What’s On Their Minds: Unsealing a Judicial Record of Acquittal-Standing in Quicksand? State of Ohio v. Terrell Vanzandt

Update: on January 28, 2015, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On May 27, 2014, the Supreme Court of Ohio heard oral argument in State of Ohio v. Terrell Vanzandt, f.k.a. Terrell Asberry, 2013-1010. This case deals with the question of whether judicially sealed records of non-convictions may be unsealed by a trial court and used in a subsequent criminal proceeding stemming from the sealed case.

Case Background

Terrell Vanzandt was indicted on three counts of drug trafficking and one count of aggravated trafficking. A jury acquitted Vanzandt of all charges, and he subsequently moved to seal the record pursuant to R.C. 2953.52, which the trial court granted. Several months later, Vanzandt was indicted for retaliation against one of the witnesses in the drug trafficking case. The State moved to unseal the record in order to prove its retaliation case.  The trial court granted the motion to unseal Vanzandt’s record for the limited purpose of use by the State in the retaliation case. The First District Court of Appeals affirmed the trial court’s order to unseal Vanzandt’s record. Read the oral argument preview of this case here.

Key Statutes and Precedent

Pepper Pike v. Doe, 66 Ohio St.2d 374 (1981) (absent statutory authorization, trial courts have inherent authority to order expungement in unusual and exceptional circumstances) This case was decided before a statutory remedy was available to determine how to seal records of non-convictions.

Schussheim v. Schussheim, 2013-Ohio-4529. (trial court has the authority to seal records relating to a dissolved civil protection order without express statutory authorization in unusual and exceptional circumstances, applying Pepper Pike)

R.C. 2953.52 allows any person (1) found not guilty by a jury or by a court…to file an application in support of sealing the official records affiliated with the case. The trial court must follow the procedures prescribed in the statute before sealing the records, which includes a codification of the Pepper Pike balancing test at R.C. 2953.52(B)(2)(d).

R.C. 2953.53(D) provides the necessary actions which must be taken by a public office or agency when a court order to seal records is received, and codifies the very limited exceptions to the availability of sealed records.

R.C. 2953.54(A)(3) allows an additional exception for law enforcement agencies to share information from sealed records in the investigation of another offense, “if the facts incident to the offense being investigated by the [second] law enforcement agency and the facts incident to [the sealed offense] are reasonably similar.” However, the statute limits the information which may be shared to the name of the person whose record is sealed, if the original investigating agency believes that information to be necessary to the second agency’s investigation.

Note: R.C. 2953.51-2953.61 do not otherwise contain a statutory procedure for unsealing a sealed record of non-convictions.

At Oral Argument

Vanzandt’s Argument

The General Assembly has been clear and unambiguous in R.C. 2953.53(D) about when a sealed record of acquittal may be used. Using it to prove an element of a different, later alleged offense is not one of those uses. The appeals court wrongly circumvented this statute. It is absolutely incorrect to hold that since courts have inherent authority to seal records, they also have the inherent authority to unseal them. There is no inherent authority to unseal a sealed record of acquittal. The authority to unseal a record of acquittal is purely statutory. None of the limited exceptions in R.C. 2953.53(D) applies here. This court should hold that sealed records of nonconvictions can only be used as prescribed in the statute.

State’s Argument 

By statute, sealed conviction records may be used as proof in a future criminal case if necessary, but there is no statutory equivalent for an acquittal or a dismissal. But there is also no statute which expressly forbids the unsealing of a record of nonconviction.  It is perfectly correct to assume that if, in the absence of statutory authority, a trial court has the inherent power to seal, it also has inherent power to unseal in exceptional circumstances.  This was one such circumstance, and an extremely rare one (the prosecutor stated that in nearly a dozen years of doing expungement work, this is the only time he had seen a need for a record of acquittal).

In this case, the prosecution needed to show the earlier case existed to prove its retaliation case. The trial court correctly allowed the state to use the defendant’s sealed record for an extremely limited purpose in a subsequent criminal case (which the prosecutor conceded has now been dismissed for want of prosecution).

What Was on their Minds

Statutory versus Inherent Authority

Do courts have inherent authority to seal records in circumstances that do not fit within the statutes on sealing, asked Justice Pfeifer?  If there is authority to seal, is there complimentary authority to unseal?

Was the trial judge presented with R.C. 2929.53(D) asked Justice Lanzinger?

Was there any reliance on R.C.2953.54 (A)(3), which refers to law enforcement using sealed records? Why wasn’t that sufficient without going into any inherent authority, asked Justice French? (to the prosecutor’s credit, he explained why he did not think this section applied, despite this opening.) Justice French went on, that if the court were to disagree with the prosecutor on this point, and find that one of the statutory exceptions allowed for the use of the sealed record, was there any need for inherent authority?

Is there any statutory authority to unseal for this purpose, asked Justice O’Neill?

Sealing versus Unsealing

Is there is case law that says that in addition to the statute there is inherent authority to seal records, asked Justice Pfeifer? Chief Justice O’Connor asked the same thing in slightly different words.

Is it statutory to seal a record but discretionary to unseal it, asked Justice O’Neill? Once something is sealed, isn’t it sealed forevermore?

If this were a sealed record of conviction, this would be an entirely different story, would it not, asked Justice Lanzinger? (yes, both sides agreed)

Proving the Retaliation Case

Without unsealing this record, how does the state prove the crime of retaliation, asked Justice Pfeifer? Wouldn’t defense counsel try and drastically limit any testimony of the witness in the retaliation case?

