Practitioner’s Notes: Caught Between a Rock and a Hard Place

In a recent post found here, it was noted:  “It has long been the practice at sentencing that prosecutors stress the awfulness of the offense and defense attorneys stress the not-so-awfulness of the offender.”  But what is the defense attorney to do when her client pleads guilty, perhaps even cooperates, and the PSR gets the “awfulness” of the offense wrong?  I’m not talking about simple, black and white errors, but when things are shaded in a way that makes your client seem materially worse than is justified. 

Probation Officers, whose fields of expertise generally lie elsewhere, frequently rely on others to prepare the PSR’s offense conduct section.  This is a particular problem when complex financial crimes are involved.  Usually, it’s the prosecutors who draft the offense conduct.  Hardly an independent source, but often, sadly, the most reliable from the Probation Officer’s perspective.  Often, the offense conduct is based at least in part on unsworn and unconfronted statements of (other) cooperators, who have an incentive to paint your client in the worst possible light.  The worst I’ve seen was a PSR that copied as its offense conduct, verbatim, the victim-bank’s investigation report, which was prepared in anticipation of the civil fraud lawsuit the bank intended to file against the defendant.  So a thirty-page offense conduct section comes out in the draft PSR and, all of a sudden, your client orchestrated everything, was the mastermind of every sneaky scheme in the book, recruited – nay, forced – subordinates into the conspiracy, and so on.  What do you do?  Do you challenge the PSR or ignore it? 

Neither solution seems perfect.  Taking on the PSR is fraught with danger.  Assuming you cannot convince the Probation Officer to revise the report, you end up spending the sentencing hearing, or at least a substantial portion of it, focusing the Judge’s attention on exactly the facts on which you do not want her attention focused.  Humanizing your client is one of the most important, if not the most important, responsibilities of a defense attorney at sentencing.  A pitched battle over the exact nature of your client’s wrongdoing hardly achieves that goal.  You also risk getting the prosecutor’s back up.  Plus, even if you did want to take on the PSR, how?  Again, the question generally arises in a plea scenario, where there is no trial record.  Attorney proffers aren’t effective.  Calling other witnesses, even if the Judge would give you such latitude, invites a he-said-she-said debate that may not lead to any answers.  Calling your client to the stand risks several potential disasters.  Will he stand up to cross-examination?  Will he lose credit for acceptance of responsibility?  Or, simply, will he be viewed unfavorably by the Judge for any of a host of reasons?

On the other hand, ignoring the devastating description of your client seems an equally poor choice.  You may convince the Judge that your client is deserving of sympathy – he has terrible family circumstances, is a leader of his community, gave to charity, donated a kidney to save a stranger’s life, and spends Saturday afternoons helping little old ladies cross the street – but it is unlikely to do much good.  All the Judge hears is “blah, blah, blah” because she’s read the PSR, which lays out how he masterminded this terribly corrupt scheme, involving thousands of corrupt acts over years and years.

I suppose the answer in part depends on the Judge.  Is this the type of Judge who will review the PSR carefully, and be so focused on the offense conduct that your sympathetic arguments will fall on deaf ears, or is the Judge someone who will care more about what type of person the defendant is?  Changing the system so that the PSR isn’t written by the plaintiffs’ class action lawyers or other biased, self-interested parties also seems like a worthwhile goal.  But in the meantime, it still strikes me as being caught between a rock and a hard place.

Matthew Queler

Proskauer Rose