Monday, August 03, 2009

DA Watch: El Paso District Attorney Investigates Potential Jurors Including Expunged Records

Over in El Paso, the district attorney's office is using its government databases to investigate ordinary citizens who show up for jury duty -- including going through past records that the citizens may believe to be secret or expunged.

And they're not telling the defense attorneys about this, at least they haven't been until they were caught doing this recently. Of course the defense bar is calling foul here.

What is an expunged record?

When someone pays to have their record "expunged," then they are taking action to have their record cleared of something -- an arrest, etc. -- and they believe that the expungement removes all trace of that particular event.

And it does. Public records do not provide any reference to something that has been expunged.

However, in the government databases, the expungement can remain these days -- all because of modern technology. The expungement is stored on the governmental records, archived in a database somewhere instead of the old school method of physically removing a file from the filing cabinet, stamping it "expunged," and either destroying it or sealing it in a box for storage offsite.

Where's the unfairness? First, it's unfair to the citizen whose record was expunged.

The first unfairness is to the citizen whose record has been expunged. An expunged record should mean that there has been a destruction of the event. For example, someone who is innocent was arrested for a crime. Three days later, the true evildoer was found.

It is blatantly unfair for that erroneous arrest to follow the innocent person into his or her future, tainting their personal and professional reputations. The mere reference to an arrest might cost them a job, for example. So, an expungement occurs.

The citizen believes that the horror of that event is gone and forgotten. But not with the El Paso District Attorney's office, apparently. They'll use the governmental databases and they'll look up that faulty arrest. All because the citizen has done his civic duty and shown up for jury duty.

That's not right. That's unfair.

It's also unfair to the valid and full defense of the current criminal defendant.

Remember now: the El Paso district attorney's office can access a national crime database -- just like any government prosecutor in this country -- and here, there's an unabridged listing of arrests and convictions that have been expunged from the public records.

Meanwhile, the defense attorney can only have access to the public records, not the SuperSecret national crime database.

So, the defense attorney is hampered in choosing a jury because the prosecutor is privy to information that the defense attorney is not. This is not the way that the jury selection process is supposed to occur.

What if the defendant going to trial is arguing that he was wrongfully arrested? We all know that the district attorney is going to strike the man or woman from the jury pool who they know from their SuperSecret database has an expunged record of a wrongful arrest. The prosecutor won't want that citizen on the jury, he (or she) may side with the defendant.

Which is exactly why the defense WILL argue for that citizen to be on the jury. And why this prosecutorial tactic is blatantly wrong.

Is this happening in places other than El Paso?

Sure it is. That governmental database is national in scope, and it would be absurd to think that only the El Paso district attorney's office is sniffing around its archieved expungements.