Court records never really expunged

When former Lodi resident Coy Phelps was sent to a federal medical treatment center five years ago, his stay in the city had ended.

But he hasn't been forgotten by Lodi officials, who are battling a federal civil rights lawsuit he brought against the city and its Police Department last year.

Phelps, 70, alleges that, though a misdemeanor child molestation conviction from the 1980s was cleared from his record, police officers targeted him when he moved to Lodi.

They arrested him in 1999 for failing to register as a sex offender, and Phelps contends that his civil rights were violated when officers soon distributed fliers around his apartment complex, warning Lodi residents that he was a sexual predator.

That never should have been done, he said, because the original conviction was expunged from his record. When a record is expunged, the file is sealed and it is treated as though there was never a conviction.

However, legal experts said that doesn't mean the conviction is never seen again. If you want to apply for a law enforcement job, all records may be opened.

If you're applying for a state license, you must reveal prior convictions.

And some convictions, such as drunken driving and petty theft, can be used against you if you're arrested for the same crime.

According to his lawsuit against the city, Phelps pleaded no contest two decades ago to a misdemeanor count of lewd acts on a child. Ten years later, he petitioned the court to clear the conviction from his record and that request was granted.

However, California enacted Megan's Law in 1994, ordering that anyone convicted of sex offense dating back to 1944 must register with local law enforcement agencies.

"Even if you've had your charge expunged, you are still required to follow all of the requirements under the law, which is to register," said San Joaquin County Deputy District Attorney Brian Short, who oversees the Child Abuse and Sexual Assault unit.

Case background

Phelps, who writes his lengthy court filings from a North Carolina medical prison, also named the state and former U.S. Attorney General John Ashcroft in his lawsuit, though they were dismissed from the case earlier this year, said Sacramento-based Assistant U.S. Attorney Debora Luther.

In recent years, Phelps has filed a dozen lawsuits against the government, all of which have been dismissed, according to court filings.

Acting as his own attorney, Phelps regularly files lengthy court briefs. On page 9 of one such filing in the Lodi case, he cited "Murphy's Law."

His mental health status has been questioned for years, according to officials. In 1986, Phelps was arrested and charged with plotting to bomb San Francisco synagogues, according to federal appellate court records. A jury found him not guilty by reason of insanity, and Phelps was sent to a federal treatment center.

In 1992, doctors wrote that Phelps was "suffering from schizophrenia, residual type; antisocial personality disorder; and pedophilia," and had "delusions of paranoia and persecution, with very anti-Semitic and anti-black beliefs," according to federal court records.

He was released from custody in 1999, sent to live in Lodi, and there officers arrested him for failing to register as a sex offender.

Appellate courts later ruled that Phelps should not have been released from prison because of his mental health status, and he is currently being held in the Federal Medical Center, Butner, a North Carolina prison housing about 850 inmates.

While there, he filed his lawsuit, seeking an unspecified amount of money.

His filings against the city range from the civil rights issue to the original molestation conviction to the bombing case, which Phelps said was actually a conspiracy against him by U.S. officials and "secret agents of foreign governments."

Taxpayer dollars at work

The Phelps case has cost taxpayers more than $7,500, according to City Attorney Stephen Schwabauer.

It was being handled by the city until the City Council fired City Attorney Randy Hays in January and Schwabauer took over all of Lodi's legal matters, including a mammoth federal pollution case. Phelps' lawsuit was then turned over to an outside law firm.

The cost estimate doesn't include the latest filing Phelps served on the city, which outside attorney Paul Tozer said will take several hours of his time.

But Phelps raises an interesting question in his case against Lodi: If you've ever been convicted of a crime and then had the conviction wiped from your record, has it really disappeared from your record?

The answer, in a word, is no.

Having a record expunged "doesn't mean that there's no record; it just means that, in a certain formal sense, it's declared to be irrelevant or inaccessible," said John Sims, a professor at University of the Pacific's McGeorge School of Law.

In other words, it can't be used against you, and others can't see it.

When John Nobriga, owner of Lodi-based JMN Investigations, does background investigations for employers, he sometimes comes across court case numbers with no records attached. Though the case has been purged, the case number remains on the public microfiche containing lists of all records, he said.

There's nothing further he can do to see such a record. Plus, Nobriga said, unless it's a law enforcement job, employers may only do background checks for the past seven years.

Expungement exceptions

The main purpose for having a record purged is employment.

Suppose you were convicted for shoplifting years ago, then later went through a California court process that allows the conviction to be cleared from your record.

The conviction would be cleared, but the California Penal Code has some exceptions. For example, if you want to get a state-issued real estate license, you must disclose the theft conviction.

Moreover, even if you never applied for such a license and had never been asked about previous convictions, the information is still lurking out there, available to prosecutors and law enforcement officers.

"Expungement doesn't mean you weren't convicted," Short said.

Some convictions, such as petty theft and driving under the influence, can later be considered a prior offense. Even if a newly arrested drunken driver's previous conviction was cleared, prosecutors can use it seek a stiffer penalty for a second drunken driving offense.

What happened in Phelps' case remains somewhat murky, especially since court records weren't recorded on computers 20 years ago.

He is, however, still listed on the Lodi Police computer that allows the public to see sex offender information. Along with his picture and his conviction, the computer said he is in violation and has failed to update his registration since 2002.

However, that's understandable since Phelps sits several thousand miles away in North Carolina. There is no projected release day for Phelps who, according to prison records, is there for mental health treatment.

Contact reporter Layla Bohm at layla@lodinews.com.