Protecting Your Criminal History In A World of Misinformation

By Tab E. Lawhorn

Last year, I authored an article on how criminal background checks are used and what you can do to make sure yours is as clean as possible. One of the aspects of that article mentioned how third party data collection companies are profiting from selling background checks on individuals to employers, apartment managers, dating sites, and even schools.

Recently, I challenged an old arrest for a client of mine that was unique for one reason: even after getting a signed order from a judge removing the arrest, the old arrest still continued to appear on her criminal history. Not to be defeated, I challenged the Texas Department of Public Safety to properly remove the arrest according to the judge’s order. To my surprise, the TDPS explained that the arrest, in fact, was properly removed from the records of TDPS.

So why was the employer background check still showing an old arrest on my client’s criminal history? The results of my investigation were quite shocking.

The Texas Department of Public Safety, along with many other states, actually sell your information to third party data collection companies. These companies pay a hefty premium to offer “name” based background searches to anyone willing to pay their fee. No new news here. The problem is that if the database that was purchased is an old one, that is, if it doesn’t reflect any new changes to your criminal history, the third party company only has the rights to publish the old criminal history (unless they pay TDPS another fee for an updated database).

TDPS does send orders that expunge or make old arrests/convictions non-disclosable to these third party companies, but it usually takes months or even years for the companies to update their records on their own.

Even more alarming is that if these companies have sold their databases to other companies, there is no guarantee that they have forwarded any orders from the court or DPS to those purchasing companies.

The best way to ensure that an old arrest or conviction is removed from these subsequent third party data collection agencies is to send them each a certified copy of the court’s order directly, either from the clerk’s office or from your attorney’s office. Although it is time consuming and a little more costly, it is the most effective way to clean up your criminal history.

Tab Lawhorn is a criminal lawyer and partner at Derryberry Zips Wade Lawhorn, PLLC.  He lives in Tyler, Texas with his wife Zoe, his two loving dogs, Noodle and Fathead, and Mancat, his not-so-loving cat.  For a decade, he has fought for the rights of those individuals who have needed to clear up their past from criminal arrests and convictions.  He has carried his briefcase into courts from Los Angeles, California to Ben Wheeler, Texas (Population-400)–ensuring that people have clean records so they can live their lives accordingly.  He has founded YOURENOTGUILTY.COM and has been an active donor and community volunteer in East Texas ever since.

Bard Settles Second Bellweather Vaginal Mesh Case

Bard settles second bellwether mesh case after plaintiff verdict in first trial

By Courtney L. Davenport

Following a plaintiff verdict in the first transvaginal mesh bellwether trial in a federal MDL against C.R. Bard, Inc., the device maker settled the second bellwether case shortly after jury selection. About 4,400 suits are pending in that MDL, and about 25,400 federal suits are pending in MDLs against other mesh manufacturers. (In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187 (S.D. W. Va. Aug. 23, 2013).)

Last month, a jury awarded Donna Cisson and her husband $2 million, including $1.75 million in punitive damages, against Bard after transvaginal mesh implanted to treat pelvic organ prolapse (POP) eroded, causing bleeding, pain during intercourse, and bladder spasms and requiring additional surgeries. The Cissons alleged Bard defectively designed the mesh and failed to warn doctors when it learned of the risks.

Less than two weeks later, Bard settled with Wanda Queen and her husband for an undisclosed amount. Queen’s specific injuries were not disclosed in the complaint, but attorneys said that despite six corrective surgeries, her injuries are permanent.

Harry Bell of Charleston, W. Va., coliaison counsel in the MDLs, said the Cisson verdict may have prompted Bard to settle with the Queens because Queen’s case was even more egregious. But he does not know what impact the positive resolutions will have on the two remaining bellwether suits or the other MDL plaintiffs.

“From the perspective of the manufacturer, how’s it going to look to the public to have two adverse verdicts back to back and with the verdict amounts increasing? They made the decision they couldn’t take that risk,” he said. “Whether Bard makes the decision to settle [the others], one never knows. Bard has to be considering settlement considering the cases it is losing.”

Transvaginal mesh is surgically implanted in the vagina or abdomen to treat POP—in which the bladder, bowel, or other pelvic organs protrude into the vagina—and stress urinary incontinence. But shortly after it became popular in the late 2000s—in 2010 alone, mesh was implanted in 300,000 women—the FDA started receiving reports of serious injury when the mesh eroded, scraping tissue and protruding into the vagina or other organs, causing chronic pain, incontinence, infection, pain during intercourse, and other problems. Sufferers often require multiple surgeries to remove all of it. In 2011, the FDA warned that serious complications are “not rare” and advised that transvaginal mesh should not be used to treat POP, because it had not proved to be more effective than safer alternatives.

