The Challenge of Petitioning to Seal a Crime of Violence in Illinois

Before August 24, 2017, when someone asked me if their criminal record could be sealed, my answer was straightforward. As long the waiting period to seal had run out and the person had an eligible offense, my answer was usually an unequivocal “yes.”

Today, however, in light of the expanded list of sealable crimes, my answer now depends on the nature of the offense -- especially when it involves a crime of violence.

Second Chance Remedies Run Up Against Institutional Biases

Although most offenses are now technically eligible to seal in Illinois – a far cry from the way things were 10 years ago – the obstacles to sealing certain offenses loom large.

Under the expungement and sealing law, the State’s Attorney’s office has the right to object to a petition to seal. When the State objects, a court hearing is required where arguments for and against the petition are made to a judge. A judge makes the final decision. And, therein lies the problem: prosecutors play an outsized role in whether a petition gets granted.

But the State’s Attorney’s office has no idea what a petitioner has done with their life since the criminal case ended. Prosecutors tend to be skeptical of the idea that people can change for the better. Thus, the passage of time matters little. If the facts of the crime are particularly unsettling, the State’s Attorney describes them in painstaking detail.

Having specialized in criminal records relief for more than a decade, I know there are judges that don’t support the right to expunge or seal. Some don’t even bother to mask their contempt of the law. It is frustrating to think that the county where the crime occurred is often the most important factor in whether a petition will be granted.

Serious Offenses Routinely Face Objection

Since the start of this year, I’ve handled several sealing petitions involving serious offenses – murder, second-degree murder, conspiracy to commit murder, home invasion, and armed robbery. I knew these cases were not going to be easy to “win” but I thought a robust presentation of my client’s accomplishments would be enough to convince a judge to grant the petition. I was wrong.

Judges tend to deny these petitions on one of two grounds: 1) the violent nature of the offense (particularly where there’s been a loss of life), and/or 2) the totality of the petitioner’s criminal record.

Two of the cases I handled this year are emblematic of the challenges petitioners face when trying to seal a crime of violence -- offenses not eligible to seal prior to August 2017.

The Challenge of Sealing a Crime You Deny Committing

One of the most difficult cases I handled this year involved a client (I’ll call Pete) who was found guilty of a murder he did not commit in the mid-1990s. Pete had just turned 16 and lived in one of Chicago’s notorious housing projects. At that time the Gangster Disciples (GD) “ran” the projects where Pete lived and openly sold drugs on its premises.

Pete was not a member of the GDs. Nor, did he sell or use drugs. Like any teenage kid who already towered above his peers at more than six-feet tall, Pete spent much of his free time on the basketball court that were conveniently located in front of his building.

When gunshots rang out that fateful Saturday, Pete was playing basketball with his friends. He could tell by the way the gunshots echoed (this was not the first time he’d heard gunfire), that the shots were coming from behind his building.

The victim had driven to the projects to purchase drugs, something he’d done at least once before. No theory was ever advanced by the State explaining why the victim was murdered.

Eyewitnesses said that the shooter had braided hair, a distinctive feature. Even though Pete did not have braided hair, he was charged with the murder. Pete had never been convicted or adjudicated delinquent of a crime. The police did not know who he was. With no mugshot photo in its files, the police obtained a copy of Pete’s high school photo.

Pete never gave a statement to the police incriminating himself. To this day, he’s maintained his innocence. Pete went to trial. A jury found him guilty, based largely on the testimony of a relative of the victim, a teenage female, who was sitting in the victim’s car (parked down the street and facing away from the shooting) while holding an infant in her lap when gunfire erupted.      

Because there was no credible evidence that Pete was a gang member, the judge barred the State from claiming that Pete was gang affiliated at trial.

At trial, however, one of the State’s witnesses, a police officer, testified that Pete was a gang member. Instead of ruling a mistrial, the judge simply instructed the jury to ignore the police officer’s remarks. Pete was sentenced to 28 years, of which he was required to serve 14 years.

