CS Training – Vacatur Nuts & Bolts
Nuts and bots of a Vacatur case
Vacatur law explained
What is the California vacatur law?
- The law allows for survivors who have been convicted of a non-violent offense while they were trafficked to have these records vacated
- The process of bringing this petition and clearing a record is called vacatur
- Vacatur clears a path to freedom for survivors of human trafficking
What is the California vacatur law?
- The law is codified at Penal Code 236.14 (and went into effect 1/1/2017)
- In simple(ish) terms: If a person was arrested for or convicted of any nonviolent offense committed while he or she was a victim of human trafficking, including, but not limited to, prostitution as described in subdivision (b) of Section 647, the person may petition the court for vacatur relief of his or her convictions and arrests under this section
What are the specific provisions of the vacatur law?
- Arrests or convictions while a victim of HT
-Who is a victim of human trafficking? (see PC 236.1(a)(b)(c))
- Minors performing commercial sex acts
- Forced labor/services (not limited to sex acts)
- Adults manipulated into performing commercial sex acts
-Arrests/convictions while a victim
- Not limited to convictions
- Must occur while a victim, not before/after victimization (victim includes grooming period and during attempts to leave the life)
- Non-violent offenses
-Any offense NOT listed in PC 667.6
-All misdemeanors are non-violent
-Most felonies are non-violent
-Can still petition for any other offenses on client’s record (meaning client is not precluded if he/she has violent felony, just that arrest/conviction is precluded)
- Committed as a direct result of being a HT victim
-Nexus requirement: committed as a direct result of being a victim
-Limited only by your creativity
-Direct result is not read “directed by”
-Not just prostitution, think drug offenses and theft
-Standard of proof is clear and convincing evidence
- Good faith effort to distance from the life
-Consider best interest of petitioner and in interests of justice
-Good faith effort can include moving, participating in counseling, assisting in prosecution of victimizer, obtaining legal employment, attending school, staying out of trouble
What are other considerations relevant to the law?
- Burden of proof: on the petitioner by clear and convincing evidence
-Timing: due diligence
-A petition shall be made and heard within a reasonable time after the person has ceased to be a victim of human trafficking, or within a reasonable time after the petitioner has sought services for being a victim of human trafficking, whichever occurs later, subject to reasonable concerns for the safety of the petitioner, family members of the petitioner, or other victims of human trafficking who may be jeopardized by the bringing of the application or for other reasons consistent with the purposes of this section
- Jurisdiction: anything goes if everyone agrees
What is the role of the prosecuting agency?
- Must be served
- 45 days to respond
- If no opposition, court shall deem petition unopposed and may grant petition
- Factors to be considered by prosecuting agencies
-Nexus: theft may need more explanation than drug possession
-Good faith attempt to get out of life includes turning victim into survivor into thriver, also includes length of time since last offense
-Names of traffickers to verify their criminal activity
-Whether restitution, if ordered, has been paid, and will seek victim input if Marsy’s Law is implicated
-Is client also a victimizer?
- Practice tip: When you serve the prosecutor, add a form that says if you plan to object, please send back this form
What are the results if a vacatur petition is granted?
- Sealing and destroying of all records, including:
-$$$ (except restitution)
-DNA profile destroyed
Why is the vacatur law/process so important for survivors?
- Remedy past injustice
- Survivor controlled
- Opportunity to reclaim space/tell story
- Impact on criminal justice system stakeholders (judges, prosecutors, court personnel)
The Steps of a vacatur case
Before pro bono involvement…
- Clients will always have met with Clean Slate staff at Bet Tzedek prior to them being referred out to a pro bono team
- All relevant conflict checks will be completed
- All necessary authorizations and releases will be signed
- Clients will have completed a brief intake and assessment with Clean Slate staff and that information will be provided to you
Part 1: Introductions and Intake
Trauma Training and Conducting an Intake
- We will cover this later today!
Reading a RAP Sheet
- Survivors who have been arrested might not remember all their arrests or details surrounding arrests, might have open warrants, and/or might not know exactly what appears on their criminal record – so the first step is often to get the client’s criminal record
- You may need to request some (or all) of the following:
-FBI background check
-California DOJ criminal record history
-File(s) from Public Defender
- Information to note:
-Offense (code and section)
-Court where convicted
-Probation period complete?
