Expunging Criminal records in Missouri

I get phone calls all the time from people trying to hire me to have their criminal records expunged. Until now, I have always had to give the sad news that–with the exception of some ten-year-old DWI convictions– “They don’t do that here in Missouri.”  With the signing of HB 1647  last Tuesday, Missouri’s criminal expungement laws have been expanded.

The new law–chiefly meant to restore the right to possess firearms–goes into effect on August 28, 2012 and allows for the expungement of some felony and misdemeanor criminal records. The felonies must be over twenty years old and misdemeanors ten years old with no other criminal offenses (excluding traffic) committed during those time periods. Here is a rough list of crimes which may be expunged:

Felonies and Misdemeanors:

  • Passing a bad check
  • Fraudulently stopping payment of an instrument
  • fraudulent use of a credit device or debit device 

 Misdemeanors only:

  • Negligent setting of a fire
  • Tampering in the second degree (joyriding among other things)
  • Property damage
  • Trespass
  • Gambling
  • Peace disturbance
  • Drunkeness/Drinking in schools, churches and courthouses


Getting convictions expunged requires the filing of a petition in the court in which the person was found guilty.  The petition must name as defendants every state agency that may possess the conviction records. On top of filing and service fees, the new law tacks on an extra $100 filing fee. There must be a court hearing and a finding that the petitioner meets every criteria, including full payment of any restitution ordered; and that the “circumstances and behavior of the petitioner warrant the expungement;” and that the expungement is “consistent with the public welfare.”

Although a person is not required to hire a lawyer to obtain an expungement, most people will want an attorney to file the lawsuit and conduct an evidenciary hearing. Despite the time and cost, many people may find a criminal expungement worth pursuing.

Could Red Light cameras be killing us — to make money?

Last month we read the headline:  Missouri Supreme Court Strikes down Red Light cameras.” Depending on the reporter, some media outlets got the story right and some did not.

In fact, red light cameras had little to do with the Supreme Court’s opinion at all. It was the City of Springfield’s enforcement scheme that was condemned by the court. The short version is that Springfield’s red light defendants could not get a real trial, nor a proper appeal. “Nice try, Springfield” the court seemed to say, “but you can’t do that.”  Other cities with red-light cameras–such as Columbia, Missouri–may well have judicial schemes that pass muster.

More interestingly, however, the court recounted the facts of the case. The defendant was Adolph Belt, a 30-year veteran of the Missouri State Highway Patrol. Experienced at traffic control, Belt investigated the traffic light cycle at the intersection where he was photographed running a red light. The yellow light lasted about 3.5 seconds (too short a time for most traffic light situations).

It turns out that the city of Springfield prepared for the installation of its red light camera system by slashing the yellow warning time by one second at 105 intersection signals across the city.  A 2005 Texas Transportation Institute study had shown that a “one-second reduction in yellow time resulted in a 100% increase in the number of violations.” See City Lowers Yellow Light Time Before Installing Cameras. Springfield has been noted as one of “6 Cities That Were Caught Shortening Yellow Light Times For Profit

It doesn’t take a genius to know that if shaving a second off the yellow light doubles the number of “violations” (meaning the number of red lights being run through), then that lost second is CAUSING accidents.

It is beyond argument that when a yellow light is shortened beyond a certain point, it can be impossible to stop safely before running the red light. Not only do cities know this when they shorten their yellow lights, THEY INTEND IT.

To consciously create such a risk is reckless conduct and if a person were killed in this “shortened yellow” scenario, the city and its leaders would be guilty of Involuntary Manslaughter under section 565.024, RSMo.

Perhaps this situation will give a boost to Senator Jim Lembke’s MIssouri Senate Bill 637 which will forbid the use of red light cameras and thereby remove the incentive for this lethal government scam.


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New DWI laws could have “unintended consequences”

After the governor’s November DWI summit, we can expect new laws that promise to crack down on repeat DWI offenders. Oddly, the news reports seem to suggest a need–not for a crackdown on drunk drivers–but rather a crackdown on courts and prosecutors.

One of the biggest problems cited relates to the many arrested drivers who refuse to give a breath sample to determine their blood alcohol content. The law already requires a one year license revocation for such a refusal, but apparently prosecutors are being blamed for allowing DWI offenders to keep their licenses in exchange for guilty pleas on the underlying criminal offense.

