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‘What else can I do?’: Problems in expungement court slow attempts by some to get lives back on track after criminal cases
Monday, November 22, 2021 Chicago Tribune by Megan Crepeau
It was an unremarkable day in expungement court until a man with tears in his eyes spoke up.
“This is my fourth time trying to do this,” he said.
At a court date a month earlier, Cook County prosecutors withdrew their objections, paving the way for his record to be cleaned up. He had been told to come back Nov. 3 for his request to be officially granted, he said.
And so he did, logging on to Zoom court and waiting for his name to be called. It never was. His case wasn’t on that day’s schedule, and nobody could find his court file.
It must have fallen off the docket, a clerk told him, apologizing for the inconvenience. He would have to try again another time.
He is not alone. Expungement court at Chicago’s main criminal courthouse has struggled to bounce back after COVID-19 shutdowns, attorneys who work the cases told the Tribune, and for months some cases have been plagued with mystifying procedural and logistical problems.
The result: Some Chicagoans’ chance to clear their records in hopes of finding better jobs or housing has been delayed for months or years, in the middle of a pandemic that has made job hunts and housing searches more fraught than ever.
The Cook County Circuit Court clerk’s office, which is in charge of handling paperwork and scheduling at courthouses across the county, has been “working diligently” to prevent such logistical problems while dealing with a staffing shortage and the long-term effects of the pandemic, said Patrick Hanlon, executive clerk for public policy and external affairs.
Matt Fakhoury, a former Cook County expungement prosecutor whose law firm handles hundreds of expungement and sealing cases in Illinois, said they have seen “a breakdown in this process at almost every step,” and that dozens of their clients have lost out on job opportunities because of delays.
The Tribune observed a range of logistical issues at the Leighton Criminal Court Building’s expungement court in recent weeks. Most cases went smoothly. But others had problems that seemed to baffle everyone involved.
Among them: Petitions that were scheduled to be heard never made it to the bench; petitioners showed up only to be told that their cases had dropped off the docket entirely. Some did make the docket, but prosecutors said they were not made aware the case would be in court that day and could not preparefor the hearing.
In some cases, attorneys told the Tribune, petitioners have had their expungement or sealing requests granted, but they did not receive the judge’s order making it official for weeks or months. Somepetitions, correctly filed, somehow got lost in the ether, they said.
The office was severely understaffed when Clerk Iris Martinez took office in December of last year, Hanlon said in a statement to the Tribune. Just two clerks handle the expungement call at Leighton, but soon will be joined by four others who are currently in training, he noted.
All petitions are digitally scanned into the system and should be readily available for viewing, he said. Attorneys have been advised to wait for official confirmation that their case will be heard before showing up to Zoom court. And procedures have been put in place recently to make sure paperwork makes its way to the judge’s bench correctly, and cases do not “fall off” the schedule, Hanlon said.
“If anything like that has taken place (in recent weeks) it could be due to parties joining the Zoom call knowing they were not scheduled and are trying to expedite their case, or there is missed data entry,” he wrote.
Asked for comment, the Cook County Chief Judge’s office noted that a rotation of judges was brought in this year to speed up processing of expungement and sealing cases. The office declined to comment on the overall issue of logistical problems at expungement court.
Fakhoury’s firm estimates that about a quarter of the expungement or sealing-related cases they filed at Leighton since the beginning of the pandemic had some kind of procedural problem. And they are getting requests for help — or even referrals — from other attorneys who have given up on trying to navigate the system, Fakhoury said.
A stubborn barrier
Criminal cases have long afterlives, even when they end in acquittal or dismissal.
“Having a criminal record can create (myriad) different collateral consequences or barriers to people seeking employment, education, housing and, in some cases, some government benefits,” said Brandon Williams, the supervising attorney for Cabrini Green Legal Aid’s criminal records program. “So having your record expunged and sealed creates the opportunity for allowing barriers to be removed.”
Most kinds of cases can be either expunged, meaning the record is deleted, or sealed, meaning the record is visible to government agencies but not the general public.
On paper, the process is simple. Someone files a petition to have their cases expunged or sealed; prosecutors and law enforcement then have a chance to object. If an objection is lodged, a judge presides over a hearing to decide whether or not the record should be cleared. If the judge grants the petition, he or she sends an order to law enforcement agencies, which must seal or erase the records.
Many, if not most, petitioners in expungement court file on their own, without an attorney’s representation. Williams’ organization as well as another legal aid group, the Greater Chicago Legal Clinic, act as “friends of the court” to assist petitioners without attorneys.
