Friday, February 26, 2010

Supreme Court to continue studying record retention and removal petition - STATE BAR OF WISCONSIN

By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

Feb. 26, 2010 – The Wisconsin Supreme Court will continue studying a proposal by the State Bar of Wisconsin to provide guidance to circuit court judges when ordering certain case files expunged, removed from an online database or otherwise sealed.

At an all-day public hearing on Feb. 24, almost two dozen individuals testified in favor of the proposal. After the hearing, a majority of the justices appeared willing to continue exploring ways to provide limited relief to individuals harmed by the online presence of cases that have either been dismissed or that ended in outright acquittal.

The vast majority of those who testified favored the proposal, describing how their personal lives or professional careers had been adversely affected by the online posting of court cases. In most of the situations described at the hearing, the cases had either been dismissed, overturned on appeal or had ended in outright acquittal after a jury trial.

“There are so many compelling stories here,” said Justice David Prosser during the court’s open administrative conference following the public hearing. “There are stories of people who are truly innocent. They didn’t do anything wrong. They have been totally victimized.”

“It seems to me that whatever problem we have has been incredibly exacerbated by CCAP and the Internet,” Justice Prosser added. “I don’t think you necessarily have to attack the entire problem if you can attack part of the problem.”

Stating he was not prepared to vote immediately on the petition but did not want the court to stop working on the issue, Justice Prosser said, “The case for redress is much too compelling to just let this die. It does need additional study.”

Justice Pat Roggensack suggested one option the court could consider is simply redacting the names of individuals in the online CCAP posting corresponding to dismissals and acquittals, without doing anything to foreclose public access to the original paper court file.

“That simple little fix, changing the name, does that have the same consequences as what was proposed here?” Justice Roggensack suggested. “People come in, nothing happens, the judge dismisses the charges, and often they are not represented. If the name simply were changed, for the CCAP problem where most of the people seemed to find their heartache, [it might] provide some relief.”

State Bar petition would clarify courts’ authority over their own records

The State Bar’s petition proposes three separate changes to current Supreme Court rules governing record retention.

The petition would provide that in any case that has been dismissed or in any case in which a person was acquitted, circuit court judges could order the record expunged if the court believes expunction is necessary and appropriate: (a) in the interest of justice, and (b) the court finds, either at the time of the dismissal of the case or within a reasonable period of time thereafter, that a party to the case would benefit and society would not be harmed by expunction.

It was this proposed change that appeared to garner a consensus among the justices that a problem existed and the court needed to do something to address it.

“Maybe it does leave some room for dealing with what we hear the most about today, what people are most aggrieved with -- dismissals and acquittals,” said Justice Annette Ziegler. “As a trial court judge, [in regard to] sealing the record and redaction, trial courts have fairly broad authority. So that’s somewhat appealing to me too.”

“Is there a way to deal with these more egregious situations yet keep public access and create an accurate record?” Justice Ziegler asked her colleagues. “I do think there are inherent powers in respect to sealing and redaction.”

Another change the petition proposes would adjust the mandatory retention time periods for certain cases to reflect their status at disposition rather than at filing.

Currently, SCR 72.01 sets forth a schedule of mandatory record retention periods, after which clerks of court may destroy court records and remove the information from the Wisconsin Circuit Court Access program and the Consolidated Court Automation Project (CCAP). Current retention periods vary from five years for ordinance and forfeiture cases to 20 years for misdemeanors and 50 years for most felonies. Under the current rule, retention periods are determined by a case’s status at the time of filing. The State Bar petition would provide that for felony, misdemeanor, forfeiture and ordinance cases, the retention period for a case would be determined by its status at final disposition.

As an example of how this proposed change would apply, a case with one count that was originally filed as a felony but was concluded as a misdemeanor would be retained for 20 years under the State Bar’s proposal rather than 50 years as under the current SCR 72.01. The State Bar’s proposal provides that for cases with multiple counts, the count with the longest retention period would govern the retention time for that entire case.

A third change proposed by the State Bar’s petition would permit any person to petition the circuit court for expunction of a record when the applicable retention time under SCR 72.01 has run but the clerk of court has not yet destroyed the record or removed it from CCAP.

It was this proposed change that seemed to encounter the most skepticism from the justices.