Reports also cite prosecutors and judges giving probation to DWI offenders, thereby avoiding any conviction from appearing on a person’s record. This seemingly ignores recommendations of the federal goverment not to permit such practices.

Changes in the law may make it a crime to refuse to give a breath sample. Other changes could prevent prosecutors from plea deals which would keep a DWI from appearing in state and national databases. Another possible change is to make it a more serious crime to drive with a blood alcohol higher than .15% (the current level is .08%).

It turns out that some prosecutors are not enthusiastic about changing the law, citing unintended consequences of the new laws.

Prosecutors know that if their hands are tied by uncompromising rules, it will change the way they do business. This is because criminal cases do not always appear in black and white. Shades of grey are the norm.

When the prosecutors are prohibited from making reasonable compromises, fewer DWI charges will be filed. Either that or many cases will end up dismissed or lost at trial.

Look for a get-tough bill to be filed soon in the Missouri legislature.


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Video journalist jailed indefinitely for remaining silent

Jefferson City criminal defense lawyerAn interesting “criminal” case is brewing in a small New Hampshire town. The city of Keene, NH has a substantial number of libertarian activists who have cultivated the habit of carrying video cameras around whenever they have protests or other events involving the government (which they would like to see strictly limited or–depending on who you ask–eliminated altogether). One of those video activists will soon complete his first full month behind bars for not turning off his video camera after the local judge banned recording in the public lobby of the Municipal building.

Sam Dodson runs a YouTube channel for his videos called the Obscured Truth Network.  On April 13, 2009, he brought his camera to the public lobby of the city building in support of another activist who was being arraigned (also for the crime of videotaping in that same lobby).

The court’s marshall ordered him to stop–and when he refused–they arrested him for disorderly conduct. At this point he went passively limp and was then handcuffed and dragged to a waiting patrol car. [see video below]. Other friends of the man being arraigned that day were then ordered from the lobby–and when they refused–five more were arrested for disorderly conduct.

Police booked all the arrestees and released them later that day–all except Sam Dodson. Dodson refused to talk to the police and refused to identify himself. He has since been identified by police but the judge refuses to arraign him and has refused him a trial until he is willing to tell them his name. Dodson is on a hunger strike, only drinking liquids since he was jailed on April 13.

Writs of habeas corpus have been filed and rejected by the court.  The court explained that Dodson’s complaint was premature because he “may make the same challenges . . . as the criminal case proceeds.” But the case does not proceed.

It is quite possible that Dodson will eventually be found not guilty of the charges, but the state will not give him a trial until they have broken his will. He therefore remains in jail for the indefinite future.

More on the story here: Exercising Right to Remain Silent Lands Video Journalist in Jail Indefinitely and video here:

* * *

Now that Sam Dodson has spent far longer in jail than any convictions would actually have cost him, this looks more and more like the authorities are just flexing their muscles with this guy.

Absolutely nothing would stop them from bringing him into court, reading the charges, setting the case for trial and releasing him until the trial date. It would cost them nothing. Instead, they seem intent on making martyrs.


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BIG U.S. Supreme Court decision on Search & Seizure

Missouri Criminal Defense LawyerIn 1981 the U.S. Supreme Court decided, in the case of New York v. Belton, that if an occupant of a motor vehicle was arrested, the police could search the entire passenger compartment of the vehicle to look for weapons or evidence of a crime.

Under the fourth amendment such a search would normally be considered unreasonable and therefore unconstitutional, unless a search warrant was obtained. Even so, the Belton case has been the rule in Missouri ever since and gave the police an absolute right to search the entire passenger compartment of a vehicle once any occupant of that vehicle has been arrested.

Yesterday, the U.S. Supreme Court in Arizona v.  Gant overruled its 28 year old decision in Belton by holding that the police could not search inside a vehicle, once the arrested person was away from the car, unless they had reason to believe that evidence of the crime might be found in the vehicle.

This is a huge decision.  It is huge because a large proportion of drug arrests occur when the police arrest someone for an unrelated offense such as driving while revoked.  Once the person is handcuffed and placed in the patrol car, the police always return to the vehicle and search the passenger compartment thoroughly.

