Last weekend I posted on attorney Brandon Taliaferro's upcoming appearance before the South Dakota Supreme Court to ask that bogus criminal charges be expunged from his record. John Hult does good work this weekend explaining the many ways in which the state's petty refusal to expunge those charges acts as unjust punishment of an innocent man:
In an era of easy, online access to criminal records, past arrests and charges can haunt a person's housing, employment and education prospects for years, even when they don't lead to convictions.
"In a courtroom, everyone knows you're innocent until proven guilty, but the members of the public don't always differentiate between charges and convictions," said Tim Rensch, a Rapid City defense lawyer. "People draw conclusions just based on the existence of a charge."
Companies considering new hires will run a check of public records. If the potential employer sees an arrest record, he said, that's enough to take someone out of the running before they're ever able to say that a charge was dismissed [John Hult, "In South Dakota, Clearing Criminal Record No Easy Task," that Sioux Falls paper, 2014.09.20].
Leaving a false arrest on the record becomes an endless tax on the innocent citizen's ability to make a living, delaying and denying opportunities for no good reason. I note with dismay that Minnehaha County State's Attorney Aaron McGowan is willing to impose such extrajudicial pain:
"If I believe there's an arrest that should not have occurred, we'll agree to expungement," said Minnehaha County State's Attorney Aaron McGowan. "If I believe someone did it, but I can't prove it, I will resist" [Hult, 2014.09.20].
Suppose a friend or a neighbor does you wrong. You don't have the time or lawyer-money or court-actionable evidence to bring that person to court. But you take that wrong as reason not to trust or work with that person again. That's fine.
But as long as that person remains innocent in the eyes of the law, you should not get to sue the power of the state to impose any further burden on that person.
Related Goose and Gander Reading: If you review Taliaferro's brief to the court, you learn that prosecutor Michael Moore asked for and the court granted expungement of Wendy Mette's eleven felony charges of abuse or cruelty to a minor. The prosecutor had testimony from her foster children that she had known about the sexual abuse her husband Richard had committed against them. In his brief to the Supreme Court, Taliaferro notes that the state had stronger evidence against Wendy Mette and perhaps did not even have the technical statutory grounds on which to allow expungement of her record.
When Taliaferro requested expungement, the state submitted an affidavit from Mette as justification for rejecting Taliaferro's request. Judge Gene Paul Kean viewed Mette's affidavit dimly:
In her conclusion, Wendy writes: "Mr. Taliaferro altered our lives forever, and he has not even begun to show any type of understanding of what exactly happened, nor has he made any offer or attempt to take any responsibility for his direct part in it." The reaction this court has is: Really? Taliaferro altered her life forever? Has Wendy forgotten about Richard who is in prison for sexual assaults on the children? Richard, who Katrina indicated was continuously assaulting her and at one time indicated that Wendy saw the episode and did nothing which was reported to DSS? While Wendy disagrees with this report, it was the information that the Brown County States Attorney's Office had at hand when the cases were commenced. Obviously Wendy is highly selective in recalling the history of events. This court should and does give little weight to this affidavit which is self-serving and inconsistent with the facts from the various cases involving her, Richard and the children [Judge Gene Paul Kean, expungement ruling, quoted in appellant brief, Taliaferro v. South Dakota, 2014.06.02, p. 17].
Mette's expungement was filed August 22, 2012, the same day as the pre-trial hearing at which, according to Taliaferro's brief, DCI agent Mark Black said the state had no evidence that Taliaferro had committed the crimes with which he was charged. According to a footnote in Taliaferro's brief (p. 4), "After State dismissed Wendy's eleven felony child abuse charges, consented to expungement of her record and placed the child abuse victims back in her legal and physical custody, State called Wendy as a witness at the grand jury that indicted Taliaferro."
The state of South Dakota seemed motivated to free Wendy Mette of the burden of punishment for crimes that the State never proved in court that she committed. It is odd they do not feel the same motivation to provide Brandon Taliaferro the same justice.