Most of these expungements, they say, were made without notification of the prosecuting attorney's office, and were often extended to those whose crime or remaining sentence made their records ineligible for expungement.
John Johnson is the chief deputy prosecuting attorney of Pulaski County. He said there is a procedure for seeking expungement that often wasn't followed in Proctor's court. The way the process is supposed to work, Johnson said, is that those who have been convicted of a crime file a request for expungement with the county clerk. The prosecutor's office is then allowed to formally respond. A hearing is set, and then both prosecutors and the defendant are allowed to make their cases for and against expunging — or “sealing” — the record.
“What was happening was that the expungements were going to the judge,” Johnson said. “People would just turn them in straight to the judge, as opposed to filing them in the clerk's office. Then he'd just enter an order and the order would never make it over to us.”
In recent years, prosecutors began seeing defendants in court who claimed to have had their records expunged — defendants they had convicted in prior cases. In most of the cases that were inappropriately expunged, Johnson said, defendants were ineligible because they hadn't completed their criminal probation. Under Arkansas law, only those who have been pardoned or who have successfully completed the terms of their probation — including the time they are required to spend under state supervision — are eligible for expungement of their record. In many cases, Proctor would allow a defendant to complete the restitution and fines portion of his or her probation, then would expunge the record before moving the defendant into the Cycle Breakers “civil probation” program. The Supreme Court has said there was no provision in the law for a civil probation program.
Had those cases been brought to the attention of the prosecuting attorney's office prior to expungement, Johnson said, prosecutors would have surely objected because “probation is part of the punishment.”
Since prosecutors began actively looking into the records of those who passed through Proctor's court, close to a hundred cases in which records were secretly expunged have been uncovered, and there are likely many more that will never be found. That's because when a record is expunged, even typing the defendant's name into a computer at the prosecutor's office can't bring up details of the case. In most cases, only when the specific case number is typed into the system does the sealed record appear, and then lists the information, including the defendant's name and crime, only as “expunged.”
“What happens is that if it's expunged and then they commit these new offenses, a lot of times you would want to know who the previous victims were,” Johnson said. “It makes it harder to find that out. It reduces the amount of penalty if they re-offend; it keeps them from being placed in a habitual status in a lot of cases. If we don't know about it, we don't know to enhance the penalties that are available because you've committed these other crimes.”
Johnson said there is no one set way of describing what was going on with regard to Proctor's record sealing, because almost every case they've encountered was handled differently. “The variations on the theme were just endless,” Johnson said. “There was a guy who was convicted of a violent offense and Proctor didn't enter judgment for months and months.” Finally, Johnson said, Proctor reduced the charge to a misdemeanor — possibly because those convicted of violent felonies aren't eligible for expungement without a pardon — which made the defendant's record eligible. The record was expunged, and the man was then moved into the Cycle Breakers program.
Vann Smith is the administrative judge over the 6th Judicial District. Judge Smith said that he is aware of Proctor's records expungements, and expects it's an issue the new judge who takes over the 5th Division, Ernest Sanders, will have to look into further once seated.
Smith said he was surprised at the number of expungements Proctor ordered during his time on the bench, “even though I don't know why I should be surprised,” Smith said. “I'm hoping that this Cycle Breakers program will be closed down and all these probationers will be shifted over to the state.”
“The bottom line,” John Johnson said, “is that you want the punishment of a crime to mean something. If everything turns into paying a little money out of the pocket, which makes it a slap on the wrist, then it makes it more likely that they'll re-offend.”
Calls to a number listed for Proctor on a lawsuit he recently filed in an attempt to be reinstated to the bench went unreturned at press time.