It will be interesting to see how both police and citizens react to this change in the current search and seizure law.

Citizens may be more likely to step out of their vehicle after being pulled over so as to ensure that they will not have their vehicle searched if they were arrested for some reason.

Search and seizureOne wonders if some police might be tempted to change their current practice of getting suspects out of a vehicle before arresting them. It’s hard to imagine a driver being arrested while still seated in his car and then being commanded to sit still while the officer searches the vehicle around him.  If that were permitted, we might see the police running public service announcements telling drivers to remain in their vehicles when stopped, lest they be attacked by police officers who–misunderstanding the person’s actions-believe they are in danger.

I doubt the courts will permit the police to search vehicles by forcing arrested persons to stay inside the vehicle after arrest. If that is the case, then getting out of your car at a traffic stop would be an unnecessary precaution. It might also serve as a signal to police that evidence of a crime may be in the vehicle.

Another thing we may see is an escalation of vehicles being towed by police after an arrest (for safety reasons, of course). Then the police would thoroughly search the vehicle under what is known as the “inventory” exception to the search warrant requirement.  Click here for “inventory search” explanation.  A driver fortunate enough to be pulled over near a legal parking space may want to take advantage of that opportunity and deny police an excuse to tow the car.

We will have to see how this all plays out.


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Grand jury is a double-edged sword

Jefferson City Criminal Defense LawyerHow does a person become charged with a crime? The first way is that the prosecuting attorney can file charges with the court. If the charge is a misdemeanor, the case is set for a trial. If a felony, there is an extra step: a preliminary hearing to make sure there is probable cause to believe the defendant committed a felony. The prosecutor must publicly put on evidence in front of the judge. The defendant is present, along with his attorney. If the prosecutor makes his case the accused is “bound over” to the circuit court where the case will be set for trial.

A second way to bring charges in the circuit court is through the grand jury. The grand jury is called to serve by the presiding circuit judge, typically at the request of the prosecuting attorney. The grand jury consists of 12 citizens selected by the court from a randomly chosen master jury list.

Once the grand jury is sworn in, they meet in secret and the prosecutor presents evidence to them in the cases he wants them to consider. There is no judge present. The accused has no right to attend, no right to question the evidence, or put on his side of the case. There is no record made in most cases. The prosecutor leaves the room while the jurors decide which “indictments” they will issue. Nine jurors must agree. The result is almost always whatever the prosecutor wants.

The fairness of this process is dependent on the judgment and integrity of the prosecutor. Most of the time the grand jury gives the prosecutor what he wants. If he has a reluctant witness, he just brings in a police officer to repeat what the victim told him. Hearsay is common in front of the grand jury.

Not only can a prosecutor get an indictment in a case that would never survive a preliminary hearing, he can easily avoid an indictment in a high-profile case by presenting his case in a way that insures that the grand jury will not indict. It’s great political cover because the grand jury gets the blame but is bound by secrecy rules that prevent anyone from knowing what really happened. The familiar criticism that a prosecutor could persuade a grand jury to “indict a ham sandwich” is only a mild exaggeration.

Unfortunately, we have real life examples: the tragic 2006 indictment of innocent Duke Lacrosse players in a case that promised national publicity to a prosecutor with too little courage and too much ambition. The recent indictment of Vice-President Dick Cheney and former attorney general Alberto Gonzales  last week in Texas (whatever we think of them otherwise) seems covered with the fingerprints of a publicity-seeking prosecutor. If the news accounts of erratic prosecutorial behavior are true, (read news stories here and here) perhaps this one will end quickly.

The fairness of the criminal justice system depends on the quality of the prosecutor: experience, mature judgment and a sense of fairness. Nowhere is this more true than in the use of the grand jury.

More posts on prosecutorial power:

Something from a former prosecutor to a new prosecutor
Criminal Cases: A roadmap of a typical case
Missouri Prosecutors join Obama “truth squad”

 

Missouri Public Defenders now refusing clients

A number of Missouri Public defender offices–including Jefferson City and Columbia–have began refusing to accept appointments to represent certain poor criminal defendants, because their caseloads are so heavy they cannot provide an effective defense.

