Criminal Expungement: Process, Benefits, and Support Services

Criminal Expungement Full Representation Training Elizabeth Fowlds Program Manager and Resource Attorney

Roadmap Why do you volunteer? Why do we need criminal expungements? What does an expungement do? How do you help someone do it?

VLN Client Services 1. Legal Advice Resource Attorney and volunteer attorneys Over the phone Not income based Looking for more volunteers! 2. Drafting petitions and fee waivers Second Chance Saturday Clinic Ramsey Law Library clinic Not income based, walk-ins only 3. Drafting, Filing, Serving Dorsey/US Bank Clinic Via Zoom 300% FPG and below 4. Full Representation 200% FPG and below

VLN Attorney Services 1. Training! Full Representation Last Friday every other month Next Training: August 30, 2024 at noon Criminal Records Last Friday every other month Next Training: September 27, 2024 at noon Have recordings for: Phone Advice Training 2. Support Answer all questions Review petitions Preparation for hearings

Why do this work? Get to appear in court

Why do we need criminal expungement? Societal exclusion due to criminal history Employment: Any record, even arrest, can impact hiring decision Housing: Scarcity of affordable housing means landlords can be picky about who to rent to Other areas of life: Coaching, volunteering at kids school, community service, visiting incarcerated family members or family members on military bases, etc. Systemic racism in the criminal justice system Keeps people in poverty Expungement is the means to help people overcome these barriers despite past mistakes or lifestyles

Expungement! What does it do? Can seal all records... (will not come up in background checks, licensing, etc.) ...Or it can seal only judicial records (basically, only the public can't see it) Sealing does not equal destroying! There are situations where an expunged case can be seen/used

Here are those situations... Expunged records can be viewed and shared among criminal justice agencies when investigating or prosecuting a crime Records can be used by law enforcement agencies against applicants for employment in the agencies

Types of Expungement 1. Arrest-only expungement* Only requires a letter sent to the BCA 2. Statutory Expungement Minn. Stat. 609A* Seals all records, case will no longer come up on background checks 3. Inherent authority*: usually not very helpful Judge uses power over court system to seal only court records Record is still on background checks, but client will have court order Crimes not enumerated in statute 4. Prosecutor-Agreed/Led Expungements (Help Seal My Record Programs) Prosecution Stipulates to the expungement 5. Automatic Expungements Under the Adult Cannabis Use Act Under the Clean Slate Act, 609A.015 *2, is the primary focus of VLN s Program, 1 and 3 are also done

Inherent Authority Expungement Bureau of Criminal Apprehension (BCA) Minnesota Court Information System (MCRO) Police Department City Attorney Sheriff s Department County Attorney State Attorney General Department of Corrections Department of Human Services Private data-miners Private theft databases Websites

Statutory Expungement Bureau of Criminal Apprehension (BCA) Minnesota Court Information System (MNCIS) Police Department City Attorney Sheriff s Department County Attorney State Attorney General Department of Corrections Department of Human Services Private data-miners Private theft databases Websites

General Expungement Process Gathering information and completing a petition Preparation It can take up to a year! Serving agencies whose records may be affected Filing with courts Service and Filing Short court hearing Hearing 63 Days (Minimum) Expungement Order Up to 90 Days Expungement 60 Day Appeal Period

Expungement Statutes 609A.01 - Definition 609A.02 Grounds for Expungement 609A.025 Prosecutor-agreed Expungement 609A.03 Petition contents, standards, etc. 609A.015 Automatic Expungements, effective 1/1/25 These do not seal all agency records 609A.017 Automatic Expungement for Mistaken ID Very specific criteria 609A.055 Automatic Expungement of Certain Cannabis Offenses 609A.06 Expungement and Re-sentencing of certain Felony Cannabis offenses

Inherent Authority No waiting period after someone gets off probation Once the case is closed, you can file a petition as soon as you want Quite difficult to expunge Courts generally want to see a long chunk of crime free time Not very helpful to a person

How do you help someone do it?

