Opinion
C.A. No. 00X-03-019
Submitted: October 25, 2000
Decided: November 16, 2000
On Petitioner Roger W. Lessey's Petition for Expungement. Granted.
Matthew P. Denn, Esquire, Wilmington, Delaware. Attorney for Petitioner.
Christine M. Showalter, Deputy Attorney General, Wilmington, Delaware. Attorney for Respondent.
MEMORANDUM OPINION
Petitioner, Roger Lessey ("Petitioner"), has filed a Petition for Expungement of Criminal Record (the "Petition"). (D.I. 1, 2) The State of Delaware (the "State") opposes the Petition. (D.I. 3, 7) To follow is the Court's decision on the Petition.
THE FACTS
On November 21, 1996, the City of New Castle Police Department arrested Petitioner, a school teacher, and charged him with one count of Offensive Touching after one of his students alleged that Petitioner kissed and hugged her in a manner which caused her offense or alarm. Petitioner was tried in the Family Court on the Offensive Touching charge and was convicted. Petitioner exercised his right to a de novo appeal in the Superior Court. On March 9, 1999, he was acquitted of the Offensive Touching charge by a Superior Court jury.
Petitioner filed his Petition on March 21, 2000 and, at the Court's request, filed a letter brief in support of the Petition on July 10, 2000. (D.I.6) The State filed two letters in opposition to the Petition, the first on May 22, 2000, and the second on July 17, 2000. (D.I. 3, 7) The matter is ripe for decision.
THE APPLICABLE LEGAL STANDARD
Pursuant to 11 Del. C. § 4372(a)(1), a person acquitted of a criminal charge may file a petition in this Court requesting expungement of the police and court records relating to the arrest and the prosecution of the charge. The Court may, in its discretion, grant a petition for expungement when it finds that "the continued existence and possible dissemination of information relating to the arrest of the petitioner causes, or may cause, circumstances which constitute a manifest injustice to the petitioner. . . ." 11 Del. C. § 4373(a). See also, Hechinger v. State, Del. Supr., No. 516, 1997, Holland, J. (Feb. 27, 1998)(ORDER) (emphasizing the discretion afforded the Court in determining whether circumstances of manifest injustice exist).
PETITIONER'S CONTENTIONS
Petitioner alleges that his twenty-year teaching career in the Delaware public school system was terminated by the Colonial School District as a result of his November 21, 2000 arrest. Petitioner states that the record of his arrest has prevented him from securing employment as a teacher both in and out of the State of Delaware. Accordingly, Petitioner asserts that the continued existence and possible dissemination of information relating to his arrest for Offensive Touching constitute a manifest injustice to him. Petitioner urges the Court to exercise its discretion in favor of expunging the arrest from his record.
The City of New Castle Police Department also arrested Petitioner on November 26, 1996, for two additional instances of Offensive Touching stemming from separate complaints by another female student. Petitioner alleges that these charges were nothing more than "copycat" allegations made by another student after news of his arrest reached the student body. In any event, the State of Delaware did not pursue those charges and entered a nolle prosequi in the Family Court on both counts. All indicia of this second arrest has been expunged by a stipulated Family Court order pursuant to 10 Del. C. § 1025(f). Lessey v. State, Del. Fain., Pet. No. AN96-365, Poppiti, J. (Oct. 18, 2000).
THE STATE'S OPPOSITION
The State opposes the Petition principally on three grounds. First, the State points to Petitioner's 1976 arrest and conviction on one count of Shoplifting in the City of Newark and contends that this arrest and conviction constitutes prima facie evidence that the continued existence of the Offensive Touching arrest on Petitioner's criminal record does not and will not constitute a manifest injustice. See 11 Del. C. § 4373(a). Second, the State argues that the Court should take note of the Petitioner's conviction for Offensive Touching in the Family Court, presumably in the context of this Court's determination of whether the Petitioner meets the statutory criteria for expungement. See e.g., Horowitz v. State, Del. Super., C.A. No. 99X-10-004, Quillen, J. (Dec. 14, 1999)(ORDER) (denying petition for expungement upon noting that Family Court conviction was followed by Attorney General's probation on an appeal de novo in Superior Court). Lastly, the State contends that the existence of publicly available media reports and school district records related to the arrest weighs heavily against expungement. See, e.g., Farr v. State, Del. Super, C.A. No. 95X-03-016, Cooch, J. (April 15, 1997) (Mem. Op.) (media attention to the arrest considered by the Court as a factor mitigating against expungement).
THE CONTINUED EXISTENCE OF THE ARREST RECORD CONSTITUTES A MANIFEST INJUSTICE TO THE PETITIONER
The Court will order Petitioner's record expunged with respect to the November 21, 1996 arrest for Offensive Touching. The Court is persuaded that the continued existence of this arrest on Petitioner's record will cause "circumstances which constitute a manifest injustice to the [Pletitioner." See 11 Del. C. § 4373(a). The Court recognizes the statutory presumption against expungement created by Petitioner's past conviction for Shoplifting. 11 Del. C. § 4373(a). The statutory presumption, however, is by no means absolute and can be overcome by compelling evidence of "manifest injustice" to the Petitioner caused by the continued reference to the arrest in publicly available records. Such compelling evidence exists here.
