my sons was picked up by police in the parking lot at a Wal-Mart in downtown Atlanta. Video cameras showed he was with a group of young people who “forgot” to pay as they strolled out of the store with a cart full of camping equipment.

He was waiting at the car for his friends to finish shopping and claimed he had no idea they didn’t intend to pay for their goods. Police arrested the entire group, leaving it up to the courts to sort the innocent from the guilty. After a frantic middle of the night phone call where he INSISTED he was innocent of shoplifting, we bailed him out of jail with $1,500 in cash, and about a month later the case was heard by a judge and the charges against him were dismissed.

Despite the fact that he was never charged with a crime, his mug shot from the Fulton County Jail lives on forever and it’s the first thing that pops up when a potential employer does a Google search. Ouch! That’s when we discovered the convoluted and difficult process of getting a record expunged. Not everyone is eligible for expungement, but it’s worth the time and effort.  This kind of thing can haunt you the rest of your life as you apply for jobs, ask for financial aid or fill out a rental agreement.

Seems like double jeopardy for the person involved.

OK, so here’s the state’s attitude in these kinds of matters:  We’re going to arrest you for a crime we think you committed. When the judge finds out you really didn’t commit a crime, you’re let go without even an apology, despite the fact you were treated  like a criminal when they handcuffed you, transported you in the back of a cop car to a jail where they strip-searched, finger-printed and then threw you in a jail cell with a couple hundred of Atlanta’s scariest individuals.

In a lot of cases people wanting to expunge their records have to hire an attorney to work through the legal system. A lot of people can’t afford this, so they turn to agencies such as the Georgia Justice Project that helped more than 600 people last year navigate the current clunky system to have their records expunged from the public records.

According to the Georgia Code, the person who’s the subject of the records must request the expungement. Since our son was arrested these are the steps he needs to follow to get his record back to the pristine condition it was in before this interlude with the criminal justice system:

In the case of a person arrested and not convicted, they may make a written request for expungement to the original agency having jurisdiction in the case. Upon receipt of the written request, the agency shall provide a copy of the request to the proper prosecuting attorney. The prosecuting attorney will then review the request to determine if it meets the criteria for expungement. If the request meets those criteria, the prosecuting attorney will then review the records of the arrest to determine if any of the material must be preserved in order to protect the constitutional rights of an accused. If the agency declines to expunge the arrest record, the individual may file an action in the superior court where the agency is located.

I don’t know about you but I think the whole entire process would work so very much better if they’d just automatically expunge the records of people whose cases are dismissed. Does this system seem fair to you?  Georgia state Rep. Jay Neal plans to introduce a bill in the 2012 state legislative session which would automatically restrict public access to records of any arrest or criminal charges that didn’t result in a conviction. It all makes total sense to me.

My boy is not the only one in Georgia this has happened to, and Georgia isn’t the only place where this kind of thing happens. It turns out, that in other parts of the country; you are guilty after proven innocent.

Here are some thoughts from a Kentucky attorney named Julie Kaelin who knows a thing of two about the issue, having worked in the Louisville public defender’s office for years:

“The only answer (in my humble opinion) is to have a way of truly segregating records in a manner that allows a person to move on with his or her life, but allows for access to and knowledge of the conviction by the defendant, the clerks, prosecutors, and judges. I have no easy answer to that, as it doesn’t make much sense to charge the person money who has had the case against them dropped… What does make sense is helping people get their foot in the door—not tripping them on their way in. Remember, I’m not talking about people who have long criminal records or even just two offenses in their past. This is for the mom who thought she could get to the bank in time to cover a check, or the kid who was in the back seat of a car he didn’t know was stolen. I don’t feel the need to ban them from productive society….”

She makes so much sense. Now if the Georgia Legislature can just show as much wisdom.


One thought on “Guilty After Proven Innocent

  1. Hey, Cherie – you’re right about this (and so it has always been – Charles Dickens used this plot scheme more than once, and the U. S. legal system is simply designed that way, as was the British one before it – common law, where stere decisis – precedent – is primary rather than the judge’s understanding, and trial systems are adversarial with one lawyer defending and the other prosecuting, and the judge basically refereeing. The other system, civil law, used through most of Europe and Latin America, depends more on the judge’s understanding and decision, and usually tends to create more follow-through, such as clearing records if the person is found innocent or reversing sentences if new evidence is presented. So – we should change it.

    One other comment – there’s another side to this (meaning another problem with the way this works), from the perspective of the citizen who is supposed to be protected by the law. Because this system is both difficult and random, the information that is available is unreliable and incomplete, and people with real records can easily come up with workarounds and stories to claim that they were cleared or misidentified but the records haven’t been corrected, or that their offense was minor and the DA went for an exaggerated charge. The most outstanding case of this is the sex offenders lists. The quality and verification/verifiability in most areas is awful, and in rural areas is downright random. This has both bad effects – people with trivial offenses like public urination wind up listed along with child rapists, and the information is often too poor to tell one from the other. People with no sex-crime background (such as the oft-told but not uncommon case of a seventeen-year-old guy with a fifteen-year-old girlfriend) get stigmatized and harassed, and real threats (say, a forty-year-old guy caught with a twelve-year-old girl, or someone who attacked a stranger sexually) are actually concealed by being mixed in with lesser offenders and harmless screwups. I think that because any such record is bound to have incomplete information or parts that can be misinterpreted, or to simply be badly written and unclear, these records shouldn’t be publicly available except as the specific charge the person was convicted of, IF they were convicted. Employers can pay agencies if they want to do background checks – the agencies are responsible to report fairly. The police departments can post any crap they want, and they usually make the night shift type it up, at least around here – it’s uselessly unclear.