Of sealing, expunging, and shielding.

In addition to my own clients, frequently I receive calls from people asking for help to expunge their criminal records when I had never been in court with them in the first place. For my pre-existing clients, I gladly do the work where they are eligible for expungement. For the second group, I ordinarily decline, in part because I would need to charge (and often do not wish to do so) to overcome the case learning curve that the original trial lawyer has overcome, and because the work is too much of a thankless and sometimes tedious task -- especially if the expungement were denied --- unless I was involved earlier in obtaining the favorable result that led to eligibility for expungement in the first place.

Here is a brief rundown about expungement practice, procedure, and strategy in the state jurisdictions where I practice:

Where I practice -- absent any statutory benefits for youths -- expungement and sealing is not available without no prosecution action, a dismissal, an acquittal, or, in Maryland, a stet disposition or probation before judgment.

- Maryland's expungement application process is the simplest, generally requiring the completion of two triplicate one page forms and a $30.00 filing fee.

- In 2006, the District of Columbia loosened its sealing law, that previously generally prevented sealing absent proof by clear and convincing evidence of actual guilt. The D.C. Public Defender Service has a free information packet on the Criminal Record Sealing Act of 2006, with sample motions for those wishing to file pro se, by calling or visiting PDS. 

- Virginia's sealing procedure requires filing an entirely new lawsuit and filing fee for such relief. Earlier this month, the Virgnia Supreme Court confirmed that sealing is precluded after a dismissal following a judicial finding of guilt or facts sufficient to prove guilt.  Brown  v. Virginia, __ Va. _ (June 4, 2009).

- In federal court, any sealing eligibility is very limited.

Criminal defendants need to know that expunging and sealing does not prevent police, prosecutors, or judges from knowing about their criminal charges and dispositions. At least in Maryland, though, expunging can create a substantial hassle for such people to obtain their criminal charge and disposition history. Sealing does not eliminate any information harvested by private parties before the expungement/sealing date.

Among others, people who will be applying for immigration benefits from the United States or seeking a U.S. security clearance, should consult with a lawyer before getting their records sealed or expunged. If they do get their criminal case records sealed or expunged, they should in advance obtain multiple certified copies of their case disposition, and probably at least one or two certified copies of some or all of their court case file. The immigration authorities, and possibly the security clearance officials, likely will want to see documentary proof of the case disposition. Jon Katz.