Currently, court records are destroyed and removed from CCAP according to the existing retention schedule under SCR 72.01. However, some justices expressed concern that the legislature may have preempted the field of expunction by enacting Wis. Stat. section 973.015, which provides a limited avenue for expunction to those under the age of 25 when convicted of misdemeanors and certain felonies.

“I’m very hesitant to use the term expunction when that term is used in 973.015 and has a particular definition and parameters that apply,” Justice Ziegler stated. “That seems to potentially conflict with the statute. That deals with a convicted person. I think 973.015 deals with those and we’re going to have a tougher time trying to tether that to retention of record time periods when the legislature has spoken on that score.”

Despite this reservation, most of the justices appeared to acknowledge that the court had the power to at least order limited changes to how CCAP is managed, particularly regarding the online posting of dismissed cases and acquittals.

“That doesn’t seem to be dealt with by 973.015,” Justice Ziegler said. “Maybe there is room for improvement. Maybe it could read ‘State v. Jane Doe or ‘State v. John Doe.’”

Justice Pat Crooks noted that dismissals and even acquittals are sometimes considered by judges when sentencing defendants on other cases.

“I don’t think we should destroy the record so that a judge couldn’t look at it, but I don’t see any reason why [dismissals and acquittals] should continue to be on CCAP and stigmatize and cause grave concern for people,” Justice Crooks said. “All I’m suggesting is, let’s go slowly.”

Justice Prosser agreed, saying “I do think we ought to have a very clear idea of how to implement this. Is there a court hearing? What exactly has to be shown at the hearing?”

“It may be that you could have something automatic in terms of a removal from CCAP after you had a dismissal of charges or an acquittal,” Justice Crooks said. “You could allow for a reasonable period of time, and automatically that matter would be removed from CCAP. Not from the court records, considering open government and open records.”

At the conclusion of the administrative conference on the petition, the justices decided to take the petition up again at a future meeting. The justices want to consult with the court’s technology staff regarding ways to take dismissals and acquittals off of the online CCAP database without disturbing the paper record on file with the court.

Madison attorney Erik Guenther and former State Bar president Gerry Mowris presented the petition to the court on behalf of the State bar. The State Bar’s Board of Governors unanimously approved filing the petition in June 2009, acting upon the recommendations of the State Bar’s Criminal Law Section and the Individual Rights and Responsibilities Section.

Under Wis. Stat. section 751.12 and Supreme Court Internal Operating Procedures II.B.5. and III, any person may file a petition to change Supreme Court rules, pleading, practice, procedural statutes and administrative matters

Supreme Court reviews expunction petition - WISCONSIN LAW JOURNAL

by Jack Zemlicka

A petition filed by the State Bar of Wisconsin and reviewed by the Supreme Court on Feb. 24 would amend state law to give people who are charged, but never convicted of a criminal offense the chance to have their records expunged by a trial court judge.

After nearly six hours of presentations, the justices briefly debated the petition in open conference and elected to defer a decision until a later date.

Under current law, only those convicted, after a specified period of time depending on the crime and their age, can seek a court order for expunction of a record.


Attorney Erik R. Guenther, who co-wrote the petition, agreed that in some cases, someone who has never been convicted “is in a worse position” than someone who has.

The current statute, SCR 72.06, provides that some lower level felonies and misdemeanor changes are eligible to be expunged if the convicted individual is under 25.

Guenther said the purpose of the proposed change is to provide some uniformity throughout the circuit courts and have the Supreme Court recognize its inherent authority to go beyond the statute.

“The petition is premised on the idea that the court has the inherent and equitable authority when the statutory remedy isn’t sufficient,” he said.

The full article is available here.

Wednesday, February 24, 2010

Justices hear arguments over Wis. court records - WISCONSIN STATE JOURNAL


Wisconsin's legal association told the state Supreme Court on Wednesday that judges need broader powers to expunge court records because the records are too easily accessible online and can be abused.

Currently, judges can expunge juvenile records and records of offenders under age 25 who committed misdemeanors or low-level felonies. The State Bar of Wisconsin has petitioned the Supreme Court to adopt rules that would permit judges to erase records in an acquittal, if a case is dismissed or if the minimum time for retaining the records has expired.

"To allow continued access to such easily misunderstood information ... poses the risk that such a record could be 'a vehicle for improper purposes,' whether intentional or not," the association's petition said.