Thousands of mesh recipients and their families sued Bard; Johnson & Johnson subsidiary Ethicon, Inc.; American Medical Systems, Inc.; Boston Scientific Corp.; Coloplast Corp.; and Cook Medical, Inc. The suits allege the manufacturers did not test the defectively designed mesh before putting it on the market, nor did they properly train physicians. Federal MDLs were established against each defendant. State lawsuits are also pending against many of them, and at least two plaintiffs have obtained jury verdicts.

In July 2012, a California state court jury awarded Christine Scott—who suffers fecal incontinence and chronic pain and cannot have sexual relations after mesh eroded into her colon and vagina—and her husband $3.61 million against Bard. (Scott v. C.R. Bard, Inc., No. S-1500-CV-266034 (Cal., Kern Co. Super. July 24, 2012).) Earlier this year, a New Jersey court jury awarded Linda Gross and her husband $11.11 million against Ethicon. Gross underwent 18 surgeries to remove eroded mesh and permanently suffers such severe pain in her legs and pelvis that she cannot sit comfortably, be active for more than a few minutes, or have sexual intercourse. (Gross v. Ethicon, Inc., No. Atla-L-6966-10 (N.J., Atlantic Co. Super. Feb. 25, 2013).)

Bard asked that the court stay the other bellwether trials or certify an interlocutory appeal of an order in Cisson that excluded evidence of the FDA 510(k) device-approval process and the FDA’s decision not to recall Bard’s mesh devices. The judge has denied the request, holding that “I remain unconvinced that Bard is likely to succeed on the merits of any appeal related to the 510(k) issue” and that Bard will not be irreparably injured by waiting for the outcome of the remaining bellwether trials, the first of which is set to begin Oct. 8.

JUVENILE LAW

The Basics Every Parent Should Know.

(Some text forwarded from a State sponsored website.)

Juvenile cases may include charges that a child is delinquent, dependent, or in need of supervision. A delinquent child is a one who has committed an offense which, if that child were an adult, would be considered a crime. A dependent child is a one who is orphaned, neglected, or abused and in need of care. A Child in need of supervision (CHINS) is one who committed an act which, if the child was an adult, would not be classified as a crime, but is in need of care or rehabilitation. A child in need of supervision may be habitually truant, disobedient to his parents, or a runaway. A serious juvenile offender is a child adjudicated to be delinquent and the delinquent acts charged in the petition would be similar to an adult committing a Class A felony, a felony resulting in serious physical injury, or a felony involving physical force, a deadly weapon, or a dangerous instrument. A child adjudicated to be a serious juvenile offender must be committed to the Department of Youth Services for a minimum of one year. A multiple needs child is one coming to the court’s attention who is at risk of being placed in a more restrictive environment because of emotional or mental problems, dependency, delinquency, or alcohol or drug dependency and whose needs require the services of two or more state agencies. These children are referred by the court to the county children’s services facilitation team for evaluation and recommended service plan. The court may accept or modify the service plan if the court determines it is in the best interest of the child to do so and order the provision of the services.

How do Juvenile Cases Get Filed?

An individual, including a law enforcement officer, a parent, a relative, or a neighbor, who has knowledge that a juvenile has committed a delinquent act, is in need of supervision, or independent, may file a complaint with the juvenile court. A juvenile intake officer will review the complaint to ensure that it is sufficient and that the court has venue and jurisdiction and will decide whether a normal petition will be filed with the court. The intake officer will notify the parents of the child’s detention and advise the child and parents of their rights, including the right to have an attorney present at all proceedings.

One of the most important decisions made by the intake officer is whether or not a child should be released to the custody of the parents or placed in a licensed juvenile detention facility or, in the case of dependency and CHINS cases, placed in the care of the Department of Human Resources under what is termed “shelter care.” Any time a child is detained, a hearing must be held within 72 hours in order that the juvenile judge can determine whether the child should remain in detention or in shelter care or be released into the custody of the parents.

Juveniles committing certain minor and first-time offenses may be handled without judicial action. The intake officer may withhold the filing of a formal delinquency or CHINS petition, and may attempt, with the consent of the child and the parents, to make a satisfactory informal adjustment. Under an informal adjustment, the child and the parents voluntarily agree to abide by conditions established by the intake officer. Such conditions may include counseling, curfew, required attendance at school, or other reasonable conditions. The informal adjustment process cannot continue beyond a period of six months. If the juvenile and the parents abide by the terms of the informal adjustment agreement, no petition will be filed and the charges against the child will be dismissed. If the juvenile or the parents violate the agreement of the informal adjustment, the intake officer may proceed with the filing of a formal petition.

