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.

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