Courts - Oklahoma Man charged in 1996 deaths wants his record sealed Prosecutor says there is no legal means of removing arrest

By Michael Baker

The Oklahoman

OKLAHOMA CITY (AP) -- A man charged in three deaths during a 1996 shootout wants his criminal record wiped clean of the arrest and resulting first-degree murder counts.

The 1999 trial of Tybream Demont Rogers was declared a mistrial after a defense attorney raised allegations of sexual misconduct by an Oklahoma City police officer. An appellate court ruled Rogers could not be retried because it would be double jeopardy.

More than 10 years after that ruling, Rogers, 35, wants his role in the episode erased from his criminal jacket. He has filed a petition for the expungement of his record. A hearing has been set for Thursday in Oklahoma County District Court.

Given the charges, such a request is unusual, said Oklahoma County District Attorney David Prater, whose office -- along with attorneys for Oklahoma City and the Oklahoma State Bureau of Investigation -- opposes Rogers' request.

"Frankly, I was surprised that the expungement was filed," said Prater, who was an assistant in Oklahoma County District Attorney Bob Macy's office when the case was tried. "That's unusual that you'll ever have anyone file a motion for expungement on a case as serious as murder."

Rogers says the charges are unfairly hurting his chances of finding a job. Arrests, charges and case outcomes show up when an employer does an OSBI background check.

Those opposed to sealing Rogers' records say since there was never a finding of guilty or not guilty and the charges were never dismissed, there is no legal means to remove the arrest from the record. Further, giving the seriousness of the charges, the public has a right to know about them.

On June 2, 1996, a gang shootout in the parking lot of a northeast Oklahoma City nightclub left three dead -- Clarence Smith Jr., 20; Jimmy Horton, 23; and Fredricka Reed, 21. Arrested at the scene was Arnold Dean Jr., 20.

Rogers, who already had been identified as a suspect, was arrested when he showed up at police headquarters about a week later to claim his car, which police had found 60 miles northeast of Oklahoma City.

The trial for Dean and Rogers was in September 1999. Neither man was accused of firing the fatal shots, but they were charged with murder in connection with the shootout.

The trial ended abruptly when a defense attorney attempted to grill Johnnie Wayne Loudermilk, the state's first witness, about sexual misconduct that led to Loudermilk's dismissal from the police force.

Arguments between attorneys took place outside the hearing of the jurors. Prosecutors said the defense was attempting to poison the jury with inadmissible evidence. The defense accused prosecutors of withholding evidence showing that the district attorney's office declined to prosecute when a rape allegation against Loudermilk was presented by the Oklahoma City police internal affairs division.

The judge declared a mistrial. The Oklahoma Court of Criminal Appeals ruled Dean and Rogers could not be retried because that would put them in double jeopardy.

Internal affairs reports later obtained by The Oklahoman indicated that among the reasons prosecutors didn't charge Loudermilk was because the victim never verbally or physically resisted.

In March, Rogers asked the court to erase the charges from his record. Rogers' attorney, Aletia Haynes Timmons, wrote that state law allows the expungement of records if charges are overturned by an appellate court.

The charges have "limited the Plaintiff's (Rogers') ability to find employment and the records contain heinous charges that are available to the public despite the charges being thrown out by the Court of Criminal Appeals," Timmons wrote. "The Plaintiff's harm to privacy outweighs the public's interest in retaining the records."

Attorneys for the district attorney's office and Oklahoma City argued just the opposite.

"The public has the right to know the Petitioner's (Rogers') entire criminal history and especially an arrest for murder in the first degree," wrote Oklahoma City assistant counselor Edward Hasbrook. "The crimes underlying the arrest records at issue were violent and deadly. ... To that extent, the city believes that licensing agencies, employers and/or potential employers have the right to know of an employee's true and complete criminal history."

Further, Oklahoma law allows the record to be sealed if an appeals court overturns a conviction, but not for a mistrial, according to paperwork filed by Assistant District Attorney David Cincotta.

Rogers' record also includes three 1996 felony convictions for burglary, for which he was sentenced to seven years in prison. Rogers served two years in prison with five years suspended beginning in 2000, according to court records.

"Agencies and employers, neighbors and concerned citizens should have the ability to discover information about all of Plaintiff's (Rogers') arrests and not just some of them," Cincotta wrote. "The expungement process is intended for individuals who are law-abiding citizens and residents of Oklahoma. The expungement process is designed to provide a second chance to those who qualify"

Published: Wed, Jul 7, 2010