Full Representation Overview First: sign up as a volunteer with VLN! 10-15 hours estimated for 1 case, spread over 6-8 months About 5 additional hours per case you take on Paralegals or other admins can take this training. They are especially helpful during service and filing. Costs? Volunteers usually cover cost of obtaining records and service (printing and mailing) These clients are indigent any cost is a barrier to them If you are footing the bill, note this can add up to over $100 VLN can help! If you are not willing to do this, you'll need to discuss it with the client when signing the representation agreement. Filing fees: Client must pay if the fee waiver is denied

Full Representation Cont. Second: take a case! Let us know when you re ready to take on a case and we can give you some options Keep an eye out for our case paneling emails where we highlight clients needing a volunteer attorney to take on their case We will then email you: Client contact information Their criminal records What case records to expunge and what type of expungement it is It will be either statutory or inherent authority (same process) We will also send information on how to read criminal records Third: Meet the client Complete a representation agreement with the client and send it to VLN Interview client and begin the process (phone, zoom, in person) Gather information on why client is seeking expungement, and what steps they have taken to rehabilitate themselves

Full Representation cont. Fourth: work on filling out the petition This is the actual "motion" or "affidavit" We use a system called "hot docs" which generates all pleadings (including the petition) for you you just need to answer the questions/prompts. https://lawhelpinteractive.org/Interview/GenerateInterview/4681/engine The Current Version of hot docs uses old forms. We are in the process of updating this program. Each case being expunged gets its own set of pleadings Current forms can be accessed on the Minnesota Judicial Webpage: https://www.mncourts.gov/GetForms.aspx?c=14&f=207. Please give regular updates on the status of the case. Katherine Johnson will send out periodic emails requesting updates. The clipped sections of forms used in this PowerPoint are from the current forms on the Minnesota Judicial Website. If you re using hot docs, the numbers for questions may be different

Hardship and Rehabilitation Hardship: First part of the burden! Why do they need an expungement: must be more than reputation Be specific "denied jobs" vs. "denied three jobs including one at Target." Not a time to be proud! Rehabilitation: Second part of the burden! What have they done since the conviction to turn their lives around: more than what they did on probation Be specific and creative! "Addressed mental health" vs. "began therapy in x year and successfully graduated from a six-month program"

Question 6: This part 1 of the "burden of proof" Petitioner must demonstrate that the hardship they face due to their criminal record outweighs any risk to persons or the community (use first person!) You want to be specific in this question You want to try and provide the Court supporting documentation if possible Why do you want an expungement? In your words, describe how the records are causing you problems - employment, housing, volunteering, etc

Question 9: Hot Docs will generate the answer to this question for you, depending on the details you provide about the case in question 10! If you re using the forms from the Minnesota Judicial Website, the box checked in question 9 will tell you which proposed order form to use.

Question 7: Include all criminal charges, even dismissed cases Better to include and explain than to leave off Petty misdemeanors are not criminal records Convictions: MNCIS or BCA Dismissals: BCA The petitioner must disclose prior AND concurrent expungement requests

Questions 11 and 12: For 12: Check is if there is or was an order preventing the petitioner from contacting the victim (otherwise is not ) If is is checked, the petitioner must get a copy of the order from court and attach it Victims can be: People Groups Places Businesses IF THERE WAS NO CONVICTION THERE SHOULD BE NO VICTIM LISTED.

Victim and Protection Orders Victim name: Ask client Obtain complaint MCRO or Courthouse Orders for protection: Listed in MCRO history "FA DV" cases Part of conditions for the case being expunged Stay away order print out a copy of the sentencing order or register of actions for the case DANCO Courthouse (try MCRO)

Question 13: This is the second part of the 'burden of proof' How has the client rehabilitated and is s/he a threat to public safety or likely to reoffend? Description of the client s responsibility and role in the offense Demonstrated rehabilitation Crime free time, personal changes that cause them to be law-abiding (directly tie to underlying reasons for offense) Discussion of client s efforts to better him/herself or the community Show proof when possible! Clients with dismissed or acquitted cases do not need to fill out this answer! If they want to, DO NOT ACCEPT RESPONSIBILITY

Ideas for rehab: Substance use treatment AA Meetings, NA meetings Mental health program Weekly/monthly therapy Medication Church Volunteering Successful relationships Successful parenting Employment Worked things out with victim in case New outlets that keep them out of "trouble"

Final Questions:

Full Representation Cont. Fifth: Fee waiver, aka in forma pauperis ALWAYS fill out an IFP. Qualifications: Client's income under 125% FPG Client represented by a pro bono attorney based on indigency Court fees: about $325 per case- every county is different Hot docs will also generate this document you will just need to answer questions re: client's financial situation. The New Fee Waiver Forms available on the Minnesota Judicial Branch Website can be more simple than the document currently created on hotdocs. https://www.mncourts.gov/Get Forms.aspx?c=19

Full Represenation Cont. Sixth: Review and Finalize Pleadings! Generate the Word version of the petition(s) through HotDocs Or use the fillable smart forms or PDF forms from the Minnesota Judicial Branch Website Review for accuracy and edit Fill out the Proposed Order For Inherent Authority cases, add rehabilitation details.