To Pete’s credit, he’s never let the conviction define him. He got his GED while awaiting trial in the county jail. After his release from prison, Pete, now 30, set to work on getting his plumber’s license. Today, Pete is a licensed, self-employed plumber. The murder conviction remains Pete’s only conviction.

An Objection Hearing is not the Place to Retry a Case

If a client tells me s/he did not commit the crime, I don’t tell a client to take responsibility for the crime anyway. It’s more than enough punishment that someone did time for another’s crime.

Acknowledging that a crime occurred while at the same time denying your client’s responsibility (for it) is akin to walking on a tightrope when you’re trying to get a criminal record sealed.

As expected, the State took great pains to describe in excruciating detail how the victim died. What I did not expect was for the State to repeatedly claim that Pete was a gang member.

During my argument (I was required to go first), I pointed out that Pete was not gang affiliated. And, if Pete was not a gang member, the State’s theory of the case (and Pete’s role in it) made no sense.

When I was given a chance to respond to the State’s argument, I reminded the judge that the State had been prohibited from claiming that my client was a gang member. The judge replied: “I’m not going to retry the case.”

In the end, it was clear that the judge never considered the possibility Pete might have been innocent. Why should she? A jury found him guilty, right?

If only our criminal justice system were infallible. Unfortunately, U.S. exoneration statistics tell a vastly different story. Since 1989, the National Registry of Exonerations has been tracking exoneration cases throughout the United States.

According to the registry (viewed on 9/16/22), 525 individuals have been exonerated in Illinois. Cook County leads the nation in the number of reported exonerations. By far, African Americans represent the largest group of Illinoisans who’ve had their cases overturned (80%).

Murder convictions represent the second largest category of exonerated crimes in Illinois (200) after drug offenses. The majority of Illinois murder exonerations come from Cook County (161). All but 53 of these defendants were found guilty by a jury. African Americans represent 75% of all murder convictions vacated in Cook County due to innocence.

Sometimes State Prosecutors Can Be Persuaded Not to Object

After three consecutive losses, I decided to put together a mitigation packet for my next client (I’ll call Margaret). I knew Margaret was going get an objection to her petition. When she was 18, Margaret (along with three others) participated in a home invasion. Two male victims were terrorized. Margaret pled guilty and was sentenced to 14 years in prison. She was required to serve seven years.

Before I started work on the packet I reached out to the State to make sure it was willing to review the mitigation packet with an open mind. Once I got a thumbs up, I got to work on it.

Like Pete, this was Margaret’s only conviction. It had been more than 20 years since the crime took place. Margaret’s list of accomplishments -- an uninterrupted work history (since her release from prison), numerous prison education certificates and post-prison college degrees (she’d recently received her bachelor’s degree) – was long and impressive.

Days before the hearing, the State notified me that it would not object to Margaret’s petition to seal. The judge did not know I’d filed a mitigation packet. He took a brief recess from the hearing to read it. When he returned to the bench he told Margaret that he’d planned to deny her petition. But after reading her mitigation packet the judge said that Margaret’s journey from domestic violence victim to convicted felon to a valued employee and married mother of two was inspiring. In his view, Margaret had earned the right to have her record sealed.

Parting Thoughts

What I’ve learned from my wins and losses is that hearing preparation is crucial when petitioning to seal a crime of violence. Not unlike a petition for clemency, you need to be prepared to share your client’s story, the good and the bad.

If the State is willing to consider a mitigation packet, it is worth the time to draft one – especially if the client’s accomplishments could persuade the State to withdraw its objection.

As for representing petitioners who are innocent, petitioning to seal is not an easy road to take. Judges aren’t interested in “retrying” cases. Unless judges are willing to entertain the possibility that someone was wrongfully convicted, their decisions will continue to rest more on the facts of the crime than on the petitioner’s post-conviction rehabilitation and accomplishments.  

Finally, because petitions to seal are always denied “without prejudice,” there is no limit on how many times someone can petition to seal or expunge their record.

Sometimes a judge will tell a petitioner that he/ she had filed their petition too soon, given the seriousness of the crime. When judges say that what they’re doing is telling the petitioner s/he should file another petition in a few years.