This Columbia Missourian story noted that “The first types of clients to go unrepresented will likely be people accused of probation violations or those charged with certain collections and traffic crimes. Private attorneys who can take cases for free may take up some of the slack.”

So far, in Cole County, it seems the first defendants to lose public defender services are persons already convicted of a crime and now accused of probation violations.

The interesting thing is that dumping these probation cases–which often require as little as 5-10 minutes work on the part of a public defender–provides little relief to these overloaded lawyers. The thrust of this effort is therefore bureaucratic: it lowers the numbers of cases the public defender carries, but without actually providing much relief.

The bottom line is that the problem is not solved. First, there is the constitutional requirement to provide representation to persons too poor to hire a criminal lawyer. Under Missouri law, public defenders must provide legal services to poor persons who are detained or charged with a:

  1. Felony, including appeals;
  2. Misdemeanor which will probably result in jail time, including appeals;
  3. Violation of probation or parole; [There are a few exceptions, but that’s basically it]

The legislature could solve the problem in a couple ways. First, they might add some money so the public defender can add attorneys where the caseload demands. A better solution–probably impossible in this age of criminalizing every wrong and increasing punishments–would be to CUT the punishments for certain crimes.

A first offense driving while revoked has mandatory jail time. This means the public defender is flooded with these cases. They could remove the mandatory jail time. They could cut first offense DWI’s to a fine only–nobody goes to jail on the first offense anyway. Many, many misdemeanor punishments could be cut to a fine only, especially for first offenses. Let me suggest a few:

  • littering
  • gambling
  • careless and imprudent driving
  • turn signal violations
  • peace disturbance
  • speeding (or driving too slowly)
  • sale of a motor vehicle on a Sunday
  • failure to return a rented video
  • cockfighting
  • bear wrestling
  • possession of an unregistered monkey
  • impersonating a hairdresser
  • entering a prohibited cave
  • sticking out arms on a roller coaster
  • releasing a swine
  • picking flowers by the roadside, and

If you really want to cut the public defender caseload, a first offense possession of a small amount of marijuana could have a fine only (not necessarily a small one).

Another solution brought up is to have the judges order unpaid private attorneys to take up the slack. [I know, Lincoln freed the slaves, but unless you are being forced to pick cotton, our government has pretty much decided we must do what ever they tell us.]

So setting aside the slavery/involuntary servitude aspects of this solution, it’s hard to imagine most poor defendants coming out ahead on the deal.

The truth is that many Missouri lawyers never see the inside of the court room.  We are divided into specialties and only a small percentage can be said to be trial lawyers. Only a fraction of those are skilled in the practice of criminal law. To give a significant portion of the public defender caseload to the local bar would be a disservice to the client in many cases, unless only experienced criminal defense attorneys are appointed, which also raises obvious fairness issues.

In the end, I am betting my money (and it is MY money) on the legislature doing the easy thing and sending more money over to the public defender office. [Sigh.]

OK. Slowly. Step AWAY from the taco.

A friend  sent me this great example of the 4th amendment in action. The article, titled: “Yo quiero a search warrant: Lawyer succeeds in suppressing evidence found in taco” was originally published in the Missouri Lawyers Weekly.

It seems that Branson police were investigating a fight and were told that someone involved in the fight had gone to the Taco Bell. Police decided it was time to make a run for the border. When they arrived, they found  Johnnie Hoover and a female companion were the only customers.  

The officer asked Hoover if he had any drugs or weapons. At this point–the officer testified–Hoover “looked furtively at a taco lying on the table in front of him”.

Thinking outside the bun, the officer immediately asked Hoover to move away from the table.  He then searched the taco, finding methamphetamine and a glass pipe pipe within.

Mr. Hoover’s lawyer explained that he was able to have the evidence thrown out on the grounds that the taco seemed unlikely to contain a deadly weapon. Nor did the officer have probable cause to search the taco on other grounds.  [See Search warrants in MIssouri, Parts 1-4]

It sounds like the judge was dead on with that decision, the key being that a “furtive look” by itself is not going to be enough for the police to get into your taco. On the other hand, if the officer had sufficient grounds for a search of the taco, he most likely would not have needed a search warrant because the taco–being so “good to go”–might otherwise disappear in the meanwhile.