Sealing doesn’t preclude law enforcement or the witness from testifying, does it, asked Chief Justice O’Connor?  Why is the record needed? The Chief just jumped all over the prosecutor here. Why did the state need this information? Weren’t there perfectly legitimate other ways to prove this case? Why couldn’t the victim have talked about her involvement in the prior case? The Chief suggested a number of ways the state could have elicited the information without using the sealed record. A bit later she commented that the state didn’t need a document to prove that the witness could have testified as to what case she was involved in previously and the circumstances.  She got more and more worked up, and finally stated to the prosecutor:

“I’m a little confused as to why we are listening to this, quite frankly” Ouch! And from a former prosecutor.

How It Looks from the Bleachers

To Professor Bettman

Like a killer loss for the state.  A real ouch.  Kudos to the prosecutor, for remaining professional even when Justice French tried to give him an out he did not think fit, and for standing up to Chief Justice O’Connor’s withering “cross examination.” (although he looked very unhappy.) I think this decision is going to be short and simple—there simply is no statutory basis to unseal a record of acquittal, none of the limited exceptions in the statute fit, and the court is not likely to find any inherent authority to do so here.  Chief Justice O’Connor, and Justices Lanzinger, Pfeifer and O’Neill clearly are there.  Justice French, as is her wont, tried to find a fit in one of the statutory exceptions, and may pursue that, but given her dissent in Schussheim v. Schussheim, likely will join the majority.  Justice O’Donnell, author of the very expansionist opinion in Schussheim was uncharacteristically quiet.  He is often on the giving end of hurling the “activist” epithet at colleagues (although he was on the receiving end in Schussheim, which he wrote), and Vanzant’s argument was about as legislatively deferential is it gets.

The other thing that struck me is that the state should have figured out a different way to prove the retaliation claim than trying to use a sealed record of acquittal.  Admittedly, that may not be as easy as the Chief made it sound, for reasons suggested by Justice Pfeifer, but the state should have tried.  And the case was dismissed anyway for want of prosecution.

To Student Contributor Rebecca Campbell

By the end of oral argument it seemed very clear: the Court will overwhelmingly rule in favor of Vanzandt. R.C. 2953.53 clearly provides exceptions for use of sealed records, and the State sought use of the record in a manner outside the definition of those categories.

The State faced an uphill battle going into oral argument – writing in separate dissents which were joined by Justice Lanzinger in Schussheim v. Schussheim, Chief Justice O’Connor and Justice French demonstrated their disagreement with the application of Pepper Pike as a tool for the expansion of judicial power in the realm of sealing records; before argument started, those justices already believed Pepper Pike’s exception to be a narrow fix to a gap in statutory authority which has since been cleaned up by the General Assembly. This case was going to be a hard sell to those three justices when it walked in the door. Unfortunately, the First District did not have the Schussheim crystal ball when it ruled in Vanzandt; the First District ruled in favor of Vanzandt in June 2013, while the Schussheim ruling followed in October 2013.

Justices Pfeifer and O’Neill, who joined Justice O’Donnell’s majority opinion in Schussheim (which used the Pepper Pike’s “unusual and exceptional circumstance” test to expand judicial authority to the sealing of dissolved CPOs in adult proceedings), will stop short of applying Pepper Pike to the unsealing of an already sealed record of an acquittal. Justice O’Donnell did not join the conversation during oral argument; even though he wrote the opinion in Schussheim which stirred such strong dissent from his colleagues, I believe it is unlikely he’ll maintain course and find inherent judicial authority to unseal records when there are statutory guidelines and other methods for obtaining information contained within the record.

Justice Kennedy, who did not participate in the Schussheim case, also did not speak during oral argument and therefore remains a mystery. However, Vanzandt’s counsel did an excellent job of arguing other methods could be used to introduce the necessary evidence during the second trial; I don’t foresee her advocating for the expansion of judicial authority to unseal records.

To Student Contributor Austin LiPuma

Austin is a rising 2L and new to the blog.  This is his first post on “How it looks from the Bleachers.”

Prior to oral argument, I was relatively certain, based on the lower courts’ opinions, that Vanzandt would have very little traction. However, the argument demonstrated that the justices interpreted R.C. 2953 very narrowly. At the conclusion of the argument, it appears that the rarity of circumstances in which records of nonconviction are needed does not supersede statutory language. I believe the court will reverse the court of appeals and hold in favor of Vanzandt.

As soon as the prosecutor got up, Chief Justice O’Connor skewered his argument: Couldn’t the victim of the retaliation have simply testified to past dealings and interactions with Vandzandt? Was it truly necessary to unseal the case, even for a limited purpose, when sufficient testimony could still be elicited without it? Chief Justice O’Connor was not alone in this crusade against the state. Justice French proposed that the state chose the wrong avenue and should have applied RC 2953.54(A)(3), which permits unsealing for some prosecutorial purposes. Justice O’Neill prompted counsel to point to a statute that would permit unsealing for a limited purpose; a statute that does not exist. Justice Pfeifer may have summed up the general notions of the court when he quipped that the state’s argument was “standing on quicksand.” While a little extreme, it did appear that as time went on the state’s argument continued to sink. That is why I believe the court will reverse the appellate court’s decision and not permit the State to unseal the acquitted case.

 

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One Response to What’s On Their Minds: Unsealing a Judicial Record of Acquittal-Standing in Quicksand? State of Ohio v. Terrell Vanzandt

  1. John says:

    Sounds reasonable, but who really knows?

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