Unintended Consequences

 Posted on April 13, 2012 in Uncategorized

I am opposed to employers holding the fact of petty non-moral-turpitude convictions against job applicants. Unless you are hiring drivers, you shouldn't care whether a prospective employee has had a DWI. I can't think of any job (from the office of the President right down to me and you) for which never having smoked marijuana is a reasonable qualification. (It's not like the drunk driver or the pot smoker has been working as an internet marketer.)

But employers often seem unwilling to hire people with chickenshit criminal convictions. That DUI might stop you from getting hired in the mailroom; that possession-of-marijuana case might keep you from loading trucks at a warehouse. And computers make it easy.

A quick, simple, and cheap background check will catch most everything an employer might want to justify not hiring someone. In these recessionary times, this is bad news for the guy with the conviction (or the deferred-adjudication probation).

(The truth of this drives a good deal of my practice: not fighting is more expensive than fighting.)

Then there is the internet. Even an employer who doesn't pay for a quick-and-dirty background check will probably google you. When it does, the unappealed conviction is probably not going to appear: records of criminal convictions are valuable, and nobody (not even the Texas Department of Public Safety) is giving them away in any organized way.

But the appealed conviction...ah, that's another thing entirely. If you appeal your case, the court of appeals is going to publish (on the Internet, even if the internet is "not for publication") an opinion, and the opinion is going to contain your name, prominently, several times, as well as a description of what you were charged with. Even if the court of appeals reverses and renders, it's going to put your name out there and the internet-wielding public is going to easily find out about the accusation against you.

I've got this project, the Texas Criminal Slip Opinions Server (TCSOß). It's still in development (whence the ess-tset), but it takes the opinions in criminal cases from the Texas courts of appeals (fifteen intermediate appellate courts and the Court of Criminal Appeals), converts them from PDF to HTML if necessary, adds some tags (reversal? state's appeal? what trial court? what county?) and posts them sequentially on the day that they are released by the courts.

The idea arose from my own need for the product: I knew that I would read more case law if it were in one place, in HTML format, and accessible via RSS. I've put more money into the project than it merits, perhaps, but my hope is that I won't be the only one to use it, and that it'll improve the quality of criminal lawyering in Texas by making it easy for anyone who's interested to keep up with the state of the criminal law.

When TCSOß automatically republishes an appellate opinion, it republishes the name and the charge. Which wouldn't necessarily be consequential, except that for some reason known only to Google, TCSOß often comes up first in a search for the unique name of a person. It comes up before the opinion on the court of appeals website, before the opinion on any of the slower publishers, and often before anything that the person holding the unique name would like searchers to find.

I got a telephone message today from Roxanne (Roxanne and Zulema answer my phones when I can't be reached directly): "Joe Schmoe called he says that every time he googles his name your website comes up and he wants his name taken down please call him he feels this is hurting him when looking for a job." I called Joe back to get some details, but I haven't heard back from him yet.

I feel for Joe. His name is highly googleable, and when you google it the opinion on TCSOß affirming his class-B misdemeanor convictions (POM and DUI) pops up before anything else; six or so sites created by him come up next (joeschmoe.net, joeschmoe.net/joe-schmoe-blog, joeschmoe.net/formeremployer, etc.), followed by the Findlaw version of the appellate opinion. The court's version of the opinion is on the second page.

(Aside: TCSOß doesn't use any sort of SEO wizardry. Why does it kick Findlaw's ass in search results? Because Findlaw sucks.)

If TCSOß weren't there, Findlaw would still be on the first page. I expect that eventually the TCSOß and Findlaw posts will slip down off page one, but until then (and if employers look beyond page one) Joe is in a tough place.

Joe's discomfiture is an unintended consequence of the creation of TCSOß. But Joe is just the tip of the iceberg. There are tens of thousands of people who would prefer that the appellate opinions in their cases recede into obscurity.

TCSOß is an important project, and the name of the defendant is an important part of the case. When we talk about appellate opinions, we refer to them first by the name of the defendant. Joe's case doesn't at first blush appear particularly important (not for publication, legal sufficiency the sole issue), but almost any case could be important to someone. Some lawyer working on something entirely different might at some point need to know about Schmoe v. State.

So what responsibility do I have, and what do I do about it?

(Incidentally, joeschmoe.net touts Joe's internet marketing services. Joe's problem may be as much meta-that he isn't able to market himself above the fact of his conviction-as proto-the fact of his conviction. So Joe may not be the best test case. But there will be others looking for honest work who may be affected by TCSOß.)