National News
Judge Expunges Criminal Record That Left Woman Jobless
June 10, 2015 posted by Steve Brownstein
A woman whose 13-year-old fraud conviction crippled her ability to hold a job ever since has persuaded a judge to expunge the felony.
Eastern District Judge John Gleeson said the public interest was far greater served by having Jane Doe be an "employed, contributing member of society" than having her conviction be part of the public record.
It has been almost 20 years since Doe played a minor role in a fraud scam to make ends meet and 13 years without re-offense since her probation sentence, Gleeson noted in Jane Doe v. United States of America, 14-mc-1412.
"Doe's criminal record has prevented her from working, paying taxes, and caring for her family, and it poses a constant threat to her ability to remain a law-abiding member of society. It has forced her to rely on public assistance when she has the desire and the ability to work. … There is no justification for continuing to impose this disability on her. I sentenced her to five years of probation supervision, not to a lifetime of unemployment," Gleeson said.
Doe was born in Haiti and came to New York in 1983 at age 24, looking for a better life. By 1997, she was raising four children by herself, making $783 a month.
The sum was less than rent in her Queens apartment building, which had drug dealers and addicts hanging around the lobby.
That year, Doe took part in an automobile insurance fraud scam involving corrupt doctors, health care professionals and minor staged collisions. The scheme was "ubiquitous" in the jurisdiction at the time, Gleeson said.
Doe was a passenger faking injury; she had no criminal history. A civil claim was filed on her behalf and she ended up with $2,500.
In 2001, Doe was convicted after a jury trial over which Gleeson presided. He sentenced her to five years probation, 10 months of home detention and $46,701 in restitution.
Doe filed her expungement request in 2014, and Gleeson reviewed the almost 1,000-page file documenting her years under supervision. It contained information such as an October 2006 report from Doe where she wrote, "When I'm looking for job the criminal background give me a problem. No job for me nowhere? Very sadness."
The judge said when Doe applied for work as a home health aide, she was not asked about criminal records at the hiring stage. Yet once hired, background checks turned up the conviction and Doe was fired.
This happened six times, Gleeson said.
The Eastern District U.S. Attorneys office opposed expungement, arguing that Doe's employment difficulties were not the sort of extreme circumstances that would merit that action. Moreover, they said it was appropriate for healthcare employers to know of Doe's healthcare fraud conviction.
Gleeson acknowledged expungement was usually meant for extreme circumstances, but he said this was such a case.
The distance in time from the offense and her lack of re-arrest weighed in favor of Doe, he said. Meanwhile, the conviction had a "dramatic adverse impact" on Doe's ability to work—outcomes compounded by the age and race of Doe, who is black.
Gleeson said the government was correct to note that courts traditionally refused expungement based just on adverse employment consequences. Still, the judge recognized the "growing recognition that the adverse employment consequences of old convictions are excessive and counter-productive."
He noted various efforts, such as a request by then-U.S. Attorney General Eric Holder Jr. in 2011 for states to review statutes and regulations on collateral consequences that do not increase public safety.
Gleeson also pointed to state-level initiatives, such as a proposal by Chief Judge Jonathan Lippman to allow sealing of criminal records for non-violent felons who avoid re-arrest for 10 years and have no prior felony convictions. The bill, A7030/S5169, is pending.
There was "obvious superficial appeal" to the prosecution's contention that a healthcare fraud conviction should not be expunged because Doe sought work in the healthcare field, Gleeson said.
If her crime was linked to her work as a home health aide, Gleeson said there could well have been a different result. "But facts matter, and the facts here are that a young woman raising four children by herself on wages that did not even cover the rent availed herself of an opportunity to make $2,500 illegally," he said. "That the scheme offered to her resulted in health care fraud was essentially fortuitous."
There was "no specter" that she used her training in furtherance of the crime or that she now was a "heightened risk" to prospective employers. There also was "something random and senseless" about the arguments that Doe's past conduct rendered her ineligible to work as a home health aide, he said.
Gleeson said a "patchwork quilt of collateral consequences ... produces results that are so anomalous they border on the farcical."
He noted that while a minor crime disqualified someone from being a barber in New York, the Internal Review Service last year re-certified a tax preparer who was convicted of preparing a fraudulent tax return for a major drug trafficker.
In that case, which is under seal, prosecutors asked Gleeson to let the preparer keep working without giving notice of the conviction to clients. As a result, he said, prosecution arguments here about the interest in health agencies knowing about Doe's past rang "somewhat hollow."
Assistant U.S. Attorney Bradley King appeared for the prosecution.
Nellin McIntosh, a spokeswoman for the Eastern District U.S. Attorney's Office, declined to comment.
Doe was represented by Bernard Udell, a Brooklyn solo practitioner who represented Doe in the underlying criminal case.
In an interview Tuesday, he said Gleeson "could have cut this off a long time ago" if he so wanted, noting, for example, that Doe did not argue she had been unfairly convicted.
"The intensive tracking of Miss Doe's history and employment frustration are beyond commendable. I am sure that the court's decision will benefit others similarly situated," Udell said in court papers.
He said Doe cried when she heard of the judge's decision to expunge, and that she was now actively presenting herself to care agencies. "I think she'll be working steady very soon."
