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Legislature may make criminal records confidential of those never convicted

Lisa Demer

A controversial bill still alive in the last days of the Alaska legislative session would close off public access to thousands of criminal records in which the prosecutor dismissed charges or the defendant was found not guilty by a jury. Victim advocates are fighting it.

Sen. Fred Dyson, R-Eagle River, said he proposed Senate Bill 108 as one in a series of reforms to Alaska's criminal justice system. The measure is intended to help people accused yet never convicted of crimes find their way back to a normal life.

"Those people's records stay up on CourtView forever. There's huge damage to people who were never convicted or many of them not even tried," Dyson said in an interview.

Alaska's easy-to-use, on-line CourtView record system allows anyone with an Internet connection to check someone's statewide criminal history.

"CourtView is a huge reason why we are proposing this," said Chuck Kopp, Dyson's chief of staff and former Kenai police chief.

Dyson's bill making certain court records confidential is winning support from defense lawyers, defendants and public housing officials, who worry over landlords using CourtView to rule out prospective tenants based merely on an arrest.

It highlights a trend in which a number of states are considering limits to public access of certain court records, according to the National Center for State Courts, a nonprofit court improvement organization. The center warns that online criminal record searches may lead to mistakes and shouldn't substitute for criminal histories generated by law enforcement.

The legislation is raising serious concerns from the Alaska Press Club, which represents journalists, and the Alaska Office of Victims' Rights.

The measure easily cleared the state Senate March 28 on an 18-1 vote, with Sen. Hollis French, a former prosecutor, offering the sole dissent. Twelve senators signed on as co-sponsors. The bill now sits in the House Finance Committee, which has numerous bills to consider before the Legislature adjourns Sunday if not before.

VANISHING RECORDS

The proposal would end ready public access -- including victim access -- to thousands of misdemeanor cases and hundreds of felony cases dismissed each year, including drunken driving cases, rape cases and even murder cases.

It "will rewrite history," Taylor Winston, executive director of the Office of Victims' Rights, said in a letter of opposition sent to legislators. "It will forever remove the factual record of events for many criminal cases from public view. It would have the effect of saying to our citizens that they do not have a right to know what its government and its institutions are doing."

Charges are dismissed for many reasons, including missing witnesses and plea deals, but the measure would demoralize victims by insinuating that nothing bad happened to them, Winston, a former prosecutor of rape and domestic violence cases, said in an interview.

Dyson responded that victims get their day in court when the case is heard.

"I appreciate her passion, but she's way off base," the senator said in response to Winston's concerns. He said his bill is "virtually unrelated to victims. This is Fourth and Fifth amendment protections, right of privacy and due process."

The Alaska Press Club board just approved a resolution raising concerns about the bill, saying it "does not provide for an open legal system."

The measure "would remove our Constitutionally-protected public record of public proceedings, paid for with public money," the resolution says. The records "are of enduring public interest because we believe that cases are rarely black and white."

Dyson's office notes that anyone, including victims and news organizations, still could petition a judge for access to a confidential file. But that is a cumbersome process with an uncertain outcome compared to a few clicks on the computer.

LOST NORMAL LIFE

Cases would become confidential 120 days after a prosecutor dismissed the charges, a jury acquitted the defendant of all charges, or a jury acquitted a defendant of some charges and the prosecutor dismissed the rest.

The entire court record of a public trial would suddenly become confidential.

Cases in which some charges are dismissed and others stick would remain public. Consider Joshua Wade, who was found not guilty of killing Della Brown by an Anchorage jury in 2003 only to admit to the murder and a second killing years later. The trial record would remain open because the jury did convict him of an evidence tampering charge.

But the trial record of Mechele Linehan would become off limits to the public. A jury found her guilty of murdering her fiance, the Court of Appeals overturned the verdict, and prosecutors considered retrying her but ultimately dismissed the case, said Richard Svobodny, deputy attorney general over the criminal division.

James Mooney, 40, told legislators that the proposal would help him immensely. In 2012, he was tried and acquitted by a jury of sexual assault, almost three years after his fiancee made the accusation.

"Just being accused of this kind of crime, I lost my job as a manager. I tried to get another managing job but I was unable to because of what I was accused of," Mooney said, his voice cracking as he testified to the House Finance Committee Monday. He got odd jobs but can't find any work as of late.

"I thought I would get my life back. I was very wrong," Mooney told House members. "Like I said, everybody checks CourtView."

His defense lawyer, Marcelle McDannel, wrote an opinion piece published Monday in the Alaska Dispatch that called on the Legislature "to end its inadvertent experiment in public shaming." Jurors told her that they believed the fiancee lied about the sexual assault in order to get custody of the couple's child, she wrote.

Alaska Housing Finance Corp. was initially troubled by the measure, worried that it would interfere with its ability to screen potential tenants, said Catherine Stone, its director of public housing. But after a careful look, AHFC is backing it as way to help people who pass required criminal background checks only to struggle to find a home because of a past arrest, she said.

"It's a lifelong disability that is imposed on people," said Mary Geddes, a former federal public defender.

CASES IN THE THOUSANDS

In the 12 months that ended June 30, 2013, Alaska prosecutors dismissed more than 7,500 misdemeanor cases and about 950 felonies, said Nancy Meade, general counsel for the Alaska Court System. Another 39 felony cases and 57 misdemeanor cases ended with an acquittal after a trial.

Neither the Alaska Court System nor the state Department of Law, which includes state prosecutors, has taken a position on the bill.

The cases would vanish from CourtView. A new portal into the database likely would be created for those who get to retain access, including workers at the Office of Children's Services, public guardians and law enforcement, Meade said.

The Office of Victims' Rights would keep access, but the office only represents about 350 victims a year out of many hundreds, Winston said.

The courts are used to dealing with confidential files in children's and guardianship cases, Meade said. The paper record would be distinguished by a special fluorescent or otherwise marked folder so that a clerk doesn't accidentally hand it over the counter. Existing cases would be removed from CourtView retroactively, though the courts may not be able to make all the old paper files confidential, she said.

Svobodny, deputy attorney general, said he has advised legislators to take a balanced approach.

For instance, if a defendant has several separate cases pending at once and agrees to a plea deal in which some cases are dismissed, those cases would become confidential under the bill. Svobodny advocates they all remain public.

Also, as a prosecutor, he said he would want the record of a trial to remain available for public view.

The bill is not yet scheduled for action by the House Finance Committee.

Reach Lisa Demer at ldemer@adn.com or 257-4390.


By LISA DEMER
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