When a criminal record is expunged the ghost may linger forever

If a criminal conviction has been expunged and for which there should be no criminal record, should it disappear from the rest of the world?

The tsunami of political awareness that is sweeping across the nation has scared plenty of politicians. And some who feel vulnerable are going nasty on their opponents. So what else is new? They've always been nasty.

This post isn't about politics but was inspired by a nasty political campaign in 2007 that resulted in a hearing before the Supreme Court of New Jersey last week. Via Law Blog.

Here are the facts. A political consultant discovered that G.D., a former aid to an opponent in a primary, had been convicted of some drug charge in 1993. But the conviction had been expunged although the consultant claimed not to know that.

So the Hudson County Democratic Organization caused a flier to be distributed. Law.com says this:

The first flyer ran, "It's the company you keep. And the sleazy crowd Brian Stack surrounds himself with says a lot about who Stack is. Coke dealers and ex-cons. [G.D.] is also a drug dealer who went to jail for five years for selling coke near a public school."

The second flyer said, "We all know the threat that drugs and illegal guns have in our communities. But not Brian Stack. He continues to surround himself with one shady character after another -- not one but two convicted drug dealers and ex-cons."

The flyers were sent out to about 8,000 households.

G.D. sued for libel due to his record being expunged in 2006 although the NJ Department of Corrections did not remove the information from its website until after the suit was filed. Truth is a defense to a libel suit. And the defendants' position was that they published the flyers without knowledge of the expungement, and besides, the conviction really did occur.

The defendants filed motions for summary judgment and to dismiss. The motions were denied. The defendants appealed and won. From the Appellate ruling:

Defendants contend that because the information contained in the flyers is true, it cannot support a defamation claim. Plaintiff, on the other hand, contends that defendants are not entitled to rely on the defense of truth in light of the fact that his conviction was expunged. For the following reasons, we agree with defendants in both respects.

So G.D. took it up a notch to the NJ Supreme Court. You can hear the oral arguments in G.D. v. Kenny, A-85-09,  here. (After 30 days it should be available here.)

If you've read this far, you've probably concluded that G.D.'s case is probably a goner and that the Supreme Court of NJ will side with the defendant. And that seems consistent with reality in this day of dwindling privacy and ubiquitous databases filled with private information. Someone's got a dossier on each of us. Expunging a criminal conviction may serve a purpose, and though privacy groups don't like it, nothing will make a conviction disappear.

Comments

[GHD Styler]

haha I liked that post! wonderful and nice