EagleTribune.com, North Andover, MA

December 6, 2009

NH lawmakers may consider changes to annulled records law

Resignation of Rockingham sheriff prompts review

By Jarret Bencks

More than 4,000 people had their arrest records wiped clean in New Hampshire last year. Once someone's record has been annulled, anyone who mentions it could be charged with a misdemeanor themselves, under New Hampshire law.

The state has rarely, if ever, prosecuted someone for divulging an annulled record. But last month, Rockingham County Sheriff Dan Linehan and Maj. Mark Peirce resigned in order to avoid prosecution for doing just that.

An investigation by the Attorney General's Office revealed the two top ranking members of the county sheriff's department leaked information to two newspapers about the annulled record of David Lovejoy, who was running against Linehan for sheriff at the time.

Peirce directed information be leaked to Electra Alessio, publisher of the Carriage Towne News, according to Attorney General Michael Delaney. The Carriage Towne News is owned by Community Newspaper Holdings Inc., the same company that owns The Eagle-Tribune. The information also was sent to Karen Dandurant, then a reporter at the Portsmouth Herald.

The Portsmouth Herald published a story Oct. 27, 2008, outlining Lovejoy's conviction for simple assault in 1989, a conviction that was later annulled.

The Attorney General's Office investigated a complaint that the sheriff's office was the source of the leak. Upon completion of the investigation, Delaney agreed not to prosecute Linehan or Peirce in exchange for their immediate resignations. They resigned Nov. 24.

Shortly thereafter, Lovejoy sued Linehan, Peirce, Dandurant and the county. He is seeking $250,000 apiece from Linehan and Peirce.

Lovejoy's court filings include a copy of Dandurant's story, which reported Lovejoy was convicted of simple assault in 1989. Lovejoy said the conviction stemmed from spousal abuse his wife alleged during divorce proceedings, according to the story. He said the charges were later thrown out by a judge.

Lovejoy alleges Linehan, Peirce and Dandurant broke the state law prohibiting disclosure of an annulled record. State prosecutors believed that Linehan and Peirce could have been convicted of a misdemeanor, according to a statement from Delaney.

Cases of leaked information about annulled arrests are seldom investigated by state prosecutors, according to Associate Attorney General Ann Rice.

"In my 19 years, it's the first time," Rice said. "I can't recall any previous situations."

The case has put the law on front pages and in lawmakers' minds.

Lawmakers, others question the law

Media outlets often publish police logs and court indictment lists online, and most cases that information stays afloat in cyberspace, even if it is annulled by a judge. The Web-based information makes it nearly impossible to erase what has already has been made public.

"Someone could have a newspaper article on them, talking about a conviction, and five years later have it annulled. But if you Google the name, guess what is still up there?" said Chuck Temple, director of Pierce Law Criminal Practice Clinic. "The Web age we are in is already causing problems with convictions that are annulled. People are finding them (annulled arrests) through other means."

Lovejoy's conviction was annulled well before media sources began to put their content on the Internet. But if someone had an arrest annulled more recently, a leak wouldn't be necessary for the public to discover it.

"The state is supposed to take the appropriate steps to only keep it for specific purposes," Temple said. "I don't know how you could possibly handle procedures to get Web sites to take it off."

From July 1, 2008, to June 30, 2009, 4,055 arrest annulments were granted in the state; 304 petitions for annulments were denied. More than 93 percent of the annulments requested were granted. This year, from July to the present, 1,455 annulments have been granted and 109 denied, according to Jeff Kellett, chief administrator of the state police criminal records unit.

Kellett's office deletes the annulled arrests from state police records and notifies the FBI to remove annulments from their files. The records are maintained by courts, but are sealed, Kellett said. More than 93 percent of the people who asked to have a criminal record annulled were granted one.

Most states have laws similar to New Hampshire's, Temple said.

Some media representatives and some lawmakers think it's time to take a hard look at New Hampshire's law.

Rep. Jim Splaine, D-Portsmouth, has submitted a bill seeking the formation of a commission to study the state's annulment statute. As proposed, the commission would study three particular issues: the history of the state's annulment law, whether the application affects the media's ability to report and how the law is affected by the Internet.

The commission also would consider whether the public should have the right to know the criminal history of someone running for public office, Splaine said.

"To protect privacy, we need the law," Splaine said. "But at the same time, there is a public's right to know, and there is a freedom of the media."

The bill calls for a 12-member commission that would include elected officials, lawyers, and members of the New Hampshire Press Association and New Hampshire Association of Broadcasters.

Splaine said the decision to ask for the commission was not related to the current situation between Lovejoy and Linehan. Changes to the law wouldn't go into effect until at least 2011, and wouldn't have any bearing on the current situation, he said.

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Who can request a record be annulled?

Anyone who has been found not guilty of a crime can petition to have the related arrest annulled.

Anyone convicted of a crime who has completed his sentence and been legally clear for a certain period of time. A person must wait between one and 10 years to ask for an annulment, depending on the severity of the crime.

When are annulled convictions used?

Annulled convictions can be taken into consideration during sentencing if the person is convicted of another crime later.

They can be used by police, when a person is going through law enforcement training or for investigative purposes.