Client Acquitted by Jury but Still Branded by Criminal Records, Background Checks
In 2008 and 2009, The John T. Floyd Law Firm won three acquittals in the cases of Michael Serges, whose ordeal in the Harris County court system was the subject of a Houston Press feature story reporter Chris Vogel.
Serges had been wrongly charged with seven cases of various sex crimes against children, involving allegations made by five different children.
After facing three acquittals, not guilty verdicts, in the first two Serges trials, and with a newly elected District Attorney in town, prosecutors announced they would not proceed with the four remaining cases it had filed against him and dismissed those charges.
That prosecutorial decision proved to be a sticky-wicket for us. We wanted to seek an expunction of Serges’ arrest and trial records on the three acquitted cases and the arrest record on the four dismissed cases, but we quickly remembered that Texas’ expunction law created some sizeable obstacles for us. Let’s begin with the expunction statute itself. Article 55.01 of the Texas Code of Criminal Procedure requires that the following conditions be met before an expunction can occur:
“(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a
person is subsequently acquitted, whether by the trial court or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.”
Because Michael Serges was charged with sexual offenses involving five juvenile victims stemming from his employment as a juvenile detention guard, a reasonable argument could have been made all the charges arose out of the same criminal episode—even though he had been acquitted on three of them and not prosecuted on the other four—he was not automatically entitled to an expunction on either the acquittals or the dismissed cases. The Texas Penal Code Art. 3.01 defines a criminal episode as “the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or (2) the offenses are the repeated commission of the same or similar offenses.”
The Texas appeals courts have been strict in their interpretation of the same “criminal episode” element of Art. 55.01, the Seventh District Court of Appeals, for example, confronted a case three years ago where a defendant was charged with capital murder, murder, and burglary of a habitation. He was tried on the murder charge and acquitted. Prior to the acquittal, the State dismissed the capital murder and burglary charges. After the acquittal, the State re-indicted the defendant on the burglary charge, and after a double jeopardy claim failed, he was convicted on the burglary charge. The defendant moved to have the murder arrest and trial expunged from his record. Citing the same “criminal episode” element of Art. 55.01, the district court denied the expunction application. The appeals court agreed, saying the murder and burglary charge arose out of the criminal episode and, therefore, the defendant was not entitled to expunction.
By simply dismissing the four remaining charges against Serges, the District Attorney left open the possibility that it could re-indict and proceed in those cases at some point in the future because they were allegedly part of the same criminal episode inasmuch as each charge involved a sex offense purportedly committed against a juvenile inmate. What is so fundamentally flawed with this reasoning is that Serges was acquitted by juries on three of the so-called “same” charges. Those acquittals at a minimum should warrant the expunction of the arrest record in the dismissed cases. Even with a formal dismissal of those four cases and three acquittals, the spectra of guilt hangs ominously in a legal purgatory between guilt and innocence.
Finally, as a practical matter given the current state of the law, it made sense to keep the cases that resulted in “not guilty” verdicts on record to help explain the remaining dismissals. That, at least, allows Serges to show potential employers that he was wrongly accused and acquitted by two juries, strong indicators that the remaining cases lacked merit, which is why they were dismissed. Otherwise, surely, a prosecutor would not have dismissed such heinous allegations.
The Michael Serges case underscores the inherent problem in expunction law in that expunction is neither a constitutional or common-law right but rather a narrow statutory privilege—and Article 55.01 is not a liberal statute that offers sweeping relief to one seeking expunction of a criminal record. Proceedings under this article are civil rather than criminal in nature and courts on their own do not have independent equitable authority to expunge criminal records. They must strictly follow the proverbial “letter of the law” as mandated by Article 55.01—a statute that imposes an absolute burden on the individual applying for expunction to meet all the strict conditions of the statute to obtain relief.
Just last year Texas Gov. Rick Perry vetoed a bill (House Bill No. 3481) that would have made it significantly easier to get criminal arrest records expunged. Passed with near unanimous support by the Texas Legislature, the bill would have authorized the expunction of criminal records, including law enforcement files, 180 days after an arrest if no formal charges were filed against an individual. The governor’s veto was roundly criticized by many defense attorneys who viewed his actions as more evidence of his refusal to help the wrongfully accused in this state. One law firm, the Scheiner Law Group, said the reasons offered by the governor for the veto were tainted by a “hugely misguided logic.”
Gov. Perry’s veto message stated that the “expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely. Allowing a person to know the identities of witnesses or the nature of their evidence.”
The governor’s reasoning reflects either a serious ignorance or total disregard of the practical aspects of criminal law. Criminal defense attorneys already have avenues of discovery open to them after the arrest of a client. The expunction process does not even have any discovery mechanisms that would allow such abuses. We suspect the governor, the political creature that he is, caved into pressure from prosecutors who opposed the proposed amended expunction law.
Charged with the fundamental duty of upholding laws passed by the legislature, it seems odd that prosecutors and the governor would oppose a law the entire Texas Legislature deemed necessary to protect the rights of those wrongfully arrested for crimes for which they were not found guilty. It speaks volumes about the prosecutorial mindset that everyone accused of a crime is guilty and should be stigmatized for life by unfounded arrests or allegations.
Still, it is a horrific injustice for individuals like Michael Serges, accused of crimes they did not commit or found not guilty by a jury of their peers, to live the remainder of their lives under the inevitable suspicion of guilt associated with criminal charges any time a background check performed.
By: Houston Criminal Defense lawyer John Floyd and Paralegal Billy Sinclair