AK- Bill would clean files of false accusations

4-13-2009 Alaska:

ROTHACHER: He was cleared of charges but record follows him.

Down at the courthouse, available for the world to see, a folder filed under the name Cole Rothacher sits filled with allegations of a heinous, brutal rape that never happened.

Under current law, it will never disappear.

But some legislators, stirred by the case, are hoping to change that, at least for the next person falsely accused of a crime.

A House bill recently introduced would allow court and law enforcement records, including a state-run public safety database, to be expunged in cases such as Rothacher's.

Under the terms of the bill, records would be destroyed in cases with defendants who "beyond a reasonable doubt" are wrongly accused, either by mistaken identity or false accusations.

"Conceptually, it's the kind of thing we want to not do to people," Rep. Carl Gatto, a Republican member of the House Judiciary Committee who sponsored the bill, said of false criminal allegations. "Think about how you can destroy a person's life."

Among the ranks in favor of the legislation, which is unlikely to see action before the current legislation session ends April 19 but will remain on the table when the Legislature reconvenes in January, is the father of Rothacher, the Fort Richardson soldier whose case inspired it.

(eAdvocate Post)

Anybody can walk in the door and accuse you of something and get away with giving you a criminal record for life? It's just wrong," said Don Rothacher, reached in Oregon last week. "He's concerned about two things: If you seal his record, they'll always wonder what's in it. If it's expunged, then it's gone. There's nothing there to see."

But not everyone thinks wiping the slate clean is a good idea. The Anchorage Police Department says the bill would create more problems than it would solve.

If such information were purged from the state database, for example, police would have no way to pull complete information about the people they encounter, police Lt. Dave Parker said. Previous charges, even without convictions, can affect everything from sentencing to how police gauge a suspect's patterns, he said.

"We have to be cautious of a knee-jerk reaction to one incident," Parker said. "In fact, there was a charge made, and a person was arrested. That's historical record. There's no way that you can change that."

Rothacher's case made headlines back in January after his ex-fiancee, Elisa LaCroix, 20, called Anchorage police and reported she had been brutally raped. LaCroix, who was nearly nine months pregnant, gave police details of a heinous crime, saying Rothacher, 24, had held a knife to her while he raped her and punched her in the stomach, threatening to kill the child.

Rothacher, a military policeman who aspires to a career in law enforcement, was hit with sexual assault charges and spent nearly two weeks in jail before police concluded LaCroix's story was a fraud backed up by planted evidence. He was freed and LaCroix was charged with tampering with evidence and filing a false report.

After his release, Rothacher, who has since deployed to Afghanistan, said he feared being forever listed as a suspect in a rape case may have destroyed any chance of landing a job in law enforcement.

Under current law, a falsely accused person can have a law enforcement record sealed but not expunged. The information remains on file, concealed from the public, although it can still be accessed for certain reasons, including law enforcement agencies looking at potential employees.

Don Rothacher said he suspects an applicant to a law enforcement job who says on an application he had been arrested on rape charges would be passed over.

Alaska law already allows people whose records are sealed to deny the existence of the records, and the bill now under consideration in the state House Judiciary Committee would extend that to expungements, Gatto said.

"If you don't have it expunged, you have to say yes" on an application, he said. "And as soon as you do -- as soon as you do, there's nine other people that are just as qualified as you are, and they're just not going to take you."

Police, however, say that isn't the case. An application in Rothacher's case, for example, would note he had been charged with the crime but also say he was fully exonerated, and that fact would not count against him, Parker said.

"We have a record, and to change that record by expunging it will do no one any good in terms of hiring and that kind of thing, but also it hides stuff from investigators that we may need later on," Parker said. "In that bill it says 'destroy.' I don't think we should destroy anything."

Department of Public Safety spokeswoman Megan Peters said the department was reviewing the bill and didn't have an immediate comment.

Bill Oberly, executive director of the Alaska Innocence Project, said mistakes in the justice system need to be corrected and the bill is a good step to that end. That criminal records are historical documents is exactly why they should be rectified, he said.

"I think it's important to the integrity of the criminal justice system that errors be allowed to be corrected and not perpetuated," Oberly said. "It was a falsehood that the police correctly acted on -- they had to respond if somebody makes a complaint -- but once they found out that the person who was making the complaint was making a false complaint, then it's their obligation, I think, to take that record off and correct that mistake."

As written now, the bill would only apply to cases that take place after it is passed -- Rothacher wouldn't benefit from it, said Sandra Wilson, legislative aide to Gatto. But Gatto and Democratic Rep. Les Gara, who signed on last week as a co-sponsor, said they think the bill could be changed to allow it to be retroactive.

Gara said there are still a number of issues to deal with, but that the law should maintain its basic intent: to prevent innocent people from being permanently tainted.

"One of the problems here is that there's no perfect solution," Gara said. "You can't make the arrest disappear, which is what you'd like to do. It exists, and somebody has to say it exists. It might be that we can meld law enforcement's concerns into the solution by opting for a corrective statement instead of an expungement."

Gatto said his staff plans to continue ironing out details.

"We're going to be spending the interim and probably next session working on (it). There's got to be some kinks in this bill that we really want to be careful of," Gatto said. "We will hit the ground running in January." ..News Source.. by JAMES HALPIN