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Investigator: Angry judge threatens clerk with contempt

5:59 PM, Sep 23, 2013   |    comments
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Starting a year ago, criminals in Ohio were allowed to get one non-violent felony expunged -- assuming they didn't have any other felonies.

A $50 filing fee is waived if the person claims indigence. The clerk of courts wants to make sure judges note if they are indigent. Otherwise, she aims to collect that fee. The chief judge says it's beyond her duties to even raise the question.

More and more felons are getting a second chance at getting one past felony expunged -- which should make it easier for them to find employment.

It's all thanks to a change in state law one year ago that now allows a one-time pass for nonviolent felonies -- so long as the person who committed it hasn't been found guilty of even one other felony.

Some felons seeking jobs were surprised to learn that their felony records were not erased after judges ordered those records expunged.

It seemed that some of those affected were those who had filed a poverty affidavit.  

If this kind of an affidavit is accepted by the court system, the indigent felon doesn't have to pay the $50 court fee to get his or her record expunged.

The money collected through the $50 fee per expungement goes to the county and its various tax-funded programs, and it brings in tens of thousands of dollars over a period of years.

But Andrea Rocco, who was appointed the Cuyahoga County clerk of courts in January, discovered that poverty affidavits were being given at the drop of a hat -- without a judge's ruling.

Rocco had been examining the books carefully, and she found that before she took the job -- predecessor Gerald R. Fuerst held the post for 37 years -- thousands of dollars were not collected in court fees because of a system that handed out poverty affidavits without determining if the felon requesting it truly was too poor to pay the $50 fee.

As Rocco explains, some of those claiming indigence "seem to be very well-dressed. If it's a female, her nails are well-manicured. She reaches into what I recognize as a $400 bag and she's holding on to an iPhone 5."

Rocco may be rocking the boat about past practices, but she says she has definitely not put roadblocks in the way of those who are seeking expungements.

However, she says, "I am trying to account for the millions of dollars that are taken into my office."

Chief Administrative Judge Nancy Fuerst says the clerk was out of line. Fuerst said she had gotten some complaints from criminal defendants and started poking around to see what happened.

"What the clerk was doing, instead of closing the case, was putting it in a pile and attempting to collect the $50 fee  -- which did not need to be collected because a poverty affidavit was filed," said Fuerst.

Judge Fuerst, a distant cousin to Gerald R. Fuerst,  fired off an email to Rocco this summer, saying, "Your failure to follow the court's orders to seal these records is extremely serious and may be subject to contempt proceedings."

She added, "The court is presuming our orders are being followed and it is very disturbing to know they are not -- to the detriment of individuals who really need the help."

Rocco says there was a temporary backlog of expungements this summer because of a flurry of requests that came in -- and if they stayed apace, there would be about 1,600 this year.

She says she is trying to get a change made in the clerk of court's case management system that would alert judges that a poverty affidavit has been filed.

"We are still putting through expungements," she said, adding that if there isn't a poverty affidavit, she will seek to collect the $50 fee.  

Fuerst, however, maintains that Rocco is going beyond the duties of the clerk's office.

While the clerk of courts used to be an elected position, the  county charter now calls for the Cuyahoga County executive to appoint the clerk.

Rocco was appointed by County Executive Edward FitzGerald.  

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