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Judges weigh post-conviction employment ruling

In his last year on the bench Brooklyn U.S. District Judge John Gleeson twice confronted the issue of post-conviction employment barriers faced by ex-felons, expunging a 2001 fraud conviction in one case and issuing a “Certificate of Rehabilitation” in another.

On Thursday, in a closely watched test of the first of those novel remedies, a Justice Department lawyer told a federal appeals panel in Manhattan that Gleeson, now in private practice, had no authority to try to help a health aide identified as “Jane Doe” escape the consequences of her fraud conviction.

“Judge Gleeson’s jurisdiction ended about eight years before this action was brought when her probation supervision ended,” said Brooklyn prosecutor Bradley King. “…Sealing the records now essentially eviscerates the effect of that conviction.”

But Doe lawyer Noam Biale said his client was sentenced by Gleeson to five years probation, and argued judges have so-called “ancillary” authority to wipe out conviction records as an extension of their power to impose sentence in the first place.

“Its original decree was not being effectuated,” Biale said. “He sentenced her to five years probation, not a lifetime of unemployment.”

Doe, according to court filings, was a Haitian immigrant and a single mother of four working as a home health aide in 1997, when she agreed to pose as a passenger in a staged auto collision and collected $2,500.

Even after her probation ended, Gleeson found, Doe had problems finding and keeping employment because of her conviction. The judge asked the Justice Department to agree to expungement, citing statements from former Attorney Gen. Eric Holder sympathizing with the plight of ex-offenders, and then ordered it when the government refused.

The case attracted friend of the court briefs from more than a dozen groups. In one, the New York City bar association said “tens of millions” of ex-offenders — predominately minorities — have their chances drastically reduced when they disclose their records.

The three appeals judges gave no clear signal of how they will come out, although Judge Debra Ann Livingston worried that Doe’s lawyers were arguing for discretion so broad that a judge could, in theory, jump in years after a sentencing and order a deportation.

“That can’t be the case,” she said.

The judges gave no indication of when they will issue a decision.

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