Once the petition is filed, the juvenile case will be set for trial, which, in the juvenile court, is called an adjudication hearing. At any time after the filing of a petition in a delinquency or a need of supervision case and before the holding of the adjudication hearing, the juvenile case may be handled by a consent decree. The consent decree is an agreement between the youth, the parents or guardians, and the judge. Under a consent decree, the proceedings of the court are suspended and the juvenile is placed on probation in accordance with terms and conditions agreed upon by all parties. If the juvenile complies with all conditions of the consent decree, the petition will be discharged. If the juvenile fails to abide by the terms and conditions of the decree, the petition will be reinstated and the case will proceed to adjudication.

The Adjudication Hearing

All juvenile proceedings are confidential, and juvenile trials or adjudication hearings are heard by a judge without a jury. The hearing is closed to the public. Present at the hearing will be the juvenile, the defense attorney, parents or guardians, the district attorney who will represent the state, the victim(s) of the crime, the juvenile probation of officer, and, in dependency cases, a representative of the Department of Human Resources.  At the adjudication hearing, the judge will explain to the parties their rights, the substance of the petition and the specific allegations, the nature of the adjudication hearing, and the alternatives that are available to the court should the allegations be admitted or proven. The court will then inquire of the juvenile whether he or she admits or denies all or some of the allegations contained in the petition. An admission of the allegations is similar to a plea of “guilty” in adult court; a denial of the allegations is similar to a plea of “not guilty.” If a juvenile fails or refuses to admit any of the allegations, the judge will enter a denial.

If the juvenile denies the allegations of the petition, the hearing will continue and the testimony of witnesses will be taken. The procedures for conducting the adjudication hearing are similar to those of a civil bench trial, that is, a trial by a judge without a jury.

At the close of the hearing, the court shall find that either (1) the facts alleged in the petition are true and the child is dependent, in need of supervision, or delinquent and in need of care or rehabilitation or (2) the facts alleged in the petition are not true and the child is not in need of care or rehabilitation, in which event, the petition must be dismissed.

The Disposition Hearing

Following the adjudication hearing, the court will hold a disposition hearing which may be conducted immediately or held at a later date. In delinquency and CHINS cases, the court can transfer legal custody, require public service, place the youth on probation, and/or require restitution. In delinquency cases, the youth may be committed to the Department of Youth Services. The period of time a youth is required to stay with the Department of Youth Services is determined by the department and not by the judge.

Where a child has been found dependent, the court will address the issue of the custody of the child and whether or not the child’s custody should be placed with the parents or with other guardians, or whether the child should be made a ward of the state. In those cases where the custody of the child is removed from the parents, hearings will be held periodically to review the custody issue. This process of judicial review will continue until the child is returned to the custody of the parents, until parental rights are terminated and permanent placement is made, or until the child reaches 21 years of age.

The juvenile court may at any point in the proceedings, make parents or guardians parties in juvenile cases and require the parent or guardian to perform reasonable acts necessary to promote the best interests of the child, such as attending counseling sessions or submitting to random drug screens.

Transfer to Criminal Courts

When a child 14 years of age or older commits an act which would constitute a crime if it were committed by an adult, the district attorney may petition the juvenile court to transfer the youth to the adult court for criminal prosecution.

When a petition for transfer is filed, the juvenile court conducts a hearing to determine whether it is in the best interest of the youth or the public to grant a motion to transfer. If, after hearing all the evidence, the court finds that there are reasonable grounds to believe that the allegations against the youth are true and correct, and further finds that the youth is not amenable to the services provided through the juvenile court, the court may grant the motion to transfer the case.

A conviction or youthful offender adjudication of a child transferred and tried as an adult terminates the jurisdiction of the juvenile court over pending and future offenses. This is referred to as “once transferred, and convicted, always transferred.”

Appeals

Any aggrieved party, including the state or any subdivision of the state (except in criminal cases, delinquency cases, and CHINS cases), may appeal a decision of the juvenile court. An appeal from the juvenile court is taken to one of the two intermediate appellate courts if there is an adequate record or if the parties stipulate that only questions of law are involved. In cases involving minors or adults, the right to a trial by jury must be waived before an appeal can be made directly to the intermediate appellate courts. If these qualifications are not met, the appeal must be taken to the circuit court where the case will be heard de novo.

