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House passes bills to clear criminal records

In this June 28, 2019, file photo, Tremayne Nez stands outside the Coconino County courthouse in Flagstaff. In June 2019, police wrongfully arrested him on suspicion of selling LSD after they mistook Nez, who is Navajo, for the actual suspect, also Native American. PHOTO BY FELICIA FONSECA/ASSOCIATED PRESS

In this June 28, 2019, file photo, Tremayne Nez stands outside the Coconino County courthouse in Flagstaff. In June 2019, police wrongfully arrested him on suspicion of selling LSD after they mistook Nez, who is Navajo, for the actual suspect, also Native American. PHOTO BY FELICIA FONSECA/ASSOCIATED PRESS

Tremayne Nez felt defenseless after Flagstaff police wrongfully arrested him in June 2019 on suspicion of selling LSD.

Police mistook Nez, then 20, for someone else, and the fallout from the arrest was immediate on him and his family.

His father, a pastor on the Navajo Nation, saw no one show up for his Sunday service following his son’s arrest.

“It’s always the pastor’s kid that’s the craziest, and there was nothing I could say to defend myself,” said Nez.

Nez and other wrongfully convicted people could soon find it easier to clear their records.

The Arizona Legislature is considering bills to help people like Nez and others who have had their charges dismissed or served their sentences to free themselves from the long-term effects of entering the criminal justice system – wrongfully or not.

The media, however, is resistant to one of the proposals, questioning the effect it would have on access to public records.

HB2491, which passed the House and has been assigned to the Senate Judiciary Committee, requires a law enforcement officer or party in a criminal case to notify a person who has been wrongfully arrested or charged with a crime of the right to file a petition in Superior Court. If the petition succeeds, that person is cleared and can deny the arrest or charge ever occurred.

HB2320, which also passed the House and awaits a hearing in Senate Judiciary Committee, allows the sealing of all case records related to the criminal offense of a person who was convicted and has completed the terms and conditions of their sentence, had charges dropped, didn’t receive a guilty verdict, or had no charges against them in the first place.

It also appropriates $500,000 from the General Fund to the Administrative Office of the Courts to pay for the costs of implementing this legislation, and the legislation would be implemented on January 1, 2023.

Daniel Arellano, representing Phoenix Newspapers and KPNX channel 12, testified at a House hearing that HB2320 raises concerns.

“We are deeply sympathetic to the goals of this legislation, its intent, we support redemption,” Arellano said.“We registered an opposition to the bill largely because its sealing provision restricts access to otherwise public court records and public documents to the press – therefore the public.”

His clients sent a letter raising constitutional First Amendment concerns, and worry that this bill couldn’t pass scrutiny.

Jon Gould, a foundation professor of criminology justice and law and director of the School of Criminology and Criminal Justice at ASU, said that the bills do not pose any immediate threat to public access.

“It strikes me that the legislation is trying to strike a balance between when the information is relevant, and when it’s not, so no, I don’t have a reason now to be worried about that balance,” said Gould, who is most known for his research and studies into wrongful convictions.

The sealed case records may still be used as an element of an offense and as a prior felony conviction or to enhance the sentence for a subsequent felony.

A person whose arrest, conviction and sentence records are sealed is then allowed to state that they have never been arrested for, charged with or convicted of said crime.

This includes responses to questions on employment, housing, financial aid or loan applications unless any specified conditions apply, such as a person who is sentenced as a dangerous offender or convicted of specified offense listed on the bill.

Wendy White, executive director at Southwest Center for Equal Justice and one of Nez’s lawyer, said HB2491 would add teeth to the current Arizona laws.

White. who is currently working on clearing Nez’s arrest record, said the bill helps hold agencies accountable through a civil cause of action if agencies do not follow the rules.

Nez spent 30 hours in jail and about two weeks later the charges were dropped.

“I was in the process of graduating, but I needed a internship to get squared away for that summer, but that all fell through because of the arrest, so my undergrad was put on hold,” Nez said.

He eventually got an internship at the office of former Flagstaff Mayor Coral Evans. Nez spearheaded an opioid prevention campaign in northern Arizona among faith-based communities hosting opioid prevention seminars.

He settled for $350,000 with the city of Flagstaff in January.

Gould says there’s no accurate way of knowing how common erroneous arrest occurs because data isn’t kept on whether an arrest was right or wrong.

“Erroneous arrests are an everyday reality in the criminal justice system,” said Gould.

He puts the number of erroneous convictions somewhere between 3%-to-5% of convictions based on past studies.

Gould said these kinds of bills are part of a growing trend.

“I think they are an admirable attempt to ensure that mistakes in the criminal justice system and other irrelevant information about an individual does not follow them going forward in a way that would harm them,” Gould said.

2 comments

  1. I am interested in re-printing the article, “House passes bill to clear criminal records,” written by Luis Zambrano and posted on March 12. This is Tom Arviso Jr., publisher of the Navajo Times. We would like to publish this article in our March 18 issue of Navajo Times. Please let me know if this is possible. Thank you!

  2. While wrongful arrests, if proven wrong, should be expunged from the records, convicted criminals’ records should be accessible for checks re. employment. Do we really want a criminal looking after vulnerable people , eg. elderly in care homes ?We have had recent examples of such who have raped /killed the elderly in their care. What next , a rapist teaching girls, or an ex killer in the White House ? Bad enough the quality of the present incumbent. At least he has not been convicted.

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