The Collin County Observer™

When does innocence mean innocence?
 
A Frisco man has been unable to clear his name for over four years. An appeals court has decided he has no right to seek equitable justice. Though he has never been found guilty of any crime, he is shackled with a record he is unable to clear.
 
It is our country’s tradition that a person charged with a crime is presumed innocent unless found guilty by a judge or jury, and that a person can only be sentenced if convicted. But in this 21st century, a person never adjudicated guilty of a crime is still followed around by his record. An employer, a landlord, a banker, an insurance company and the police can easily access an applicant’s “criminal” background. Companies make decisions after looking up an applicant’s record. Now it is routine. A person cannot obtain a good job or a new apartment – merely for being charged with a crime, without a guilty conviction.
 
Nader Akhavan of Frisco told the appeals court that the charges against him have ruined his life. He was a highly paid professional, but since the 2007 charges, he has been unable to find employment in his field after any potential employer obtains a background check.
 
He was indicted in 2007 of two charges of aggravated child sexual assault after two young sisters alleged Akhavan had touched them in an indecent manner. Eleven months later, two jury trials were held in the 366th District Court.  The jury voted unanimously to acquit Akhavan on one charge, but were dead-locked on the second charge. Ten jurors voted ‘not guilty.’
 
In this case, the man was charged with the heinous crime of child sexual indecency. He was accused by a very young child, and he denied he committed any crime. There were no other witnesses and no physical evidence. After four years, the State admits it can not obtain a guilty plea. Because the DA does not want to lose a trial, the District Attorney has stated it will not demand a trial. So for the rest of his life this man will be followed around by an allegation, which can not be proven or disproved – nor allowed a trial to seek a verdict.
 
Two years later, the District Attorney dismissed the charges, telling the court that, “it has been determined that the State is unable to make a prima facia case.”
 
In 2009, Akhavan asked the 366th District Court to expunge his criminal record from all police, DA, and courts files. Akhavan told the court that he has always maintained he has never touched the children in a sexual manner, but that the District Attorney will not allow him an opportunity to have a fair trial. He had been able to earn over $345,000 a year, but now that he is ruined he is unable to find suitable employment.
 
The District Attorney's Office under Judge Roach objected at the expunction hearing that there the defendant has no legal right to gain an expunction after being charged. The DA also argued that the complainant has never recanted her testimony, but that the child’s father has not been cooperative in bringing the child to the hearings. The DA’s believes that it is no longer in the best interest of the child to  require her to appear in a trial. But the DA’s office also states it is not interested in seeking a trial that will result in a not guilty verdict.
 
Assistant District Attorney Andrea Westerfield argued the case before Judge Ray Wheless saying, “…case law is very clear that expunction is not an equitable right, it is not a constitutional issue”, but nevertheless, Judge Ray Wheless granted Akhavan's request for expunction.
 
The District Attorney's Office insisted that he does not want the defendant found innocent, nor free of the charges. The DA’s office appealed Judge Wheless’s ruling to the Texas 5th Court of Appeals.
                                                                                                                     
Last week, the Texas 5th Court of Appeals overturned Judge Ray Wheless’ decision. The appeals court's decision reversed and rendered the trial court’s decision,  meaning that the defendant’s expunction was not only denied…but it was final ad infinitum – the accused cannot petition for this relief again. The Appeals Court refused to look at Constitutional issues or listen to arguments of equity (justice). The 5th Appeals Court Justice FitzGerald wrote, “We conclude that Akhavan's constitutional challenge... is not properly before us”, and also wrote, that, “Akhavan’s argument for equitable expunction is not properly before us”.
 
Can an appeals judge write that he is unwilling to seek, “justice”? Not likely. Instead Justice FitzGerald writes the court can not order, “Equity”. The court decided “fairness” is not “justice”.

In law, an expunction for one who has not been convicted is only allowed if the grand jury has made a mistake, or the statute of limits have run out. Akhavan had the burden to prove the error by the grand jury, and the statute of limits has no limit. The appeals court decided that the defendant did not prove a mistake and that there was no statute of limitations, therefore Judge Wheless was overturned.
 
Texas Appellate Courts rarely order justice.
 
This month, the Texas Legislature passed HB 2889.  It has been sent to the Governor, but it has not yet been signed. HB 2889 allows a defendant to seek an expunction when the state dismisses his charges, and if the DA agrees to that expunction. The House voted 141 yes, 1 nay, the Senate also agreed to the bill with a vote of 26 – 5.
 
It is unknown whether a citizen can seek another expunction after it had been earlier denied. Even if the Governor signs the bill, a citizen charged with a crime can not demand a trial nor demand an expunction. A Criminal District Attorney has all the power. Former DA John Roach defended his right to force a citizen to carry an arrest record for life, without a trial.
 
Is an indictment and an arrest record an impediment to a person’s “life, liberty and pursuit of happiness”, even if he is never allowed to face his future before a jury of peers?
 
Bill

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NOTES

• The transcript of the 366th hearing “in re Nader Akhavan”, February 5, 2010
• Brief for Appellee Nader Akhavan
• Amended Appellant’s Brief for the Collin County District Attorney’s Office
• Texas 5th Appeals Court opinion of, Collin County District Attorney’s Office V. Nader Akhavan, May 25, 2011
• Text of HB 2889