Appeals are filed in the Texas Court of Criminal Appeals in those cases where a child is adjudicated delinquent or where a motion seeking to transfer a child to the criminal court has been granted. All other cases involving children, including CHINS and dependency cases, are appealed to the Texas Court of Civil Appeals.

 Jurisdiction and Exceptions

Juveniles 16 years of age or older who are charged with a capital offense, a Class A felony, a felony which has as an element the use of a deadly weapon or causing the death or serious physical injury of another or a felony using a dangerous instrument against certain officials, or trafficking in drugs are expressly excluded from the jurisdiction of the juvenile court. These juveniles must be tried as adults and, if convicted, may not be tried as juveniles for any subsequent offenses.

Venue in Juvenile Cases

In delinquency and in need of supervision cases, the proceedings are held in the county where the acts constituting the alleged offense occurred. In dependency cases, however, the proceedings are held in the county where the child resides or in the county where the child was present when the proceedings began.

Cases involving Minors and Adults in the Juvenile Court

The Juvenile court primarily exercises jurisdiction over children. However, in some instances, minors and adults may come under the jurisdiction of the court. For purposes of determining the juvenile courts jurisdiction an adult is defined as an individual 19 years of age or older. A minor is an individual who is under the age of 19 who is not a “child,” i.e., an 18 year old. Cases involving minors and adults include charges that a minor or adult contributed to the delinquency, dependency, or need of supervision of a child; proceedings to establish paternity of a child; charges of desertion and non-support; and proceedings for the commitment of a mentally ill or retarded minor. The court, after making a preliminary investigation, may try to resolve the issues through informal adjustment, without prosecution. If the issue cannot be resolved informally, the case would be tried in the same manner as any similar case in an adult court, but without a jury.

Tab Lawhorn is a criminal lawyer and partner at Derryberry Zips Wade Lawhorn, PLLC.  He lives in Tyler, Texas with his wife Zoe, his two loving dogs, Noodle and Fathead, and Mancat, his not-so-loving cat.  For a decade, he has fought for the rights of those juveniles who have been wrongfully accused of criminal activity.  He has founded YOURENOTGUILTY.COM and has been an active donor and community volunteer in East Texas ever since.

FEDERAL DRUG CHARGES, CONSPIRACY, AND GUN CHARGES

Dealing with the Federal Government.

By Tab Lawhorn, Member of Derryberry Zips Wade Lawhorn, PLLC

A rule of thumb with federal drug crimes is that if you have been contacted by the FBI then you have been the target of an investigation for at least a year.　Drug crimes can be violations of both state and federal law.　 When the US government is prosecuting a drug case, they will not only use the DEA and FBI to investigate the crime, they can also work with state and local law enforcement agencies to gather evidence of a drug conspiracy.  It would not be unusual for the ATF or DPS to aid an ongoing federal investigation.  For instance, a simple traffic stop by a state trooper could result in a drug seizure that could be included in a federal investigation.

I am often asked why double jeopardy doesn’t prohibit the federal government for prosecuting the same conduct that would be punishable under state law.  It’s a good question.  However, because the federal government is a separate and distinct jurisdiction from the state, then defendants can be prosecuted (and punished) under both state and federal law for drug crimes without violating double jeopardy.

Conspiracy is one of the most powerful tools that the US attorney has to prosecute crimes.　If you are charged with a drug conspiracy in federal court, this means that you are not only responsible for the drugs you allegedly possessed, but you are also responsible for the drugs that other co-conspirators possessed(even if it is someone you never met).　 The result can make a defendants guideline range for punishment astronomical. Conspiracy counts usually show up as Count 1 in a federal indictment with multiple co-defendants.  It is number one for a reason.

Gun crimes in federal court can complicate even the simplest of drug cases.　Many times a drug crime also involves a weapon.　Depending on the use of the gun and the status of the defendant, federal law imposes strict prison time minimums that can even be imposed consecutively (stacked) to any time received on the drug charges.

All is not lost if you are facing one or any combination of these charges.　Although the federal system can seem more complicated, it’s not.　In fact, the thoroughness of a federal drug investigation sometimes presents more opportunities to defend someone from the charges.　 The Federal Sentencing Guidelines leave little to the imagination of the court or prosecutors such that there are uniform punishment ranges regardless of the court, defendant, or venue.　 The key to surviving these guidelines is using a lawyer that is highly proficient in using the evidence and the guidelines to your maximum advantage.

