SJC Ruling: Judges Can’t Expunge Criminal Records

Apologies to my readers for the gap since my last post: I was away from my office on a much-deserved trip. Today’s post is about a recent Supreme Judicial Court ruling, which doesn’t bode positively for many criminal defendants who, for a variety of legal and situational reasons, never should have been charged with a crime in the first place. (Yes, this happens a lot more than many people might think.)

Consider the story of one “Tina Boe”, a pseudonym used by court officials to describe the case of the following woman. There are actually two levels of errors that produced a considerable injustice here, so let’s take them one at a time: 1) In a hit-and-run Massacusetts car accident, “Ms. Boe” was mistakenly indentified as the driver of the car who ran from the scene after this accident. In fact, although this car was registered to “Ms. Boe,” she was not driving the car when the accident occurred – it was driven by another man. Because the license plate of the fleeing car was written down by someone at the accident scene and given to the police, the police department involved filed what is known as an “Application for Criminal Complaint” against the registered owner of the vehicle – “Tina Boe” – seeking that she be charged criminally with Leaving the Scene of An Accident, a violation of Massachusetts General Laws Chapter 90, Sec 24. The penalties for this crime vary, depending on whether the Operator is charged with one or more of three forms of this offense: A) Leaving the Scene of Property Damage only (Penalty: Fine of $20 to $200; and/or a jail sentence of between 2 weeks and 2 years); B) Leaving the Scene of Personal Injury Not Resulting in Death (Penalty: Fine of $500 to $1,000, and/or a jail sentence of between 6 months and 2 years); or C) Leaving the Scene of Personal Injury Resulting in Death (Penalty: Fine of $1,000 to $5,000 and/or a state prison sentence of 2 ½ to 10 years or jail for 1 to 2 ½ years. Regardless, for this offense there is a minimum mandatory 1 year sentence.) Even for the least of these charges, this is still a serious offense.

When a police department or anyone else takes out a criminal complaint against someone (which often involve offenses such as assault and battery, motor vehicle offenses or sexual assaults,) the person against whom the allegations are made is sent a notice by the court clerk where the complaint was filed, to appear at what is called a “Clerk-Magistrate’s Hearing” (alternatively referred to legally as a “Show Cause Hearing”.) At this hearing the Clerk or Assistant Clerk of the court hears from the person or organization filing the complaint (here, police department involved,) as well as the respondent (the person against whom the complaint was brought,) together with any witnesses. At that conclusion of that hearing, the Clerk will either grant the petitioner’s complaint, and issue formal charges against the respondent, or will deny the complaint, at which point the matter is dismissed, no charges are filed, and no further action of any kind is taken against the respondent. The respondent will have no criminal record of any kind related to that matter, nor will a Probation Record be generated from the matter. If ever asked by a potential employer or any other organization, “Have you ever been charged with a crime?“, the respondent can always answer “No.”

However, if the Clerk allows the complaint, formal charges will then be issued against the respondent, who then instantly becomes a “defendant” in a criminal prosecution. A formal Massachusetts Criminal Offender Record Information (CORI) file is generated, reflecting that the person has been charged with a crime, an accompanying Massachusetts Board of Probation Record is generated, and the relevant District Attorney’s Office takes over to prosecute the case. How it ultimately turns out, always varies. But even if the defendant is ultimately found not guilty of the charge(s), that person will still always have a CORI, and a Board of Probation Record. Therefore, when an Application for Criminal Complaint has been taken out against someone, what happens at such a Clerk’s Hearing (“Show Cause Hearing”,) is extremely critical.

Which brings us to Mistake Number Two in this case: The day Ms. Boe went to court to appear at this Clerk’s Hearing, she was mistakenly directed to the wrong hearing room. Because the Clerk and the police prosecutor awaiting her determined that she “never showed up”, the Clerk allowed the complaint, and formal charges were issued against Ms Boe. At that point, all the negative consequences that I just outlined above (when a complaint is granted against someone,) became a reality for “Tina Boe” – a completely innocent person.

When criminal charges were formally brought against Ms. Boe, and Judge Kathleen Coffey of the Boston Municipal Court learned of these twin errors and the injustice that resulted, she granted a motion the defendant filed, called a Motion To Expunge the Record. As its name implies, this is a Motion to essentially erase the fact that criminal charges were ever even brought in the matter. Its specific purpose is to redress a glaring injustice done to a defendant, when it appears from all the evidence introduced, that the defendant never should have been charged by the Commonwealth in the first place. The judge’s order in this case directed the state Commissioner of Probation to expunge (essentially remove from all public records,) Boe’s CORI and Probation Record. This is fair and just relief, and indeed, Judge Koffey described it as such in her Order.

However, the state Commissioner of Probation didn’t wish to comply, and appealed the judge’s ruling to the Massachusetts Appeals Court, questioning the judge’s authority to issue such an Order. Soundly, the Appeals Court denied the Commissioner’s appeal. When the matter finally appeared settled at that point, the SJC got involved – and ruled that the judge lacked the legal authority to grant the Motion to expunge the record in this case.

In my legal opinion as a Boston criminal defense lawyer, this ruling lacks the fundamental fairness that should emanate from the state’s highest court. While the opinion may be technically accurate in terms of its analysis of the authority that a District Court judge has, it flies in the face of the spirit – and the practical meaning – of the word “justice”. While the court did rule that judges have the authority to seal criminal records – and that judge Koffey could order Tina Boe’s record in this matter sealed – that does little for this defendant as a practical matter. She still has a CORI; she still has Board of Probation record – and always will have both. If she is ever asked in the future by a potential employer, academic institution, or any other organization if she has ever been “charged” with a crime (even though she wasn’t convicted,) she must answer “Yes.” And within this entire matter, she was completely innocent – she wasn’t even present at the scene of the crime.

As I’ve noted before, my law school professors used to tell me, “Bad cases make good law”, meaning it’s the tough rulings that can often serve higher purposes later on. Perhaps, but tell that to whoever “Tina Boe” really is. I don’t think she’d agree. Aside from the wake-up call to reality that this ruling should bring to the SJC, what this case illustrates is the extreme importance that attaches to the outcomes of Clerk’s Hearings, or Show Cause Hearings. Because these hearings often do not involve a preceding arrest of the person against whom the complaint is brought, they are sometimes perceived by respondents as not being very serious, or requiring a lawyer’s expertise. Such a view couldn’t be more foolhardy. If you or someone you care about has received a notice to appear at such a hearing, whether the complainant is an individual person or a police department – always hire an experienced Massachusetts criminal defense attorney to appear and represent you at this hearing. If you don’t and the complaint is allowed, the consequences will follow you for many years to come.

The Law Office of William D. Kickham And Associates represents persons who have been accused or formally charged with a variety of criminal offenses. If you or someone you care about has received a Notice To Appear at a Show Cause Hearing (or Clerk’s Hearing,) contact us. We’ll provide you a free consultation, and provide you with valuable information that you will need to know.