Brown White & Osborn LLP Wins Judgment of Factual Innocence In High-Profile Criminal Case

When a person is charged with a crime, his or her first worry is conviction. When the government charges a defendant, it throws all its resources and authority into putting that person in prison. And it usually succeeds. Most criminal charges result in guilty pleas, and most trials end in conviction. That’s why an aggressive and experienced criminal-defense team is so important: beating the odds to win an acquittal—or even better, pretrial dismissal of the charges—doesn’t happen by accident.

Winning an acquittal or dismissal, and saving a client a life-ruining term of incarceration, is something to celebrate. Our adversarial system of justice has worked, and the client can get back to his life. Or can he? In fact, as anyone who’s ever applied for a job can attest, your rap sheet follows you forever—even if you were never convicted. The state Department of Justice Policy is to maintain records of all arrests “until the subject reaches 100 years of age,” regardless of whether the arrest resulted in a conviction.

Now, from the perspective of law enforcement, arrest records are useful. When I was a prosecutor, I always wanted to see them. If you think a guy is a drug trafficker and he has a dozen possession arrests, that means something. It’s not an argument you can make in court, but it may warrant a closer look at the guy.

But the problem is, nowadays anyone, not just law enforcement, can look at arrest records. And there’s a reason we don’t let prosecutors argue guilt in court based on prior arrests—we don’t want juries thinking, “Well, he must have done something to get arrested all those times, so he probably committed this offense.” The temptation to infer guilt from the fact of arrest, or charge, is very strong. And that means that the rationale for maintaining arrest records forever, in the absence of a conviction, is increasingly dubious in an era of universal public access to personal information.

There is a legislative mechanism for expunging arrest records. But it’s not automatic, and for the cases when it’s most needed—when the charges are very serious—the government often opposes the motion. In such cases, a defendant who’s been acquitted or had the charges dismissed must go to court and request a “finding of factual innocence,” under Penal Code section 851.8. But getting that finding requires meeting what’s probably the highest burden of proof in our entire legal system: the defendant must prove to the court, in a contested hearing, that “no reasonable cause exists to believe that the arrestee committed the offense.”

As the Supreme Court has explained, that means that the defendant must “establish that facts exist which would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested is guilty of the crimes charged.” People v. Adair, 29 Cal. 4th 895, 904 (2003). It’s no wonder that courts hardly ever grant motions for a finding of factual innocence over government opposition.

But with preparation and diligence—and an innocent client—it is possible to overcome the government’s opposition and vindicate your client’s rights under section 851.8. Case in point: Our firm recently defended a man arrested on charges of assault, kidnapping, and rape. The allegations were false; he didn’t do it. We conducted an extensive pretrial investigation and developed additional evidence at the preliminary hearing. We then organized all the evidence, presented it to the prosecution, and requested that they dismiss. The prosecution, to its credit, decided not to proceed with the case, and the court dismissed the charges.

But the prosecution refused to stipulate to expungement. The government took the position that although our client had not been convicted of a crime, and the government did not believe it could convict him of a crime, our client still ought to carry around the stigma of being an accused kidnapper and rapist for the rest of his life. And that stigma is huge, as you can imagine.

So we decided to fight. Putting on a hearing on a motion for a judgment of innocence is like a trial—only in reverse, because the innocent defendant has the (high) burden of proof, and the government just has to knock holes in the evidence. The main difference—and the only reason this isn’t prohibitively expensive for all but a very few defendants—is that you don’t need live witnesses. You can call witnesses if you have to, but the statute allows the court to make the ruling based on the record evidence developed in the case: transcripts, police reports, physical evidence, documents, declarations, etc. So you put together the evidence, organize it, submit a brief, and then go argue based on the record you’ve created.

We did that, and after a hearing that stretched well into the afternoon, we won. The judge found that there were no facts that could lead a reasonable person to believe that our client had committed the charged offenses, and he issued an order requiring all state agencies in possession of charge and arrest records to seal them immediately. (The statute provides for destruction three years after sealing.)

Contested motions for a finding of factual innocence are rarely brought, and even more rarely won. But it can be done. We’re particularly proud of this result. Our client was innocent, and should not have to spend the rest of his life with a record of false accusations hanging on his shoulders. We’re proud of the fact that we live in a country in which an individual can fight unjust accusations and win.

Caleb Mason

Caleb Mason

Caleb Mason is a partner with Brown White & Osborn LLP. He is a former federal prosecutor, and handles a wide variety of civil and criminal litigation. He has authored numerous scholarly publications on criminal and constitutional law, and is a frequent media commentator on criminal-justice issues. He was recently appointed to the Police Commission for the city of Claremont, California.
Caleb Mason