The verified record establishes that the Petitioner has applied for at least fifteen (15) teaching positions since his termination from the Colonial School District following the November 21, 1996 arrest. Notwithstanding his more than twenty (20) years of experience as a teacher, Petitioner has found no success in his efforts to find work in his chosen profession. He currently works as a sales clerk in a Wilmington bookstore. Moreover, he has been advised by a potential employer in Pennsylvania that he will be eligible to work as a teacher in that state only after the record of his arrest for Offensive Touching is expunged. Thus, the Court finds that Petitioner's record of arrest for Offensive Touching has "hindered his ability to obtain employment" and thereby is causing him to suffer a "manifest injustice." See Doody v. State, Del. Super., C.A. No. 98X-04-009, Lee, J. (July 22, 1998)(Mem.Op.); Sackett v. State, Del. Super., C.A. No. 97X-10-003, Alford, J. (May 7, 1998) (Mem. Op.).
The State challenges the sufficiency of Petitioner's affidavit in support of his Petition, citing Farr v. State, Del. Super., C.A. No. 95X-03-0016, Cooch, J. (Apr. 15, 1997) (Mem. Op.), for the proposition that an affidavit in support of an expungement petition must, as a matter of law, meet a threshold level of specificity to support a finding of "manifest injustice." The Court will not quibble with the State's interpretation of Farr — except to note Judge Cooch's recognition of the discretion afforded the Court under the statute when determining whether "manifest injustice" exists. Recognizing the discretionary nature of the court's disposition of these matters, the Court must question whether Farr intends, as the State suggests, to set a definitive legal standard by which to measure all affidavits in support of expungement petitions. In any event, Petitioner's affidavit in this case clearly describes the employment opportunities he has lost as a result of the arrest record, and thus can be distinguished factually from Farr. The Petitioner describes his application and rejection for more than fifteen teaching jobs, and he also points to his suspension and termination from the Colonial School District, all as direct consequences of the Offensive Touching arrest and/or the continued maintenance of records relating to the arrest.
It is, of course, not at all surprising that Petitioner has encountered difficulty finding work as a teacher. The sensitive nature of the accusations which prompted the criminal charges against him run to the very heart of his fitness to serve as a teacher of young children.
See 11 Del. C. § 4371 (explaining that one of the purposes of Delaware's statutory expungement scheme is "to protect innocent persons from unwarranted damage which may occur", inter alia, when the arrest records hinder efforts "to obtain employment").
The Court rejects the State's contention that the Family Court conviction of Petitioner for Offensive Touching somehow militates against granting the Petition. The Family Court conviction was voided when Petitioner's appeal de novo concluded favorably for him with a jury acquittal. Unlike Horowitz, supra, where the Family Court conviction was followed by Attorney's General probation pursuant to which the petitioner admitted his guilt, or Farr, supra., where a regulatory board found facts justifying censure of the petitioner after he was acquitted by a jury, the Petitioner sub judice has been acquitted by a fact finder who considered the same charge that was presented to the Family Court based on the same facts measured against the same burden of proof. The Family Court conviction has no relevance under these circumstances.
Lastly, past media coverage of Petitioner's arrest does not minimize the "manifest injustice" in this case. It appears from the undisputed record that Petitioner's difficulty in securing employment does not arise from the past media coverage of the incident, the subsequent trials, or the public's knowledge of the arrest from whatever source, but rather from the necessity to disclose the arrest to putative employers, presumably prompted by employment applications or interview questions. With this order, Petitioner may now report that his arrest has been expunged.
CONCLUSION
For the reasons set forth above, with respect to court records and police records relating to the charge of Offensive Touching for which Petitioner was acquitted by a Superior Court jury, the Petition for Expungement is hereby GRANTED. It is ORDERED that:
(a) All police and court records relating to the charge of Offensive Touching that resulted from Petitioner's November 21, 1996 arrest are hereby expunged pursuant to 11 Del. C. § 4371;
(b) Certified copies of this Court's Order be delivered to the Petitioner's attorney, the New Castle County Prothonotary, the Delaware Department of Justice, the State Bureau of Identification, the Delaware State Police, the City of New Castle Police, the Family Court of the State of Delaware in and for New Castle County, and Justice of the Peace Court No. 11;
(c) All records specified in this Order shall, within sixty (60) days of this Order, be removed from the files, and placed in the control of the Supervisor of the State Bureau of Identification who shall be designated to retain control over all expunged records, and who shall ensure that the records or the information contained. therein is not released for any reason except as specified in 11 Del. C. § 4374;
(d) In response to requests from non-law enforcement officers for information or records on the Petitioner, the law enforcement officer and department shall reply, with respect to the arrest and proceedings which are the subject of this Petition and Order, that there is no record.