Courts, attorneys debate expunction

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Suppose you’ve just expunged a criminal conviction for a client, and he asks you, “Do I still have to admit I was convicted of a crime when I apply for a job?”

Your gut response may be, “Of course not. That was the whole point of getting the conviction expunged.”

Unfortunately, the answer is not that cut-and-dried, as can be seen from a dispute playing out between the Director of State Courts and two criminal defense attorneys in Kenosha.

The dispute began with a January 2010 brochure from the court system, which answered the question as follows:

“Yes. Although your record was expunged and your court record sealed, the judge’s order does NOT reverse or set aside your conviction.

“If you are asked if you have ever been convicted of a crime, such as on a job application, you must answer ‘Yes.’ But, if asked that question you can also explain that your record was expunged and explain the circumstances of your case and why it was expunged.”

That answer provoked an April 6 letter from Kenosha attorneys Michael D. Cicchini and Terry W. Rose disagreeing with the interpretation.

The attorneys noted “The most common, if not sole, benefit of expunction involves employment opportunities. In fact, judges have granted our clients expunctions because we proved that they had been denied jobs due to their convictions. If a citizen would still have to inform employers — and others, for that matter — that he has been convicted of a crime, even after expunction, then the process of expunction would be stripped of most, and probably all, of its value.”

The letter went on to note that, when a person testifies under oath as a witness, and his prior conviction has been expunged, he is allowed to testify that he has never been convicted of a crime. State v. Anderson, 160 Wis.2d 435 (Ct.App.1991). Or if he has two convictions, one expunged and one still of record, he is to respond that he has only one conviction.

The attorneys concluded, “If the correct and truthful answer to such a question when posed in court and under oath would be “No,” so too should it be “No” in other contexts, including when given in response to questions on a job application.”

On April 21, the court system responded with a defense of the brochure drafted by attorney Marcia Vandercook.

The defense notes that, in State v. Leitner, 2002 WI 77, 253 Wis.2d 449, the Supreme Court held that records of the district attorney and law enforcement need not be expunged. As a result, an employer who conducts a background check through the Crime Information Bureau would learn of the conviction.

“The advice in the brochure is intended to address the practical reality that many employers will conduct a criminal history check and will learn of the conviction and the expunction, and that some of those employers will conclude that a ‘no’ answer is untruthful,” Vandercook wrote. “Accordingly, we do not plan to revise the brochure at this time, but we appreciate you taking the time to inform us of your concerns.”

However, Rose and Cicchini responded to that defense on both legal and practical grounds.

Noting that the Leitner case did not supercede Anderson, the attorneys asserted, “if the position in your brochure were true, then numerous judges every day of the week throughout our state would be ordering witnesses to commit perjury. … [T]here is simply no distinction between ‘setting aside a conviction’ and ‘expunging a conviction.’”

Addressing the practical defense of the brochure — that employers will find out about convictions from the CIB, the attorneys countered, “We have been told by prosecutors that the CIB information is not, under any circumstance, available to employers. In fact, as defense attorneys representing individuals accused of crimes, prosecutors will not even release a client’s CIB to us, even though our clients have numerous statutory and constitutional rights to discovery materials.”

The Director of State Courts could not be reached for comment.

David Ziemer can be reached at [email protected].