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July 28, 2008

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

July 28, 2008 at 02:40 PM | Permalink


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The consequences of allowing a PSR to go uncorrected may reach far beyond the immediate sentencing hearing. In some, perhaps many, jurisdictions, the PSR is relied upon by prison officials for classification purposes, by parole boards for determinations re: release dates and conditions, by commutation boards re: pardons and early releases, and by possibly by litigants in future cases, assuming that the PSR is unsealed. These considerations may not matter as much in all jurisdictions, but in many states the PSR has a long life following the sentencing hearing.

Posted by: jonell | Jul 28, 2008 5:28:29 PM

Same question arises when the PSR badly overstates loss amount. Fighting hard can get the prosecutor up in arms. I mean there are 5K letters and there are 5K letters right? Let the number stand and your judge will be working from a very high guideline. Any advice?

Posted by: DAG | Jul 28, 2008 7:02:58 PM

Here are a few suggestions from a long time correctional administrator:

1. Call the probation officer and offer sourced-information to correct mistakes, before the report is submitted, if possible. It will be welcomed. Probation officers don’t want to make mistakes.

2. Question information and opinions in a probation report that are not sourced.

3. Consider getting a sentencing report from a qualified, independent corrections consultant.

4. Distinguish between sentencing objectives; then sort the information in a report by objective so that it is not used incorrectly. Most of the touchy-feely stuff is relevant to risk only, not holding the offender accountable.

5. Remember that correctional people make far more deprivation decisions than judges. It is very important that the information they receive be accurate. Correctional people are as interested in having accurate information as you. Most correctional agencies have a policy about correcting miss information. Take advantage of it.

6. Use nouns and verbs, not adjectives and adverbs.

Posted by: Tom McGee | Jul 28, 2008 7:36:13 PM

In our district, as I assume in most, the defense lawyers have the right to submit their own offense conduct statement. In over 2500 cases I can count on one hand the number of times a defense lawyer has done so. I can't imagine a judge holding it against a defendant or their lawyer for challenging something in the prosecution's offense conduct statement that they disagree with. All judges I know want to sentence on the most accurate information available. I typically average over 90 contested ( by that a mean witnesses called) sentencing hearings a year so what is the big deal about the defense contesting the offense conduct statement? It would seem to me to be a failure of adequate representation not to.

Mark w. Bennett
U.S. District Court Judge
Northern District of Iowa

Posted by: Mark Bennett | Jul 28, 2008 7:37:13 PM

I no longer have clients, but when I did, I always submitted a defense version, weaving in mitigating circumstances of the offense (e.g., in a fraud case, the D was being ripped off by the govt's star witness and thus his business going under) and/or mitigating characteristics of the defendant (he was bipolar and his crazy actions exactly correspond to a manic cycle). As Mr. McGee says, these were "sourced." I also contested any inaccurate information with "sourced" material. This is hard work, but is fruitful and I think necessary because 9 facts out of 10 in the government's version are inaccurate or overstated. In my experience, judges were interested and persuaded by a competing version. The idea that you should let garbage stand so the judge won't focus on it seems foolish. The judge is going to focus on it anyway. Might as well give the judge a more accurate version and limit the damage.

Posted by: abe | Jul 28, 2008 9:52:04 PM

I think the last two posts have it right. While it is tempting to always be in a adversarial frame of mind, PSR strikes me as one area where it best to relax a little and stress to the judge that you are on a common search for the accuracy. Of course, you still want to put the best lipstick on the pig; that's natural. But getting the judge's or the DA annoyed seems to more likely to happen as result of a misplaced attitude. Sometimes the way you frame the matter is more important than the details that emerge, as every good lawyer knows.

Posted by: Daniel | Jul 28, 2008 10:09:02 PM

I may be hopelessly naive, but why not talk to the prosecutor and try to come up with a mutually acceptable version?

Posted by: Monty | Jul 29, 2008 10:19:13 AM

Sentencing is a heavy matter, and experienced attorneys know how difficult it can be to work with/against a hard-headed prosecutor. Knowing the system, the judge and the pitfalls are keys to any successful negotiation/argument.

Posted by: Joe | Jul 29, 2008 12:49:38 PM

I cannot fathom why a defense attorney would not file objections to material errors in the offense conduct section of a PSR. This is especially so when the client has plead guilty. When the client pleads, as opposed to going to trial, the judge has a far less nuanced grasp of the relevant facts, including the motivation of others to lie about the client. Also, the PSR follows the client into prison; the BOP makes all sorts of classification decisions based on Offense Conduct and other information in the PSR. Getting it right matters.

In a related note, I've always wondered how probation officers can get away with the things they do in PSRs. Their guideline calculations and other legal analyses are commonly rife with error. Aren't they practicing law without a license?

Posted by: Bob Jenkins | Jul 30, 2008 5:58:00 PM

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