Expungement court at Leighton was struggling with a backlog long before the pandemic, attorneys told the Tribune. Illinois legislators in 2017 greatly expanded the types of cases that were eligible for sealing, resulting in a flood of new petitions and new objections from prosecutors, Williams said.
A petitioner who filed in early 2019 was waiting six to eight months, or sometimes longer, for their case to be heard in court.
Around that time, county authorities met with legal aid clinics to try to figure out ways to improve the system. And it was starting to get better, said attorney Drew Curle, who runs the criminal records program at the Greater Chicago Legal Clinic.
“Before it could be all the way fixed, COVID happened,” he said. “Everything had to be changed, and now there’s a new backlog.”
The vast majority of court operations were shut down in mid-March 2020 due to the COVID-19 pandemic. And while many hearings at criminal court started back up again after a few months, expungement and sealing hearings that involved objections from prosecutors were not held for almost a year.
“It’s a big problem that there weren’t any expungements done for almost a year,” Curle said. “Of course there are going to be a lot of problems when that’s the case.”
Some of the petitioners whose cases are showing up in Zoom court now filed their paperwork back in 2019, Curle said.
Since then, the court system has dealt with a pandemic. The clerk’s office has dealt with severe understaffing. A new Circuit clerk was sworn in and a new Criminal Division acting presiding judge was assigned within about a month of each other, and each implemented new procedures for handling expungement hearings.
Under former Clerk Dorothy Brown’s administration, for example, petitions had to be physically moved between the Daley Center downtown and Leighton on the Southwest Side. That has since been changed, but may account for some recent hearings in which paperwork could not be located, Hanlon said.
The overall effect, Williams noted, is that for a case to be successfully heard on the expungement docket in 2021, an overworked clerk might have to find and process paperwork that was filed two or more years ago, when entirely different procedures, personnel and leadership were in place.
“We have made quite a bit of progress in getting through the backlog in the expungement and sealing hearings and I think we’ve gotten a significant portion of the backlog done,” he told the Tribune. “Obviously there is a lot of work to do but we believe that the right people are in place … so that people aren’t waiting so long and files aren’t missing.”
Seeking a clean slate
Among the expungement petitioners who faced unexpected hurdles this year was J.T., who moved to turbulent Humboldt Park as a teenager and fell in with a gang.
But he has long since turned things around, said J.T., who spoke to the Tribune on condition that his full name not be used, as he is trying to separate himself from his court issues and is looking for work. He is well into his 40s now. He got his degree a few years ago, a bachelor’s in elementary education from DePaul University.
After his troubled earlier years, J.T. wants to find a job in youth advocacy, helping disadvantaged kids and families. He had a hard time finding jobs in his field after graduating, and believed that part of it was due to his background.
“I (got) disheartened at the lack of response to my resume’s distribution,” he said with a sigh. “I was like, this is killing me, I did all this work for nothing.”
So in April, he hired Fakhoury’s firm, which filed to get his record cleared: some cases expunged, others sealed.
According to Fakhoury and Colleen LeFevour, J.T’s attorneys, the timeline runs like this: They requested a court hearing in late June, at which prosecutors raised no objections. The judge granted his petitions.
His attorneys got a copy of the order to seal. But for some reason, they did not get a copy of the order to expunge about a dozen court records.
They raised concerns with a clerk, who apparently scheduled the case for a hearing in Septemberso a judge could sort things out. J.T.’s attorneys learned about that after the fact, when they were sent paperwork showing that the case was in court but a judge marked the file as incomplete.
So they went to court once more, in mid-October, when a different judge formally granted the expungements a second time.
But his attorneys could not get a copy of the actual order showing that the expungements were granted, despite repeated requests to clerks, they said. Without an order in hand, there was a question about whether law enforcement agencies have received it. And if they have not received it, they haven’t followed its instructions to expunge the records.
In his statement to the Tribune, Hanlon said the clerk’s office is “not experiencing a situation where orders are disappearing,” but acknowledged that the pandemic created a “bottleneck” in getting orders to attorneys and petitioners. The office sends granted orders to agencies each Friday in a mass mailing, Hanlon said.
Meanwhile, J.T. was working two jobs below his skill set to make ends meet, he said. And he was hesitant to start applying for better work until he knew for sure whether the judge’s orders had gone through.
“I did the work of saying, ‘look, I know back when I was younger I made poor choices, let me have a clean slate,’” he said. “What else can I do? I’m open to suggestions, but I’m looking pretty bleak right now.”
About a week after the Tribune reached out to the clerk’s office for comment on J.T.’s case, the order was at last emailed to his attorneys. They are still waiting for acknowledgment from law enforcement that it has been received and processed.