07/31/2002
The Ohio Adult Parole Authority has no duty to maintain accurate records.

After the first parole board hearing the prisoner filed an appeal to the full board stating the records cited by the parole board were inaccurate, that he had never been to North Carolina, and that he had never been charged, arrested, or convicted of any rape in North Carolina.  The parole board denied his appeal without comment, stating their records reflected the conviction. The prisoner filed in the courts of Ohio challenging the record maintained by the Ohio Adult Parole Authority was in error and inaccurate, that he had never been in North Carolina or charged, tried or convicted of any rape in North Carolina, or in fact, any charge in that State. The Ohio Attorney General's Office replied to the prisoner's complaint stating that he had failed to state a claim upon which relief could be granted because the Ohio Adult Parole Authority had no duty to maintain accurate records. His cause was dismissed with the Ohio court finding that a prisoner has no right to accurate records. As stated above, five years later the prisoner was again denied parole based on erroneous and inaccurate records in his parole board file.

In 1994-95 another prisoner at Chillicothe was denied parole by the Ohio Adult Parole Authority. The reasons given by the parole board were that the prisoner's crimes resulted in the loss of over $100,000.00 to the victims of the technical securities violations for which he had been convicted. Petition for Writ of Mandamus was filed by this prisoner, assisted by the author of this column, in which clear and convincing evidence was adduced showing the loss to the victims of the technical security violations was incurred prior to the man becoming involved in the sale of the securities, and thus, he was not responsible for any loss to the victims. The State Attorney General's Office responded to the Petition stating prisoners have no right to accurate records and the Petition was dismissed.

In a related matter in this case the FBI launched a full-field investigation that resulted in the elected prosecutor of Guernsey County, Ohio, Charles Keith Plummer, being recommended for federal prosecution for a Criminal Civil Rights Violation. The investigation uncovered proof of actual innocence being deliberately withheld from the trial by the prosecutor in this case.

Even when faced with testimony and reports submitted by the FBI, the Ohio Adult Parole Authority refused to correct this man?s records, or grant him a parole. Upon the FBI directly contacting the Governor's Office in 1996, Governor Voinovich personally intervened and ordered the man released on parole in October 1996. Yet, while faced with overwhelming proof of this man's innocence submitted by the FBI, the Ohio Adult Parole Authority has kept the man on parole the maximum of five years, and has never corrected his parole records either to reflect his innocence of the charges for which he was convicted, or his lack of responsibility for any financial loss of the victims involved in the case. His parole will terminate by statute in October 2001.

In Ohio, prisoners and parolees have no right to accurate information in their Master Files and Parole Files. They have no right to correct inaccurate information in these government files. They have no State Court forum or legal claim available to them with which they can correct inaccurate allegations or records. In essence, if they wanted to, the Department of Corrections and the Ohio Adult Parole Authority could have each inmate's record written by Stephen King and then depend upon that record to deny parole to the inmate, without the inmate having any recourse at law to correct those totally false and erroneous records.

Needless to say, this is a grave problem that needs challenged and addressed. This author has some suggestions for those prisoners faced with false and inaccurate records.  In Tarlton v. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974), the United States Court of Appeals addressed a claim that Tarlton's FBI "Rap Sheet" contained entries for arrests that were never prosecuted, and entries reflecting unconstitutional convictions that had later been overturned.

The Court gives a compelling constitutional analysis of the reasons a citizen is entitled to accurate government records, then specifically disclaims its decision is made on constitutional grounds, relying instead on the language of 28 U.S.C. §534. The decision is too lengthy and detailed to discuss in detail in this column and readers are strongly urged to study both the opinion and the dissent in this case.

In Pruett v. Levi, 622 F.2d 256 (6th Cir. 1980), the Court states: "Federal regulations control the collection and dissemination of information in criminal files by the FBI and by state and local law enforcement agencies. 28 C.F.R. [Code of Federal Regulations] §20.1 et seq. (1979). State and local enforcement agencies are required to formulate plans which will ensure the completeness and accuracy of criminal records, 28 C.F.F. §20.21(a); limit their dissemination, 28 C.F.R. §20.21 (b); provide the individual with access to his file, an opportunity to request corrections, an opportunity to have administrative review of the request, and an opportunity to appeal the denial of a request, 28 C.F.R. 20.21(g); and require the state or local agencies to inform the FBI and other agencies of any corrections, 28 C.F.R. §20.21 (g). State and local agencies must comply or face the possible loss of federal funds.

Subpart C of the regulations establishes the procedures for the FBI and other federal agencies. Individuals are provided the right to receive copies of their criminal files. 28 C.F.R. §20.34(a). Individuals are instructed to apply for corrections to the contributing state or local agency; however, requests sent to the FBI will be forwarded to the proper contributing agency. 28 C.F.R. §20.34(b). The regulations declare that the contributing agency has the responsibility of assuring complete and accurage records, 28 C.F.R. §20.37, and they provide sanctions against the contributing agency for noncompliance. 28 C.F.R. §20.38. The regulations establish time guidelines for reporting dispositions. 28 C.F.R. §20.37. Pruett at 257. The sanctions can also include disconnecting the offending state agency from the National Criminal Identification Computer Network. See, Menard v. Saxbe, 498 F.2d 1017, 1026-1028 & nn. 28 & 41 (D.C. Cir. 1974).

For further authority in support of the right to accurate records, causes of action therefore, and the procedures required to be used, including exhaustion of state remedies, See, Testa v. Winquist 451 F.Supp. 388 (D.Rh.Is. 1978); Utz v. Cullinane, 520 F.2d 467 (D.C.Cir. 1975); Doe v. Webster, 606 F.2d 1226 (D.C. Cir. 1979 and cases cited therein.

WARNING: Lastly I have some very important information for all of you who are pursuing Federal Writs of Habeas Corpus.  In Emerick v. Huffman, Case No. C3-99-051, pending U.S. District Court Dayton, the Ohio Attorney General's Office was caught serving a full copy of the trial transcripts upon the incarcerated petitioner with the Return of Writ, but not filing a copy of the trial transcripts in the District Court as required by Habeas Rule 5. The Federal Public Defender's Office representing Mr. Emerick discovered this when they were appointed as counsel. By serving Mr. Emerick with a copy of the trial transcripts we were misled into believing that the District Court had a copy of the transcripts before it, when in fact, no copy had been filed by the State. 28 U.S.C. §2254 (f) places a duty on Emerick to make sure the record is before the court, show his inability to file the record, and to request the Court order the State to file a complete record. The State, by misleading petitioners in Ohio in this manner, has apparently been receiving decisions on prisoner's writs in this State based solely on the briefs filed and the opinion of the Courts of Appeals. The Federal Public Defender's Office filed a Petition for a Writ of Certiorari to the Common Pleas Court in the U.S. District Court in Emerick's case, which was granted. This caused the full trial record to be transmitted and filed in his case. Anyone who has or is litigating a Habeas Corpus needs to check and make sure the OAG did not do this to them also. A dismissal of a Federal Writ of Habeas Corpus by a Federal Judge without a review of the trial transcripts is reversible error, reason for the filing of a second or successive petition, or reason under Federal Rule of Civil Procedure 60(B) for Relief from Judgment for Fraud and Deception.

See, Sizemore v. District Court, 735 F.2d 204, 207 (6th Cir. 1984); Vicks v. Bunnell, 875 F.2d 258, 259-60 (9th Cir. 1989); Ruff v. Kincheloe, 843 F.2d 1240, 1242-43 & n.5 (9th Cir. 1988), But See, Hamilton v. Vasques, 882 F.2d 1469,1471 (9th Cir. 1989).