Federal judge nips jury nullification in the bud

The jury had begun deliberations in a federal criminal drug trial when the judge was sent this note:

One juror is asking: Where – if two-thirds of both houses of congress voted in 1919 that it was necessary to amend the constitution to give congress the power to ban mere possession of a substance (prohibition of alcohol in that case) – is the constitutional grant of authority to ban mere possession of cocaine today?”

The judge decided that he (and the US Attorney) had a problem. After some inquiries back and forth with the jury, the judge brought the jurors before him and interrogated them. He quickly identified the juror who had questioned the law.

He informed the attorneys that this juror “engaged in juror nullification and [the Court believed] it was within [its] power to dismiss him.” The judge kicked the juror off the jury and replaced him with an alternate juror. The defense objected. The reformed jury came back with the guilty verdict.

The judge handed down a 40 page memo explaining his order. (read it here)

Among other things, the judge seemed to connect such juror conduct with gradual elimination of the jury trial.

He lamented: “Without juries, judges become glorified hearing officers whose contributions to society could not possibly justify grand courthouses, courtrooms, or judicial staff.”

I look forward to reading the appellate decision on “jury nullification” that will follow this decision.

Here are some prior posts on jury nullification:

Here a comment on this case from www.cato-at-liberty.org:
Juror Becomes Fly in the Ointment

Plea bargains are often misunderstood

Jefferson City criminal defense lawyerSometimes we read opinions in the media or online–and knowing just what we have been told–we may tend to accept the viewpoints expressed. The great exception, however, is when we happen to have inside information on the story. Suddenly we understand how limited the public perception can be. We see how the criticism does not conform to the reality. Now, if WE see the defects when we DO know the score, shouldn’t that engender some skepticism (and humility) in those cases when we do not?

The news this week was that Eric Feltner (former chief of staff for Lt. Gov. Peter Kinder) pled guilty to the misdemeanor of “displaying sexually explicit materials.” He had originally been charged with two misdemeanor counts of attempting to provide pornography to a minor.

The court–following the plea agreement between the defendant and the prosecutor–sentenced Feltner to 60 days Jail, suspended the sentence and put him on 2 years probation on the condition that Feltner complete 100 hours community service, and that Feltner not use the internet except for business purposes. Feltner must now register as a sex offender in the county where he lives (for at least the next ten years).

Internet blogs and comments are steaming with uninformed rants, such as in this article from the political blog FiredupMissouri: Cole Co. Prosecutor Mark Richardson Continues to Coddle Republican Sex Offenders

FiredUp’s partisan attack on the prosecution declared the result “sickening,” demonstrating FiredUp’s superficial understanding of the criminal justice system. The blogger, who uses the moniker “Howard Beale,” complained that Richardson delayed a year before the filing of charges. Beale had earlier complained that felony charges–not misdemeanor–should have been filed. And he complained that the sentence was too lenient.  Such criticism, coming from an outsider, seems unfair.

A few points:

  • Taking a year to file the charge: If such a delay suggests anything, it’s that this case was not strong to begin with. It sounds like the prosecutor worked it for a year–and with the statute of limitations about to run out–he filed the best case he had. This is totally standard operating procedure.
  • Not filing felony charges: How anyone could level this charge without reading all the reports is, to me, a mystery. A complete total mystery.
  • The sentence was too lenient: Everybody’s an expert on this? Right? That depends on the evidence. This misdemeanor charge is not minor-related. The initial accusations were, but the law that Feltner admitted violating makes no reference to any victim (of any age). If the evidence was weak, the prosecutor may have believed this plea bargain was the best result he could get, considering the possibility of a not guilty verdict.

If he thought the accused was a future danger, he may have believed it more important to get this fellow into the record books. Two considerations may have been in play:

  1. Feltner must now register as a sex offender. His neighbors will be able to track him.
  2. Although this was a misdemeanor, any second offense will be a felonyClick here to read the statute.

The prosecutor (like his critics) may not have been satisfied with this result, but decided that half a loaf was better than none. I don’t know myself, but without more, I’d give him the benefit of the doubt.

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