Expungement Law Doesn’t “Clear Records” for ALL Innocent

December 27, 2007

Gene Weatherby of Hugo, Oklahoma, was convicted in 1984 of stabbing Moctezuma more than 30 times. His conviction was based upon the testimony of Oklahoma City forensic chemist Joyce Gilchrest. Gilcrest’s testimony included findings that microscopic textile fibers found on a pair of tennis shoes from Weatherby’s home matched a rug in the home of Moctezuma. In 2001, the FBI concluded that the testimony of Joyce Gilchrest went “beyond the acceptable limits of forensic science.” In other words, Gilchrest made up her testimony to convict Weatherby.

Weatherby served a prison sentence and got out of prison in 1998. That was three years before Gilchrest’s testimony was found to be false. An eye witness also testified against Weatherby, but the eye witness had identified another man in a previous line up. And there were eye witness identifications in many of the DNA exonerations which have proved those convicted could not have committed the crimes which the eye witnesses swore did so. Anyway, Gene Weatherby sought a pardon from the Governor of Oklahoma, and he got it. Governor Brad Henry granted the pardon.

How does that matter? Weatherby recently tried to sign up his 9-year old for Boy Scouts, and Weatherby wanted to be involved with the Scouts. He was told background checks would be done on those involved in working with the boys. And Weatherby realized then a background check on him would show, even though he was pardoned, that he was a convicted felon. Weatherby and his son had to skip Boy Scouts.

The only way to clear his record of a felony is with an expungement. However, an expungement is available only in nine circumstances, according to statute:

1. The person has been acquitted.
2. The conviction was reversed with instructions to dismiss or the conviction was reversed and the district attorney then dismissed the case.
3. The factual innocence of the person was established by the use of DNA evidence subsequent to conviction.
4. The person was arrested and no charges of any type are filed or charges are dismissed within one year of the arrest or all charges are dismissed on the merits.
5. The statute of limitations on the offense has expired and no charges were filed.
6. The person was under eighteen years of age at the time of the offense and the person has received a full pardon for the offense.
7. The offense was a misdemeanor, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charges are pending against the person, and at least ten years have passed since the judgment was entered.
8. The offense was a nonviolent felony, the person has received a full pardon for the offense, the person has not been convicted of any other felony or misdemeanor, and at least ten years have passed since the conviction.
9. The person has been charged or arrested or is the subject of an arrest warrant for a crime that was committed by another person who was appropriated or used the person’s name or other identification without the person’s consent.

Gene Weatherby received a pardon. A pardon does not clear a criminal record. A pardon acknowledges that a person “has worked hard to become a productive, law abiding citizen after making mistakes in the past.”

But because Weatherby’s situation does not fit into one of the listed circumstances for an expungement, he is not eligible. Even the Daily Oklahoman wrote an editorial that state law should be changed to allow for expungement in a case like Weatherby’s. I wholeheartedly agree that such a change to the law should be made. While there is no way to return those years Weatherby spent in prison unjustly, at least he should given back a “clean” record without a felony following him wherever he goes.

Drug Charges Affected by the Color of Your Skin?

December 18, 2007

The Justice Policy Institute based in Washington, D.C. has studied the use of drugs and imprisonment for drug use in reference to the race and other factors. It found what it considered disparities in the imprisonment of African-Americans for drug sentencing.

For example, it found that black people are five times more likely to be sentenced to prison than white people in Tulsa County. In Oklahoma County, black people are four times more likely to be imprisoned for drug crimes. Even in San Francisco, California, black people are 28 times more likely to be imprisoned than white people.

In the year 2002, 19.5 million people in the United States admitted to using illegal drugs. In that year, 1.5 million people were arrested on drug charges, and, of those, 175,000 were sentenced to prison. More than half of that 175,000 number were black.

The bulging prisons in Oklahoma and other states are housing more and more drug offenders. Some are drug offenders only, with no violence or other criminal behavior. It costs the taxpayers of Oklahoma $20,000 each year to house each one of those prison inmates.

Of course, drug enforcement officials want tough sentences to helping win the drug war. Drug trafficking charges now carry a mandatory minimum sentence of 10 years. What is drug trafficking? Most people would guess that it is selling or buying of drugs. But that is not the case. A drug trafficking charge can actually be made when someone has possession of certain amounts of certain drugs.

For instance, being arrested with more than 5 grams of crack cocaine (worth about $500) is deemed trafficking in Oklahoma. Possession of more than ten grams of heroin (worth about $2,000) or more than 20 grams of methamphetamine (worth about $20,000) or more than 10 pounds of marijuana (worth between $10,000 and $15,000) is deemed trafficking of those drugs. There is no maximum for someone convicted of drug trafficking (first offense).

No politician in Oklahoma wants to appear soft on crime or certainly not soft on drugs. For that reason, the penalties only go up, up. The juries are instructed of the possible penalties, and some juries decide that will send the defendant away as long as they can. With the possible penalties they are given in Oklahoma, the juries are fully empowered to do so. It just depends on the jury.

So, are the drug laws discriminating against African Americans by the disparity in the rate of imprisonment? La-Wanda Johnson, spokeswoman for the Justice Policy Institute, says the disparity is more complicated than politics. She says more critical than race are poverty and unemployment rates, as well as availability of drug treatment and the size of the police department and policing strategies.

What is certain– is that drug charges bring very stiff penalties — and that anyone who finds himself accused of any drug charge must do everything in his power to learn how to get the best defense possible. That’s why I encourage anyone facing this difficult situation to visit my web site and order a complimentary “Protect Your Freedom” Kit to discover how to avoid common mistakes and other critical information. Just go to http://www.netlegalhelp.com/OrderProtectYourFreedomKit.html

Barry Bonds Indicted by Federal Court

December 7, 2007

Barry Bonds, the outfielder for the San Francisco Giants, the record holder for most career home runs in professional baseball, has been indicted for perjury and obstruction of justice.  Finally.

