Remembering Emily Gagnon – After Her Killer Manages To “Seal” The Record

Emily Gagnon was a 21 year old woman from Holliston, Mass. In 2013 she left Holliston for a solo cross country bicycle trip. She was riding to raise money to benefit people who have MS. On September 23, 2013, at 7:20 pm, Emily was killed when motorist Lynne Smith smashed into Emily from behind on State Route 163 near the quaint Lake Erie town of Port Clinton, Ohio. Smith claimed she “couldn’t see” Emily because the setting sun was in her eyes…

Smith was charged under Ohio’s Vehicular Homicide statutes. She cut a deal with prosecutors in which she plead No Contest to Vehicular Manslaughter, a second degree misdemeanor under Ohio law. Smith was found guilty and given the max sentence- 90 days in jail, fine, license suspension. Judge Hany did not order ANY jail time – rather he held that over her head in the event she did anything else wrong. So she got, in essence, two years of being able to do whatever she wanted to do without restriction so long as she kept her nose clean & stayed out of trouble.

Fast forward two years… To her credit, Lynn Smith kept her nose clean and stayed out of trouble. The Court determined that she had “paid her debt to society” and terminated her criminal case.

Now… this is NOT a post about lousy driving, criminal laws with no teeth, crappy sentences for convicted killers or stupid motorist excuses like “I was driving west, towards the setting sun and I couldn’t see… but I kept moving a dangerous two ton machine forward at 50mph…

No… that’s all for another day…

Rather, this is a post about hiding criminal records… specifically Lynne Smith’s criminal record. You see, in June 2018 Lynne Smith filed a Petition to Seal the record of her conviction – to box it up, shutter it up, pull it off the InterBlawg, and hide it from everyone that she was a convicted killer!

 

So Smith files her a motion with the same court that convicted her and the same judge who didn’t send her to jail will hear the motion.  Emily’s parents are informed and loudly object.  The Prosecutor files an objection. A hearing is set in July. Emily’s parents make arrangements to fly into Ohio from Massachusetts, where Emily once lived.

Emily’s parents reached out to me for some help. I was able to get local cycling advocates involved and the Court received MANY letters from the cycling community with their thoughts on whether sealing the record was a good idea.

The hearing was held on July 27. I drove up to Ottawa County, about a 4 hour drive from Cincinnati, for the hearing primarily to support the Gagnon family on behalf of the cycling community. I thought there would likely be a 20-minute hearing at which the Prosecutor and defense lawyer would make their arguments to the Court.

We all arrived. I had coffee with Emily’s parents and aunt and heard a LOT about what a beautiful, loving, funny, caring person Emily was. We then met up with the Prosecutor and waited… and waited… in the courtroom. Eventually, the Judge asked us to meet with Ms. Smith directly, so we all sat in a courtroom with Ms. Smith & talked a bit about what she, & the family had been through. Then the Court thought things would go better if there were no lawyers in the room. That went on for quite a while, without a resolution.

Finally, the Court announced that the hearing would start in the afternoon. The Prosecutor decided that since the statute required that the “State” produce a reason for not sealing the record, he would call ME to the witness stand to talk about that issue. I quickly went from Spectator to Expert Witness! The statute itself is rather vague about how the hearing would proceed, and what evidence was needed, but since I had a background in researching these issues, from both a legal and statistical perspective, and since I had testified before the legislature on Bike Law issues, I was drafted as an “expert witness” by the Prosecutor.

I watched the family’s heartbreaking testimony about the impact losing Emily has had on their family and how sealing the record would really amount to a slap in their face as they continued their own healing process. Ms. Smith testified about her desire to have this “behind her” but cited no real reason to seal the record beyond that. I was called to the stand and talked about the use of data from case files by those drafting laws, legislators seeking to amend or draft new laws, researchers trying to determine if police or the courts were properly handling cases and more.

After the hearing was over we thought the Court might issue a ruling from the bench. It did not… so we waited…a month… two months… three… summer turned into fall… finally… the notice arrives…

Today I received the Judge Hany’s decision. Granted… the record is SEALED.

The Court found that Expungment was to be granted liberally and that the nature of the crime really didn’t play any role in the decision whether or not to seal the record. The Court received and acknowledged the numerous letters sent in by community members, and acknowledged the family’s grief. However, these things are not really factors under the Statute. The court did not feel that my testimony met the State’s burden in proving a reason why the record should be kept open. The court said that, at best, the evidence presented by the prosecutor was perhaps equal to, but did not outweigh, the “privacy interests” of Ms. Smith. He described Emily’s death as the result of “a momentary but ultimately fatal lapse in judgment and not one where the applicant’s state of mind was in any way, malicious or repugnant to a state interest.” The Court stated the the statute which allows for the sealing of records is “…a manifestation of the traditional Western civilization concepts of sin, punishment, atonement and forgiveness…”

So the Record of Ms. Smith’s conviction as a killer is officially Sealed.

Now, I have data from the crash and the criminal case, which I will certainly keep online so the case won’t “go away” and anyone searching the internet can find it. But Ms. Smith can know that if she applies for a new job her employer won’t know that she was convicted of vehicular manslaughter…

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