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Wednesday, March 24, 2010
Curbs on Access To Crime Files Proposed
By Thomas J. Cole
Journal Staff Writer
As the state legislative and executive branches are moving to make more government information available to the public on the Internet, the judicial branch is headed in the opposite direction.
The legislative and executive branches — although somewhat reluctantly at times — have embraced the ease with which the public can access online information.
It is that same ease of access that concerns some in the judiciary.
The Administrative Office of the Courts already has blocked public Internet access to domestic violence restraining orders in an effort to protect the identities and locations of victims — although critics say that can be done without removing information on the perpetrators.
That move by the courts has had the unintended consequence of shielding serial stalkers like Ralph Montoya, accused in the murder this month of a former girlfriend and a University of New Mexico professor.
A potential employer or member of the public had virtually no way of learning that Montoya had stalked and terrorized two other women in the past.
Now, an advisory board to the state Supreme Court has recommended also cutting off public online access to records of criminal cases that were closed because charges were dismissed, vacated or conditionally discharged or because the defendants were acquitted at trial.
Records of cases resulting in deferred sentences with charges dismissed would still be available online because defendants are adjudicated guilty in those cases.
"A limitation on Internet publishing of nonconviction records will help protect individuals whose charges were dismissed or adjudicated 'not guilty' from undue employment or housing discrimination and social stigma," said a report prepared by a subcommittee of the Judicial Information Systems Council.
But Michael Corwin of Corwin Research & Investigations said the online system for accessing court records has allowed employers, attorneys and other members of the public to research criminal charges against potential employees and other individuals.
Removing online records of criminal cases that didn't result in convictions will put the public at greater risk, Corwin said.
"Many circumstances can lead to a failure to convict that do not reflect on whether the crime actually happened," he said, adding that research shows the more violent the crime, the less likely there will be a conviction.
"There is no doubt that violent people, when allowed to hide their history, will continue in their violent ways," Corwin said.
The Judicial Information Systems Council, an information technology advisory board to the Supreme Court, approved the subcommittee recommendation to end public Internet access to the criminal case records it doesn't want the public to have easy access to.
"I believe that people are innocent until proven guilty," said Magistrate Karen Mitchell of Roy, who headed the subcommittee that made the recommendation. "If they are innocent, there should be no stigma" of once being charged with a crime.
Drunken-driving cases that are dismissed for lack of prosecution or other reasons unrelated to guilt are covered by the recommendation, and there are thousands of those each year in New Mexico.
Here's another example:
Under the recommendation, you would know from the online courts system that Brandon R. Craig was a convicted dope dealer but you wouldn't know he was acquitted last year of murder.
He was acquitted despite testimony from three people that they saw Craig shoot three teenagers in the East Mountains in 1999. The shooting was allegedly over a drug debt.
The public would still be able to access the records of the nonconviction criminal cases at the courts where they were handled. But you will have to know to ask the courts to search their internal databases, not the online system, for such criminal cases.
The action by the advisory council Thursday came on close votes and after what was described as a lively debate among the judges and other members of the panel.
The Supreme Court will make the final call. It can either reject the recommendation or issue an order or rule to carry it out with or without amendment.
The recommendation was opposed by the Greater Albuquerque Chamber of Commerce and the New Mexico Foundation for Open Government, whose financial supporters include news organizations like the Journal, other businesses and individuals (I'm one of those).
Sarah Welsh, executive director of the New Mexico FOG, said closing off public online access to the criminal case records would run counter to the fundamental idea that the courts' business is the public's business.
"The fact of an acquittal is a public event, just like the fact of a conviction," Welsh said.
Corwin was unimpressed that records of the criminal cases would still be available to the public at the offices of court clerks.
"The Web site's most important feature is that it lets you know what court you need to go to in order to view a case file," Corwin said. "The state is too big and has too many courts to make it feasible to search a person for cases" without knowing what courts to go to.
Sealed cases
In another matter related to public access to court information, the Supreme Court last month adopted rules that make it tougher for judges to seal cases from public view.
To seal all or part of a case, a judge will have to find that a personal privacy interest exists and that it outweighs the public's right to access the record or records being sealed.
Also, the fact that a case was filed couldn't be kept secret from the public even if the entire case were sealed.
The new rules take effect July 1. Also taking effect on that date will be new rules that restrict the filing of some personal information in court records, such as Social Security numbers, dates of birth and bank account numbers. Those rules are designed to combat identity theft.
UpFront is a daily front-page news and opinion column. Thom Cole can be reached in Santa Fe at (505) 992-6280 or at tcole@abqjournal.com.
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