As everyone watched Bonds approach Hank Aaron’s record number of home runs, many said his record should have an asterisk next to it.  The record wasn’t broken fairly, they said.  But until now, Barry Bonds taking steroids or human-growth hormones was just a rumor.  Indeed, Bonds appeared before the United States Congress and testified he had never taken any such thing.  So, till now, Bonds supporters could rightly say: There is no proof of cheating.  Now Bonds supporters will have to wait for a federal jury to decide.

Bonds disdainful attitude made him a favorite for fans (and the media) to hate.  He acted special to everyone, his fellow players included.  Bonds dared any and all to take him on.  It is the federal government which has finally done so.  Fans questioned how the 36-year old Bonds went in the year 2001 from 49 home runs to 73 home runs the following year.  Bonds was an excellent batter before that, but the change was dramatic.

What business does the federal government have in this baseball business?  So what if professional athletes are cheating?  Whether the government has a legitimate involvement in this aspect of the “drug” business, Bonds is not accused by the federal grand jury of taking illegal drugs.  Bonds is accused of lying to Congress under oath: Perjury and Obstruction of Justice.

Once again, the cover up is what gets people in trouble.   The Watergate scandal brought the resignation of President Nixon, but Nixon was never accused or suspected of knowing about the original burglary of offices that started the whole thing.  Nixon was proven to have covered up the burglary.   He lied and deceived Congress and the American people about the burglary and his efforts to cover it up.  That was enough.

President Bill Clinton got into similar problems in the Monica Lewinsky scandal.  It wasn’t just the issue of his moral behavior but whether Clinton committed perjury or lied to the American in covering up the scandal.

So now Barry Bonds, who did not have to testify before Congress, chose to do so.  Why did Barry Bonds’ lawyer allow Bonds to do that?  To decline to testify may have looked bad to the public.  To take the Fifth Amendment makes a person “look guilty” to the public.  So fear of making a bad impression on the public drives people to abandon their Constitutional rights to stick their heads in the noose.

This is the same impulse that drives people every day in America to abandon their Constitutional rights whenever a police officer asks them to give up their rights to question them or search their vehicles.  Rather than say, “No. I would like to keep my Constitutional rights.  I would like a lawyer present with me before I make any statements and you need to get a search warrant to search my private property”, these people say, “Sure.  I hate to look guilty to you, officer, so you can have my Constitutional rights and I will start answering your questions and search my vehicle as much as you like.  Go ahead.  Question away.  Ransack away.  Don’t let my right to remain silent or my right to privacy under the United States Constitution interfere with anything you may have planned today.”

The framers of our United States Constitution gave us the right to remain silent under the Fifth Amendment and the right to privacy under the Fourth Amendment.  But if we give away those rights, then we have only ourselves to blame.  Regardless what impression it might make on observers, regardless that some may say “That makes you look guilty”, you must declare your rights to keep the benefit of them.  Unlike Barry Bonds, who was too sure he could out-fox the federal government, too sure he was smarter than everyone else.

Of course, Bonds may well ultimately be found not guilty by the jury in his trial, but he could have avoided even being charged if he had just chosen not to volunteer to testify before Congress.

Juvenile Prison Problems and Remedies

December 1, 2007

Juvenile offenders, when incarcerated, are kept separate from adult offenders for obvious reasons.  And the criminal justice process for juvenile offenders is also different than for adults.  The whole premise for the juvenile justice set of laws is that juveniles are presumed to be able to be rehabilitated before they turn adults, and keeping them apart from those adults accused of crimes is part of the separation.  Adults adjudged guilty of crimes are punished by simply locking them up in prison.  Adult misdemeanants are kept in county jails to serve their sentences.  Juvenile offenders are kept in juvenile facilities.

But the juvenile housing system is running out of room.  Gene Christian, director of the Oklahoma Office of Juvenile Affairs, says “we’re going to run up against a brick wall”.  The head of the Juvenile Justice Center, Associate District Judge Richard Kirby, recently moved about a dozen youthful offenders from the juvenile detention center to the Oklahoma County Jail, an adult facility.  When this action was appealed, an appeals court ordered the teens back to the juveniles detention center, the population exceeded its 80-person capacity.  That is the reason Judge Kirby ordered the youthful offenders out of the juvenile detention center.

The courts have required that the juvenile justice center maintain a ratio of one staff member per 10 teens during the day and one staff to 12 teens at night.  Because not enough of these staff positions have remained filled, even though there is money to pay for more staff, not enough people want the jobs.  The number of available beds for youthful offenders and juvenile delinquents has therefore had to be reduced.  The system is supposed to be able to give youthful offenders a mix of punishment and rehabilitation.  Both options are needed, Judge Kirby said.  But, without the facilities to keep them, the juvenile justice system has had to simply “warehouse them in prison”, one official said.

The entire juvenile justice system is designed to turn youth who break the law away from a life of crime before it is too late.  Isn’t that where we should put more of our public resources?  The expense of housing lifetime criminals in prison is much more money and lives wasted.

There are 1.5 million people in prison in the United States today with another 750,000 in the jails of the nation.  An increase of 192,000 prisoners is projected in the next five years nationally, and this will cost $27,500,000,000 to build and operate these additional prisons.  Why not take these billions and spend them on a better-funded system of juvenile justice to keep as many of these juveniles from costing the country so much in housing dollars, apart from all other considerations?