This week the Appeals Court upheld a lower court’s decision denying a man’s petition to both seal and expunge parts of his criminal record.

According to the Appeals Court,

The petitioner was first arrested in 2012 based on allegations that he repeatedly hit his wife with a wiffle ball bat and pushed their daughter to the floor.

The man was arrested again in 2015 and once more in 2017. These arrests were on separate assault and battery charges made following reports of domestic disputes between the man and his wife.

All criminal charges against the man were ultimately dismissed.

Nevertheless, the incidents still appeared on the man’s criminal record and, according to him, interfered with his state housing subsidies and his ability to rent an apartment.

Consequently, he filed a petition with the Boston Municipal Court (BMC) seeking to have the matters expunged from his record or sealed from public view. The BMC denied both requests and the man appealed the matter. The Appeals Court affirmed the BMC’s decision.

First, regarding expungement, the court notes that:

expungement “goes further” than sealing, in that “it entails the permanent erasure or destruction of a record so that the record is no longer accessible to, or maintained by, the court, any criminal justice agencies or any [government agency]”…Due to these broad ramifications, a judge has discretion to expunge a criminal record only, as applicable here, “if the court determines based on clear and convincing evidence that the record was created as a result of:. . . demonstrable errors by law enforcement; . . . civilian or expert witnesses; . . . [or] by court employees . . .”

Applying this standard to the case at hand, the court writes,

As the petitioner has not articulated any “demonstrable error” by the witnesses, officers, or court, the judge did not err in denying his petition.

Turning next to the petition to seal the man’s record,

Where a dismissal has entered in a criminal case, a judge may seal the record upon determining that doing so would best
serve substantial justice. See G. L. c. 276, Β§ 100C. The sealing petition and accompanying documents should “set[] forth facts that demonstrate good cause for overriding the presumption of public access to court records.”…

In making this determination, a judge should evaluate, at minimum, the following six factors:

“the particular disadvantages identified by the [petitioner] arising from the availability of the criminal record;

evidence of rehabilitation suggesting that the [petitioner] could overcome these disadvantages if the record were sealed;

any other evidence that sealing would alleviate the identified disadvantages;

relevant circumstances of the [petitioner] at the time of the offense that suggest a likelihood of recidivism or of success;

the passage of time since the offense and since the dismissal or nolle prosequi;

and the nature of and reasons for the particular disposition.”

After reciting the factors to be applied (known as the “Pon’s Factors”), the court concluded:

the judge concluded that none of the six Pon factors was satisfied and reiterated that the 2017 case weighed against sealing. With respect to the petitioner’s…claim of housing discrimination, we note that now that the charges against him have been dismissed, most landlords accessing his criminal record would not see these entries on his criminal record…[Thus] the judge did not err in finding that the petitioner failed to make out the prima facie showing necessary to require further inquiry.