It was surprising to learn that ICE and Homeland Security Secretary and model, Kristi Noem, were demonizing the wrongly renditioned Kilmar Abrego Garcia based on domestic violence allegations that had long since been dismissed. On the one hand, it was irrelevant to the violation of the immigration judge’s hold and denial of due process. On the other hand, he hadn’t been convicted, so it was merely an accusation. But on the third hand, it was dismissed, and while I’m unfamiliar with the nuances of criminal procedure in Maryland, how would there be access to a dismissed case? That couldn’t happen in New York.
Under New York Criminal Procedure Law § 160.50, a dismissed case is automatically sealed, except in the very rare instance where the prosecution seeks, and the court grants, a motion to prevent sealing. Back in the good old days, before records were computerized, the defendant’s booking photographs and fingerprints were physically sent back, either to the defendant or his lawyer. We would know the cops didn’t have them because we did.
When computerization began, the law was changed to provide that records of cases terminated in favor of the accused would be destroyed, but that digital images could be retained. But they were still sealed, and while the defendant could access his own criminal history information, they could not be provided to anyone else without an unsealing order by the court.
(d) such records shall be made available to the person accused or to such person’s designated agent, and shall be made available to . . . a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it.
Rarely would such a motion be made, and never in the case of a charge so trivial as disorderly conduct, which was a violation, a noncriminal offence below misdemeanor. Yet, as Leqaa Kordia learned, none of this mattered when ICE came for her.
The New York Police Department is investigating why officers gave U.S. authorities the sealed arrest record of a New Jersey woman who was detained at a protest last year — information that immigration officials are now using to seek her deportation.
Under New York State law and department policy, sealed records of arrests or summons cannot be released. But the police gave the documents to Department of Homeland Security investigators who had requested them as part of what the investigators said was a criminal investigation, Commissioner Jessica Tisch and the woman’s lawyer said on Tuesday.
This link in the NYT quote is to the wrong law, relating to sealing of certain convictions after ten years, and has nothing to do with Kordia’s case. But it gets worse.
On Tuesday, Commissioner Tisch said at a City Hall news conference that an official from Homeland Security Investigations in New Jersey had asked for information about Ms. Kordia, saying that she was being investigated in connection with money laundering.
Money laundering? There’s no money laundering investigation, so what gives?
“That is definitely an instance where we would share information,” [Tisch] said, adding that department officials would look into how the summons record that was part of a sealed case was also provided.
The problem is that the NYPD has no lawful authority to “share information” about a sealed case, even if it was about money laundering and ICE wasn’t just lying through its teeth to circumvent New York’s Sanctuary City law.
Commissioner Tisch said that while the city’s sanctuary laws bar it from helping immigration authorities in civil deportation cases, criminal investigations are a different matter. The Police Department handed over information, “which was all done according to procedure,” she said, without specifying precisely what was transmitted to federal investigators.
Screw procedure. The law prohibits the disclosure of sealed records in the absence of a court-ordered unsealing order. In other words, Tisch is wrong and what the NYPD did by turning over sealed records to ICE was unlawful regardless.
To a large extent, it’s now a matter of faith that the police will honor its duty under CPL § 160.50 since they no longer return photos and prints, and more importantly, since the computerization of records means that all criminal history records, including those dismissed and sealed, remain buried in a database, and often in more than one where such niceties as state sealing laws play no role.
In the past, such violations of law would at least come to the attention of criminal defense lawyers should they pop up where the law prohibited them from being, and motions could be made to address the cops’ unlawful conduct. But when it comes to ICE, and to the denial of due process in deportations, the unlawful use of sealed criminal records could easily evade review and be used without anyone knowing or without any opportunity to challenge the unlawful use of sealed records. This renders the sealing law a farce, and puts the unlawful conduct of using or distributing sealed records beyond the reach of the law.