Full Representation Cont. Seventh Step: Have the client review and sign the petition and fee waiver! Can digitally sign: /s/ client s name Do not need notary Make sure they fill out all information below signature line

Full Representation Cont. Eighth: Schedule a court hearing** Call the county court administration to schedule May want the filings before Olmstead: sometimes will do paper hearings if judge grants the motion (no one needs to appear) Confirm if the court hearing will be scheduled remotely or in- person If it is in-person and you want it to be remote, fill out a Remote Hearing Request form (ask us for it!) Schedule a hearing date at least 63 days out from service Build in more time for service and filing, so 70-75 is best Enter the date, time, and location in the Notice of Hearing section of the Petition

Ninth: Service of Process Proof of Service form generated by hot docs! Also Available on The Minnesota Judicial Branch Website Verify which agencies you need to serve Always serve boxes 1-8 Boxes 9-10: Department of Human Services/Minnesota Department of Health: Serve them when client wants to work with vulnerable populations (such as a nurse, PCA, in a treatment center). Verify the addresses on the proof of service Smaller cities will not be auto filled will have to google addresses

Service of Process Cont. Service: Mail the following to every address on the proof of service form you need: Petition and supporting documents Proposed Order If you want to submit a Remote Hearing Request form, you can serve that as well to notify the other parties of the request. Can also send your certificate of representation About 10-12 copies, separate envelopes, mail at same time Whoever serves the documents completes and signs the Proof of Service Do not serve this document!

Tenth: eFiling Full representation requires you must e-File the case Register Add fee waiver account Always click "file into existing case" Add you as a party Upload documents Use "fee waiver" for payment

Add Fee Waiver Select "waiver" in the drop down box

File into existingcase Select "file into case" in drop down Will need to add yourself as attorney

Uploading Documents "Filing Code" = just start typing what it is, options will pop up in drop down 1. Expungement petition = Request or motion for expungement 2. Expungement Order = Proposed Order or Document 3. Proof of Service = Proof of Service 4. Cert of Rep = Certificate of Representation 5. IFP = Affidavit for proceeding in forma pauperis 6. IFP order = Proposed Order or Document 7. Hearing type request = Request for remote or in-person hearing "Filing Description" = whatever you named the document "Client Reference Number" = case number "Comments to Court" = how you make something confidential! Petitions, orders, proof of service, cert of rep = public Court will not include attachments for petitions, don't worry Fee Waiver (IFP) and Fee Waiver orders = confidential

Final Step: Court Hearing To Schedule: call county courthouse and explain you want to schedule an expungement hearing FOR HENNEPIN: fourthcriminalexpungements@courts.state.mn.us Short hearing (~15 minutes) Objections: You may get an objection from an agency you served e-Filed prior to hearing You can e-File a response and/or respond at the hearing Hearing Prep with Client Discuss basic courtroom etiquette with client (even obvious stuff!) Prepare the client for questions based on the petition and objections You (and the client) can observe a hearing Prepare a brief argument focusing on the 12 factors in the statute Judge may ask you or client questions Address any arguments related to objection letters

Timelines Filing --> Hearing: 63 days at least Hearing --> Order: Up to 90 days Order --> Court actual sealing: 60 days 60-day appeal period, after which court will expunge record and send notice to all parties bound by order to expunge records Court sealing --> Background check companies sealing: 2-3 weeks Tell client to keep multiple copies of the order permanently in case companies don't expunge the case as they should CASE CLOSING FORM Please remember to fill out a case closing form https://vln.formstack.com/forms/closing

Opportunities and Resources We ALWAYS have a waitlist of clients for full representation Other volunteer opportunities: Phone advice and screening Help at clinics Have recordings of all trainings! (We re in the process of updating these) Access training materials and documents on our website: https://www.vlnmn.org/volunteer/criminal- expungement/training-materials

VLN Contacts Program Manager/ Resource Attorney: Elizabeth Fowlds Elizabeth.fowlds@vlnmn.org 612-752-6654 Case Placement Coordinator: Katherine Johnson Katherine.Johnson@vlnmn.org 612-752-6605