RAP Sheet Exercise
- Pass out one packet per pro bono team. Attorneys will practice reading the sample RAP sheets provided and answer the accompanying questions.
- Following the small group work, we will have a facilitated large group conversation.
Part 2: Preparing and Filing the Petition
- Preparing and filing the petition includes:
-Meeting 2-3 times to draft the client’s declaration
-Writing the petition
-Collecting and assembling any supplemental exhibits or materials
-Going to the courthouse to file the petition
- What will the papers include?
-Petition (including legal P&A’s why client is entitled to the relief)
- Declarations are client statements that present legally relevant facts to demonstrate entitlement to the legal relief requested
- For these discretionary petitions especially, declarations are key advocacy tools
- A stipulated petition should include a declaration from the client that states the 4 prongs of the vacatur law:
-I was a victim of human trafficking at the time the crime(s) was/were committed,
-the commission of the crime(s) was a direct result of being a victim of human trafficking,
-I am engaged in a good faith effort to distance myself from the human trafficking scheme,
-and it is in my best interest and in the interests of justice to grant this petition.
- Tips for helping the client with her declaration:
-Create a chronology/timeline
-Known anchor dates (birth of children, important milestone, etc)
-Get police reports and/or copies of court records (and then fill in client narrative)
-Give the client as much control over the process as possible
-Avoid absolute words: always, never, every, completely, unique, perfect, exactly, constantly
- Possible headings to help guide the process:
-Travel to the United States (if relevant)
-Cooperation with Law Enforcement (if relevant)
-Fear of Return
- Interview process should empower clients to speak freely, but keep in mind that trafficking victims often have difficulty articulating trafficking-related facts and focus on facts not always relevant to trafficking
- Minimize re-traumatization by including only relevant (not just compelling) facts
-Avoid gratuitous detail that may be re-traumatizing as the declaration process itself is already re-traumatizing
-Victims can sometimes focus on facts that are horrific but not germane to the trafficking
- Should be in client’s own words, should not sound like an attorney
-Use the client’s own words to the extent possible, but the framework of the declaration should be constructed by the attorney
- Avoid credibility issues by making sure that all information stated in the filing is consistent and that the declaration is not contradicted by a cover letter or other information submitted to the court
-If a client does not remember a fact just say so
-Address difficult facts and provide explanation/context
- Documents/records that can corroborate the narrative
- Medical records
- Letters of support from therapists/counselors/case managers
- Court/arrest documents of trafficker
- USCIS Notices of Approval
- Affidavits from witnesses
- Employment rejection letters
- School records/employment records
- Letters from family
- Certificates: completion of job programs, trainings, educational programs
What is “official documentation” and does the filing require it?
- “Official documentation”
-Official documentation of a petitioner’s status as a victim of human trafficking may be introduced as evidence that his or her participation in the offense was the result of his or her status as a victim of human trafficking
-Means any documentation issued by a federal, state, or local agency that tends to show the petitioner’s status as a victim of human trafficking
-Shall not be required for the issuance of an order
-Even without documentation or corroboration, can sustain burden on client’s sworn statement alone (See, e.g. People v. Gonzalez, 32 Misc.3d 831 (NY. Co. Crim. Ct. 2011))
Sample Declaration Exercise
- Teams will review sample declarations and make recommendations for follow-up questions and points of clarifications as well as suggested ideas for corroborating exhibits.
Part 3: The Hearing
- The hearing includes:
-Contacting the appropriate opposing party to secure confirmation that the petition is unopposed
-Preparing the client for the hearing
-Attending the hearing with the client
- The court may permit video or telephonic appearances
- If the petition is granted, it is important to follow up with appropriate agencies to ensure that the client’s records are actually vacated
Issues to Consider
- Old convictions where corroborating evidence is difficult to gather
- Non-citizen clients
- Convictions after defendant has physically escaped trafficker
- Clients under the age of 21 currently receiving extended foster care benefits
- Clients with arrest histories in multiple counties/states (consolidation)
- Clients with outstanding/open warrants
Potential Client Concerns and Questions
- How long will this take?
- Will I have to appear in court/testify?
- Is my information public? Will anyone know I filed this motion?
- What happens if we win? If we lose?