I’m sitting in Department 103 of the Criminal Courts Building, where Judge Curtis B. Rappe is presiding. After several hearings ranging from robbery to murder, a different kind of case is called to order. There’s a noticeable change in the courtroom when the defendant rises from behind me and approaches the table with his counsel. Almost every other defendant this morning has been an inmate wearing county-issued “blues,” handcuffed and escorted from behind heavy iron gates just outside of the courtroom. (The loud locking and unlocking of the bars is chilling.) But those days are long gone for the man taking his seat at the defendant’s table. His name is Ezekiel U. (we have changed his name to protect his privacy) and he wears a suit and suspenders. He has been free from prison for 10 years, and today he is petitioning the court to expunge his conviction.
Upon release from prison, formerly incarcerated individuals are presented with a “fresh start” at life. But what is a fresh start? Though they are free to make their own choices for the remainder of their lives, former inmates bear a stigma reminding them and others of their past mistakes. A stain that can never be washed away. A box that must be checked on forms. The label “felon” can hinder an individual from employment opportunities, voting rights, education, traveling abroad, and a host of other public and social benefits that regular citizens take for granted.
The only legal process for an entirely fresh start is called expungement, and that is what Udeobong is seeking. Expungement, also called a “dismissal,” is a court-ordered process in which the legal record of an arrest or a criminal conviction is “sealed,” or erased in the eyes of the law. A clean slate. In California, a person has the opportunity to expunge or “dismiss” their record more than once if the conviction is eligible. The court always has the discretion to grant or deny dismissals.
Expunging a conviction can conceal the conviction from certain individuals and agencies. For example, some employers, landlords, and credit agencies will not see it when they run a background check. However, many times a court file still exists after an expungement. Anyone who knows how to look may be able to find it. Official California and FBI criminal history records will show the conviction and later dismissal.
Convictions for certain crimes can never be expunged. This includes most sexual offenses and other violent crimes. Dismissal petitioners cannot be on probation or any other type of supervision. They also cannot be serving a sentence for any other case. In California, exceptions are made if the crime has been reclassified as a misdemeanor under Prop. 47 or Prop. 64. Prop. 47 re-classifies “non-serious, nonviolent crimes” as misdemeanors instead of felonies. Prop. 64 legalizes the responsible use of marijuana by adults 21 and over. It also reduces the criminal penalties for most remaining marijuana offenses from felonies to misdemeanors.
Ezekiel, a bald African immigrant in his mid-60s, is seeking a straight-up expungement. In 2007, while serving as the Chief Financial Officer of New World Medical Group, Inc., he was convicted of grand theft and filing false tax returns as part of a MediCare fraud scheme. He served two years of a four-year sentence in state prison, was ordered to pay restitution of $4.3 million, and has been free since. Ezekiel is accompanied by his young defense attorney, Pavithra Menon, who speaks calmly and with thorough confidence. Addressing Rappe, she explains that she is “asking that the Court exercise its discretion and grant Ezekiel’s expungement in the interests of justice.”
Menon argues that Ezekiel has not had any interactions with law enforcement since his release a decade ago. She also stresses that Ezekiel is seeking expungement primarily because he cannot get gainful employment due to his criminal record. He has even passed an exam to become an auto dealer, but because of the nature of his offense, no dealership will hire him. Menon concludes by pointing out that not only will employment help Ezekiel provide for his family, but it will also help him make payments towards the $4.3 million restitution that he still owes. (As of the hearing date, Ezekiel has paid nothing towards his restitution.)
Deputy District Attorney Malcolm Venolia rises. “There are ways to make money out there that don’t require a clean record,” he protests. Middle-aged, with glasses and thinning hair, Venolia was the DA who originally won Ezekiel’s conviction in 2007. His principal argument is that Ezekiel has not made any effort at all to pay the restitution. He raises his voice as he asserts: “And having paid nothing, the idea that he wants to earn real money so that he can pay off restitution is pretty crazy.”
Venolia’s bluntness is jarring. He suspects that Ezekiel’s experience has not reformed him in any way, citing Ezekiel’s declaration as proof of this. “‘I have overlooked suspicious activities of my employers and ignored signs that the work I was ordered to do is fraudulent,’” Venolia narrates. “‘I have learned not to turn a blind eye to wrongdoing.’” Venolia suspects that Ezekiel’s statement amounts to blaming others for his conviction.
Menon disagrees. “That’s not him blaming others, that’s him blaming himself for this conduct, and he does take responsibility for it.”
Menon’s sincerity and calm forcefulness has Rappe on the fence — he thinks out loud. “I think what weighs in his favor is the time he’s been out without getting into anything else.” Although Rappe expresses his concern that Ezekiel has not taken full responsibility for his actions, the judge ultimately grants the motion.
And just like that, Ezekiel gets his fresh start. Menon gives a small smile while Venolia is visibly disgruntled by the decision. Throughout the entire proceeding Ezekiel has been silent and stoic in his mannerisms. He hasn’t reacted to anything during the hearing. Even when his expungement is granted, Ezekiel wears the same fixed expression. The face of a man facing a still-uncertain future.