Tab Lawhorn is a criminal lawyer and partner at Derryberry Zips Wade Lawhorn, PLLC.  He lives in Tyler, Texas with his wife Zoe, his two loving dogs, Noodle and Fathead, and Mancat, his not-so-loving cat.  For a decade, he has fought for the rights of those individuals who have been wrongfully accused of federal drug crimes, conspiracy, and federal gun charges. He has founded YOURENOTGUILTY.COM and has been an active donor and community volunteer in East Texas ever since.

Is My Old Criminal Case Going To Show Up In A Background Check?

Background Checks: Digging Up Your Past, Present, and Future.

By Tab Lawhorn, Member of Derryberry Zips Wade Lawhorn, PLLC

When I was a young aspiring lawyer, one of my first clients came into my tiny office and told me that she couldn’t get a college scholarship because she had an old criminal case on her record.  It took some time, but eventually, we were able to get her old conviction removed from her record.  She was granted the scholarship.  Now, she is a pediatrician in south Texas.  Since those humble beginnings, I expanded my office space, and also my abilities to match those of the public need.  Background checks can send chills up the spine of a potential employee, future graduate student, or even someone that simply wants to rent an apartment.

In today’s work place, some employees face constant anxiety over criminal background checks.

I have heard countless stories from friends and clients that all express a severe anxiety about what a criminal background check might reveal about them.  If you have a concern about your criminal past, you’re not alone.  Here is the basic information I have been handing those in need for years:

1.  The internet has changed the game for criminal background checks.

It is virtually impossible to completely remove an old arrest or conviction from your search results on the internet.  You can thank third party data collection companies for this.  However, with the right lawyer, you can make a difference in what information is provided on a Google search for you.  For instance, a lawyer can remove your old conviction or arrest from the local and state agencies that collect this data if you qualify.  However, if the Possum Trot Gazette wrote an article on your arrest that shows up in

Apartments, employers, and even college applications request information to perform a criminal background check. These background checks are often times linked to local and state date collection services.

their archived on-line data base, then that still might show up.  It’s a problem no doubt.  Our firm always makes an effort to send an order from the court to remove reference to your arrest or conviction to those agencies and sources that are reporting your untimely arrest or conviction.  So the question becomes:  If I can’t totally erase my criminal past from the internet, why bother hiring a lawyer to get it removed from my record?  The answer is simple:  Because employers, colleges, apartments, and other entities typically use a background check that is connected to data gathered from the local clerks office or the department of public safety.  Remove your criminal case from those databases, and you should be on your way to clean living, in an application sense.

2.  If you qualify, you can change your criminal history.

Qualification isn’t half the battle, it’s the whole enchilada.  The age, type, sentence, and other criminal cases you have can all effect whether or not you are qualified to have a lawyer remove something from your record.  If you call a qualified lawyer with the experience of drafting expungements or motions for non-disclosure, they will quickly be able to tell you if you meet the requirements under the statutes that govern your old case.  Sure it’s embarassing.  But the right attorney will put your mind at ease once you answer a few basic questions.  If you don’t feel comfortable talking with an attorney, then send the answers to the following questions to my form on my website here:

• What was your arrest?
• When were you arrested?
• Did you get a conviction?
• Did you plead guilty?
• Did you receive probation?
• Did you receive deferred adjudication?
• Did you successfully complete your probation/deferred adudication?
• When was the last day of your probation?
• Have you had any criminal cases sense the last day of probation of the criminal case you desire to remove?

If you send me the answers to those questions, I will respond to you with a basic answer on whether you qualify, or not, to have your record clean of that criminal case.

3.  You need a qualified attorney to assist you in changing your criminal history.

Please don’t assume that because this article is simple, that there is a simple remedy to removing something from your criminal record.  If you have ever had to try to remove something from your credit report then you know that this is much more complex.  This is why you will need an experienced attorney to assist you with the process.  Furthermore, you will need the advise of a competent attorney in order to prepare the documents necessary to approach the court in seeing that you can get the relief you seek.  Don’t be discouraged.  Stay committed to keeping your record clean, and you will no longer feel any anxiety about a criminal background check.  You’re credit report might be a different story, but hey, that’s for another article altogether.

Tab Lawhorn is a criminal lawyer and partner at Derryberry Zips Wade Lawhorn, PLLC.  He lives in Tyler, Texas with his wife Zoe, his two loving dogs, Noodle and Fathead, and Mancat, his not-so-loving cat.  For a decade, he has fought for the rights of those individuals who have needed to clear up their past from criminal arrests and convictions.  He has carried his briefcase into courts from Los Angeles, California to Ben Wheeler, Texas (Population-400)–ensuring that people have clean records so they can live their lives accordingly.  He has founded YOURENOTGUILTY.COM and has been an active donor and community volunteer in East Texas ever since.