Friday, May 29, 2009

People v. McL***** (Cal. Ct. App. - May 29, 2009)

Here's a case that, in my view, is clearly and unambiguously correct. Both as to the law as well as to the equities.

Defendant -- I'll keep his name out, for reasons I'll explain later (though you can get it right from the caption) -- gets convicted of a drug offense back in the early 1990s and is sentenced to probation. While on probation, back in 1995, one of his drug tests comes back dirty. It happens. This is defendant's first criminal offense, it's his first dirty test, and he doesn't have another. He completes a drug treatment program and becomes clean and sober, and stays so for the next 14+ years. He's now married, has four children, is a professional architect, and is extremely active in his community. (The opinion doesn't say how, but I'll give you some snippets: He's president of his city's downtown business organization, he works a ton with children, and he's even a little league umpire; indeed, he's umpiring at the 2009 Jr. Softball Little League World Series.)

In short, he's now a regular, productive member of society; indeed, perhaps even substantially above average in that regard.

The problem, of course, is that he's got this almost two-decade old drug conviction. Which the Court of Appeal explains he wants to get expunged "so he can participate in professional organizations, serve in certain elected positions, and be approved as a registered permanent volunteer at a high school." And Section 1203.4 of the Penal Code allows precisely that, and authorizes expungement for any person sentenced to probation if "(a) he has fulfilled the conditions of his probation for the entire period; (b) he has been discharged before the termination of the period of probation; or (c) in any case in which a court, in its discretion and the interests of justice, determines he should be granted relief."

The one dirty drug test means that paragraphs (a) and (b) don't apply. But surely (c) does, right? If any case warrants expungement under (c), surely this is one of 'em, correct? Relief that's especially warranted once you realize that expungement under (a) and (b) is mandatory; in other words, that as long as you complete your probation, you get relief under Section 1203.4 even if you're a useless scumbag. Surely someone who's not should receive at least as much, no?

The trial court -- and the Attorney General's Office -- thinks not. They say that the only thing that matters to the "interests of justice" is your conduct during that brief period while you were on probation. So your decade of clean and good living is worth squat in deciding whether you deserve an expungement.

Poppycock. As Justice Willhite cogently explains. In an opinion that honestly made me think: What was the AG's Office doing even defending this one? (Maybe the personnell crisis is worse than I thought.)

The only other thing I'll add is that while I completely agree with Justice Willhite's decision to publish this opinion, I wonder if it might be appropriate -- in light of this publication -- to refer to the defendant by his initials. We live, after all, in the Age of Google. There seems potentially very little point in letting a person move to expunge his conviction when you're simultaneously publishing an opinion with his name on it that's going to far more readily accessible to the public than his actual conviction.

So if I were counsel for McL*****, I'd ask the Court of Appeal to edit the published opinion to refer to my client by his initials (or at least abbreviate his last name). And if I were the Court of Appeal, I'd both grant such a motion as well as make such an amendment sua sponte. Especially since the relevant name here is far from common.

Which, parenthetically, is why I don't include the name on this post either. Seems to me that McL***** deserves the expungement. No reason to keep him forever on google on my account.