Criminal defense attorney Erik Guenther, speaking on behalf of the bar association during a hearing before the court, argued that judges have the inherent power to control their own records, even if that means going beyond state statutes.

But justices seemed skeptical. Justice Annette Ziegler questioned whether the court could grant judges more powers than state law dictates.

"As a judge you have to follow what the law says, whether you like it or not," Ziegler said.

At issue is Wisconsin's online court database, which offers anyone with a computer and a mouse access to statewide criminal and civil records. The site generates as many as 5 million hits per day.

Each case carries a summary page that notes whether someone was found guilty or innocent. The page also warns that discriminating against a person because of his or her criminal record is illegal in most cases.

Still, pressure is mounting to curtail public access to the site. Rep. Marlin Schneider, D-Wisconsin Rapids, is pushing a bill that would restrict public access to cases with convictions. He says people are complaining that employers, landlords and romantic prospects found their names on the site and denied them a job, housing or a relationship, regardless of whether they were acquitted.

"There is no forgiveness or mercy anymore," Schneider said.

Richard Moeck, 62, told the justices that a state appeals court acquitted him of sexual assault and a host of other charges that stemmed from a 1997 case in La Crosse. He was released from prison in 2005, but the online database still lists his case.

His entry mentions the charges have been dropped, but he insisted the file has cost him relationships with two women and an acting job.

"It's ridiculous they're allowed to put anything on there," Moeck said.

Bill Lueders, president of the Wisconsin Freedom of Information Council, said expanding judges' powers to expunge the records would be "unnecessary and unwise."

He said that people's stories about being wronged by the availability of the records were just that _ stories _ that don't account for other factors, such as a lack of skills for a job. If people are so sure they were harmed they can sue, he added.

He said the database offers an important avenue to evaluate law enforcement and prosecutors' actions.

"The citizens of Wisconsin are entitled to know what their court system is doing," Lueders said.

Justice Patrick Crooks told his colleagues after the hearing that acquittals and dismissals should be removed from the online database.

"People acquitted or found not guilty are stigmatized," he said.

The justices decided to research whether they or the Legislature have the power to make changes and discuss what could be done with the database with their technology staff.

Gov. Jim Doyle has said he supports letting judges decide whether to expunge records.

Friday, February 12, 2010

DNA testing rules may change - WISCONSIN LAW JOURNAL

by Jack Zemlicka

When a person is convicted of a felony in Wisconsin, a DNA sample is taken and stored in a state database.

But legislators are proposing a change that would require police to collect DNA from every adult who is arrested for a felony and every juvenile who is taken into custody for sexual assault offenses that would be felonies if committed by an adult.

Senate Bill 336 received a public hearing in December. Its companion, Assembly Bill 336, is still waiting to be scheduled by the Assembly Committee on Criminal Justice.

Some criminal defense attorneys argue that the proposed change would violate the Fourth Amendment and could result in innocent people’s DNA being on file with the Department of Justice.

Hurley, Burish & Stanton, S.C. attorney Erik R. Guenther said that the current process of having a judge determine whether to grant an order for DNA is preferable.

“The legislature is looking at allowing highly intrusive searches without any judicial oversight,” he said.

Guenther is a board member of the State Bar of Wisconsin’s Individual Rights and Responsibilities Section, which is opposing the bills on the grounds that they violate the Fourth Amendment and are unconstitutional.

The basis of that opposition, said Guenther, is that DNA analysis provides much more information about a person than just fingerprints or a photograph.

Further, he argued, “for situations in which there was no finding of probable cause to continue with criminal prosecution, access to someone’s DNA sample would be of no benefit to anyone in the legal system.”

The full article is available here.

Wednesday, February 10, 2010

Wisc. high court asked to stop plan to make it easier to expunge criminal records - WISCONSIN PUBLIC RADIO

By Gil Halsted, Wisconsin Public Radio

MADISON (WPR) Critics of a plan to make it easier for people to have their criminal records expunged are calling on the Supreme Court to reject the proposed new rule.

The rules petition from the State Bar Association cites studies showing that many employers use criminal records to discriminate against potential employees even when public records show that charges were dropped.

Erik Guenther is a spokesman for the state bar who helped write the petition. He says individuals continue to be penalized by employers because employers don’t see beyond the charge, or don’t care.

Guenther says the new rule would make judges aware of the problem and encourage them to expunge records when a person is acquitted or charges are dropped.

