Judge’s Voiding of Conviction Challenged : Courts: The U.S. attorney opposes a ruling in which Andrew Hauk expunged the criminal record of a disbarred lawyer. The case revives doubts about the jurist’s demeanor.

The U.S. attorney’s office in Los Angeles has challenged a federal judge’s decision to expunge a criminal conviction of an Army reservist who said last August that he needed a clean record so he could accompany his unit to the Persian Gulf.

In rendering his decision, U.S. District Judge A. Andrew Hauk also raised anew questions about his unpredictable judicial demeanor.

From the bench of his courtroom in downtown Los Angeles on Aug 24, the 78-year-old jurist delivered a rambling dissertation on military strategy, the virtues of nuclear weapons and the vices of Saddam Hussein.

He recalled, for example, how he once urged President Lyndon B. Johnson to “drop an atom bomb on Vietnam, North Vietnam that is. . . . I think the world would go for it because it shows decisiveness and courage.” The judge also said he would have volunteered to serve in the Mideast if he were younger.

During a heated hearing, Hauk said he had the inherent power to expunge and seal the record of James Patrick Smith. Moreover, he urged Smith, 45, who had been disbarred as a result of his conviction, to try to regain his license to practice law.

“That, I would think, would be uppermost in his mind unless he’s so gung-ho he wants to go to chop off the head of our great friend Saddam Hussein . . . who’s a liar and a bum and in my book is going to be destroyed by surgical strikes,” the judge said.

“I think (President) Bush knows what he’s doing, he’s tough and he’s got a lot of spunk,” said Hauk. “And he reminds me of Johnson. . . . I told him, ‘You did a great job in the Dominican Republic; dropped 20,000 paratroops, took over the place and had free elections before the Russians could steam out of the Baltic.’ ”

A transcript of Hauk’s remarks was recently filed in the U.S. 9th Circuit Court of Appeals in Pasadena by the U.S. attorney’s office as part of its appeal of the judge’s decision.

Smith, through his attorney, declined to be interviewed.

His attorney, Arthur Margolis, said that Smith had re-entered the reserves and his unit had been activated, but had not gone to the Persian Gulf.

To regular observers of the federal court system here, Hauk’s remarks were no surprise. Appointed as a U.S. District Court judge by Johnson in 1966, Hauk has long been a controversial jurist who is known for eccentricity in the courtroom.

In 1979, during the trial of an antitrust case against the Organization of Petroleum Exporting Countries, he frequently referred to the defendants as “the Opeckers.”

The following year, Hauk aroused the ire of lawyers, civil rights groups and other judges when, in separate cases, he deplored the immigration of “faggots from Cuba” into the United States and made light of a sex discrimination suit by saying “women have a monthly problem which upsets them emotionally, and we all know that.”

In 1989, the California Women Lawyers blasted Hauk for “repeated public display of biased attitudes” after he declared in a sentencing hearing that women are “soft touches . . . particularly when sex is involved.”

The judge said he was giving a lenient, two-year bank robbery sentence to Danielle Mast, the so-called “Miss America Bandit,” because she had fallen under the “Svengali” spell of her boyfriend. Earlier this month, the 9th Circuit Court of Appeals overturned the sentence and ordered a new sentencing hearing.

Hauk declined to be interviewed about the Smith case.

Legal experts say the case raises a significant legal issue--the power of a federal judge to expunge a criminal record, a power which is traditionally more limited in the federal court system than in the state system, according to numerous legal experts.

Over the strenuous objections of Assistant U.S. Atty. Stephen A. Mansfield, Hauk expunged Smith’s four 1982 felony convictions on charges of conspiracy and falsifying credit union loan documents.

In April, 1983, Hauk had sentenced Smith to five years’ probation on each count, to run concurrently.

The conviction came shortly after Smith had passed the California Bar examination. He was immediately placed on interim suspension by the State Bar and ultimately disbarred, and has been unable to practice law since June, 1983, according to State Bar spokeswoman Susan Scott.

Last summer, shortly after Iraqi forces invaded Kuwait, Smith wrote to Hauk and asked him to expunge his conviction, stating that he wanted to rejoin a San Bernardino-based Army Reserve unit he had been a member of for 12 years. Smith said he was having difficulty securing readmission to the unit because of Army rules barring felons from re-enlisting.

“It is my primary desire to continue in the service of my country, especially in view of the present times,” Smith wrote. “An ‘expungement’ by the court would allow my immediate re-enlistment in the U.S. Army Active Reserves.”

However, federal prosecutor Mansfield told the judge that Smith could be activated for duty without an expungement.

Two officials of the Judge Advocate General, the Army’s legal unit, told Mansfield that a felon could obtain a waiver that would permit re-enlistment without expungement, according to a declaration submitted by the prosecutor.

But Hauk said that federal judges “have the inherent equitable power to expunge criminal records in a special case.” And he said that Smith “has demonstrated that his crime was a thoughtless aberration” and he has successfully completed his probation.

“The law must be compassionate and work towards the ends of justice,” the judge said in expunging the conviction.

In the government’s appeal, however, Mansfield argued that expungements should only be granted in extraordinary circumstances, such as when the original arrest was declared illegal or when the conviction was reversed. Smith fit into neither of these categories, according to Mansfield’s brief.

The prosecutor contended that Hauk misinterpreted the case law and abused his discretion.

Several criminal law experts said they had serious doubts about the validity of expunging a sentence and sealing records, except under the most unusual circumstances.

“In principal, expungement should be reserved for the most extraordinary situations,” said Gerald Caplan, a criminal law professor at George Washington University Law School. “This is a dark area of the law” because standards are not clear, Caplan said.

“You create problems when you start rewriting history,” said Philip Johnson, a criminal law professor at UC Berkeley’s Boalt Hall School of Law.

Charles Rogovin, a professor at Temple University Law School in Philadelphia, said one problem with expunging a conviction is that if a defendant were ever accused of another crime, the government could not introduce his record because it would have been eliminated.

The 9th Circuit has not yet scheduled an oral argument in the case.

Smith has formally applied for readmission to the bar and his case is in the preliminary investigation stage, according to his attorney, Margolis. The attorney said he thought the expungement “would have a positive impact on his (bar) application.”