IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THOMAS W. WEBSTER, IV,
C.A. No. Kl6X-06-0()2 AMF

Petitioner, : Kent County
V_ .
STATE OF DELAWARE,
Respondent.
ORDER

On this an day of September, 2016, the Court having considered Thomas W.
Webster’ s Petition for Expungement of Criminal Record and the opposition response
filed by the State, the Court denies the petition Without prejudice.

Petitioner Thomas W. Webster, IV (“Webster”) petitions this Court for an
expungement of his criminal record. Webster Was arrested by Capitol Police on May
4, 2015 on charges of Assault Second Degree. Webster Was found not guilty after a
jury trial. Webster has no prior criminal record. Title ll, section 43 74 of the
Delaware Code provides this Court the discretion to grant a petition for expungement.
The statute requires that the petitioner include his criminal history With the petitionl
The statute also states that “[t]he burden shall be on the petitioner to allege specific
facts in support of that petitioner’s allegation of manifest injustice, and the burden
shall be on the petitioner to prove such manifest injustice by a preponderance of the
evidence.”2

Webster provides no specific facts in support of his allegation of manifest

injustice. Webster merely states that “the continued existence and possible

 

1 ii Del. C. 4374(b).
2 ii Del. C. 4374(¢).

Webster v. State of Delaware
C.A. No. Kl6XO960992 AMF
September 2, 2016

dissemination of information relating to the arrest of Petitioner causes, or may cause,
circumstances Which constitute a manifest injustice to Petitioner.” This statement is
statutorily insufficient because section 4374 places the burden of alleging facts
specific to manifest injustice on the petitioner. Section 4374 also requires that
manifest injustice be proven by a preponderance of the evidence. The Court cannot
assume facts for the Petitioner; they must be alleged and proven. Although not
required by statute, an affidavit or memorandum of law supporting Webster’s petition
for expungement Would aid in alleging specific facts and supplying proof of manifest
injustice.

Case law indicates that the bar for proving manifest injustice is not high. F or
instance, in Moss v. State, the petitioner had been arrested for three counts of First
Degree Rape, two counts of Sexual Assault, and one count of Official Misconduct.3
All charges Were nolle prossed With the exception of one count of Sexual Assault,
Which Was dismissed. The State argued that the petitioner Was not “innocent” as
contemplated by the relevant statute and therefore not entitled to expungement. The
State further argued that evidence gathered during the course of the investigation
indicated that the petitioner had made certain admissions to the alleged offenses. The
petitioner argued that the existence of the arrest record had and Would continue to
result in investigations Which had caused him embarrassment and quite possibly
hindered advancement in his job. The court Was satisfied that the petitioner had

established that he had and Would continue to suffer manifest injustice

 

3 Moss v. State, 1996 WL 11020(), at *l (Del. Super. Feb. 15, l996).

2

Webster v. State of DelaWare
C.A. No. K16XO960992 AMF
September 2, 2016

In Sackett v. State, the petitioner Was charged With seven offenses that included
Assault Second Degree, Endangering the Welfare of a Child, Possession of a Weapon
During the Commission of a Felony, and Menacing.4 The petitioner entered a plea
of guilty to Assault Second Degree and later petitioned of expungement With respect
only to those charges Which Were nolle prossed. The Court found, and the State
conceded, that the petitioner had made a conscious effort to reform herself The
petitioner contended that the reflection in her record of an arrest for Endangering the
Welfare of a Minor could jeopardize her future opportunities as a teacher. The court
found that the existence and possible dissemination of such information Would
constitute a manifest injustice to the petitioner.

In opposing Webster’s petition, the State relies on Farr v. State.5 In Farr, the
petitioner, a physician certified in obstetrics and gynecology, Was arrested and
charged With Third Degree Unlawful Sexual Contact and Third Degree Unlawful
Sexual Penetration. There Was a fair amount of publicity surrounding the arrest as
in the mater before this Court. The petitioner Was acquitted after a jury trial, and the
subsequent petition for expungement Was opposed by the State. The petition Was
stayed pending the outcome of a related complaint to the DelaWare Board of Medical
Practice. The Board found the accusations against the petitioner to be credible and
revoked the petitioner’ s license to practice medicine in DelaWare. The court engaged

in a thorough discussion on the definition of manifest injustice, and found that the

 

4 Sackett v. State, 1998 WL 281()57, at *1 (Del. Super. May 7, 1998). See also Doody v.
State, 1998 WL 733055, at *1 (Del. Super. Sept. 15, 1998).

5 Farr v. State, 1997 WL 524056, at *1 (Del. Super. Apr. 15, 1997).

3

Webster v. State of DelaWare
C.A. No. K16X0960992 AMF
September 2, 2016

term “manifest” implied a rather heavy burden. When the stay Was lifted and the
petition once again pursued, the petitioner made two claims. The petitioner first
claimed the record of the arrest could affect how he Was treated during such things
as a routine traffic stop. The petitioner next claimed that he Was deterred from
seeking more advantageous employment by virtue of his arrest record and that the
record had already cost him one job. The petitioner claimed he informed his
employer of the acquittal, but the employer did not believe him because in the
employer’s opinion, if the petitioner had been acquitted, then the charges Would not
still be visible.

Regarding the first claim, the court found that police officers do not normally
investigate a suspects arrest record during routine traffic stops, and that if the
petitioner Was arrested for a felony, the expunged record Would not be protected from
disclosure to law enforcement. Regarding the second claim, the court found that the
petitioner failed to provide specifics to support a potential finding of manifest
injustice such as: “(l) the identity of the employer; (2) the exact job opportunity of
Which petitioner complains; and (3) the identity of the individual Who made the
employer aware of the ‘arrest, but acquittal,’ since it does not appear that it Was Farr
Who did so.”6 The court also noted that there Were newspaper accounts of the
petitioner’s arrest still in existence, and that the Board of Medical Practice’s decision
militated against finding that any injustice suffered by the petitioner Would be

“manifest.” The court found that the petitioner had failed to set forth sufficient facts

 

6 Ia’. at 3.

Webster v. State ofDelaware
C.A. No. K16X0960992 AMF
September 2, 2016

to demonstrate manifest injustice.

Webster’s case is somewhat analogous to the Farr case with one notable
exception. Both Webster and the petitioner in Farr were involved in high profile
cases that received public attention, and both were acquitted However, no complaint
against Webster was filed with a professional board in relation to the same charges
for which he was acquitted. Webster may have been disciplined by the Dover Police
Department for past actions, but this type of discipline is distinguishable from a
complaint to a body such as the Delaware Board of Medical Practice. Webster was
charged with a crime and found not guilty. IfWebster is able to supply specific facts
related to how the arrest record would be manifestly unjust, the expungement should
be granted under Moss and Sackett. However, there are arguments in Farr such as
the continued existence of a public record that would justify a denial of the petition

The Court will deny the petition without prejudice and allow Webster to submit
a petition that alleges facts specific to manifest injustice and proves the injustice by
a preponderance of the evidence.

IT IS SO ORDERED. F a
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Hor: William L. Witham, Jr.
Resident Judge
WLW/dmh
oc: Prothonotary
xc: J ames E. Liguori, Esquire
Mark A. Denney, Jr., Esquire
Danielle J. Brennan, Esquire