Jerome Dillard of Madison Urban Ministry is an ex-offender himself and works with people who are trying to turn their lives around after serving time in prison. He says the change would be a step a right in the direction. Dillard says people are having a tough time because of the system. He says disorderly conduct is a common charge that may be dismissed, but it’s still on a person’s record.

But both the Attorney General’s office and Bill Lueders of the Wisconsin Freedom of Information Council oppose the change. Leuders says all court records should remain public, and laws on the books forbidding employers from discriminating should be more actively enforced. He says it’s the responsibility of his group to encourage responsible use of the information and “not use it in unfair or discriminatory ways."

The Wisconsin Supreme Court will hear arguments for and against the new expungement rule on February 24th.

Debate to erase court records reaches Supreme Court - WISCONSIN PUBLIC RADIO


Critics of a plan to make it easier for people to have their criminal records expunged are calling on the Supreme Court to reject the proposed new rule. Gil Halsted reports…

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Tuesday, February 02, 2010

Website that provides court records is under scrutiny - WISCONSIN STATE JOURNAL

- Ed Treleven

For the woman who was a victim of domestic abuse, it was a relief when a Columbia County prosecutor dismissed an unfounded domestic battery charge against her about five years ago.

But in the meantime, the woman said, she lost her job, then couldn't find another within her profession after background checks turned up the dismissed battery charge. And she believes men she dated would vanish after learning her full name and, presumably, checking her out on the Wisconsin Court System's popular Consolidated Court Automation Programs (CCAP) Web site.

"People make assumptions that if you're charged with something, then you must have done something," said the woman, who asked that her name not be used to protect her identity.

Cases like this one are the motivation for separate proposals now pending in the state Legislature and the state Supreme Court that would restrict access to online court records and make it easier for innocent people to expunge cases from those records.

Not everyone is convinced that the changes are necessary. Critics say that restricting access to court records would be harmful to the public's right to know what is going on in their courts.

"Both (measures) to some extent seek to do the same thing. They seek to deal with the perceived problem of people who misuse information by saying, ‘You can't have the information,'" said Bill Lueders, president of the Wisconsin Freedom of Information Counsel.

The changes are being reviewed this month.

A bill by state Rep. Marlin Schneider, D-Wisconsin Rapids, which would limit access to CCAP, is scheduled for a vote Wednesday by the Assembly's Committed on State Affairs and Homeland Security.

And the State Bar of Wisconsin has proposed changes to a state Supreme Court rule that would make it easier for people to have court records expunged. The bar's petition is scheduled for a hearing before the Supreme Court on Feb. 24.

A separate data base

The CCAP bill would remove records of pending cases from the Web site, along with those of people found not guilty. Those records would be kept in a separate database available only to court officials, government agencies, law enforcement, lawyers, licensed debt collectors and accredited journalists.

At a hearing last week, Schneider called CCAP a "court-created monster" that has ruined the lives of innocent people.

"For many, an accusation is the same as a conviction," Schneider said at the hearing.

But Peter Fox, president of the Wisconsin Newspaper Association, which opposes the bill, said the public has long had an intense interest in police and court information and CCAP is instrumental in providing it.

While Fox said if there's discrimination in jobs and housing that occurs because of what is found on CCAP, there are other ways to deal with that issue.

"Killing the messenger by restricting CCAP is not the way to do it," Fox said. "More information is better than less information."

Expunction of court records

The State Bar's proposal is designed to streamline the process to expunge cases, said Madison attorney Erik Guenther, who co-wrote the proposal.

He said the change would create uniform rules that all judges in Wisconsin could follow in deciding whether to expunge cases, a power he said judges already have under long-standing law. Those found innocent or whose criminal charges were dismissed can ask to have the case expunged from court records.

Expunction of court records for innocent people is in principle a good idea, Lueders said. But he is concerned about a portion of the bar's petition that would require the destruction of paper court records from an expunged case.

"No matter who asks that it be done, it's a terrible idea," Lueders said.

Removing all traces of a case, for example, "closes the door on prosecutions that never should have been brought," he said. "Courts have too much power over people's lives for someone to be able to put a match to paper that shows what the courts were doing."

A lawyer for the woman whose battery charge was dismissed was able to convince a judge to expunge the charge from court records. But it took several years, she said.

The woman has since married and is working again in her profession.

"I'm doing my best to put all of this behind me," she said.