Doug Berman at Sentencing and Law Policy raises an interesting scenario in federal sentencing that points out potential flaws in the system in the preparation of the PSR (“Pre-Sentence Report) and questions the best way for a criminal defense lawyer to respond.

“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?

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?

This scenario is rather extreme, in the sense that it reached beyond the prosecutors, agents and even the indictment for its statement of offense conduct.  It stretches things a bit, since the normal course is to turn to the AUSA, who provides the statement, often prepared via the agent. 

Flaw 1:  The PSR is prepared by the probation officer who, theoretically, serves the court and is partisan to neither the prosecution nor defense.  So why is it that the PSR always (not almost, but always) states the offense conduct as related by the prosecution?  I usually provide a statement of the offense conduct on behalf of the defendant in advance of the preparation of the PSR.  Never (not almost, but never) has my version found its way into the PSR. 

Flaw 2:  The PSR, in its purported zeal to provide the judge with the “real” underlying criminal conduct, assumes that every allegation ever made by the agents, prosecutors, defendant’s ex-wife or anyone else with something bad to say about the defendant, is a more accurate reflection of the crime than anything the defense can offer.  

One of the comments to Doug’s post suggests, by none other than the Mark Bennett (no, not the Texas Tornado but the other Mark Bennett, the federal judge, N.D. Iowa), that defense lawyers rarely offer a counterversion of the offense conduct:

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.

This comment addresses Doug’s question, but not the problem.  The problem is that the defense’s version of offense conduct is routinely ignored by all.  At best, it opens the door to a Fatico hearing, which is usually the last place a defendant wants to go at sentencing to avoid the government having yet another chance to emphasize every bad thing a defendant has ever done in the worst light possible, not to mention piss off the prosecutors who are then going for blood.  Since the defense is rarely in the position of being able to prove its position, this is a recipe for disaster.

Further, Judge Bennett’s comment says that judge want to sentence “on the most accurate information available.”  Do the district court judges in Iowa have some magic that doesn’t exist in any other district?  How do they distinguish “accurate information” when presented with two conflicting versions of the offense conduct?  They fall back on their supposedly neutral probation officer who has supposedly heard the offense conduct from both sides and arrived at some magical conclusion of who is more accurate.  And it just happens that this is invariably the prosecution.  So the judges feel warm and fuzzy, defaulting to the norm, and the defense version can be found in the rejected counter version stapled to the back of the revised PSR.

Flaw 3:  After the PSR is received and reviewed, and the offense conduct shows up as the prosecution’s dream version, then comes the nice, sweet, polite call to the probation officer to discuss it.  Defense lawyers always speak nicely to the P.O., for to annoy them by arguing or disagreeing is to court even worse disaster than normal.  So we explain, calmly and politely, why their version of offense conduct is off in the stratosphere and why it goes even further than the prosecution’s worst nightmare scenario.  The call goes well, and we hope for the best. 

The revised PSR arrives shortly thereafter, with offense conduct unchanged.  At the very back, behind the pages with the guidelines calculations, recommendation, and supervisor sign-off is a single page with the words, “the defense disputes the offense conduct.”  Woo hoo!  This page is in place of the copy of defense counsel’s letter providing the defendant’s version of offense conduct, which, if provided, gets stapled to the back.  Another woo hoo!  Instead of having a shot at incorporating the defense’s version in the body of the PSR as a balance to the prosecution’s, we end up having it as a dangling sheet at the back making the defense look like whining malcontents.

As to Doug’s question, there is a tipping point where defense counsel must fight the offense conduct when it significantly misstates the truth.  Trivial errors can be ignored, or raised during the sentencing itself if needed, but as much as we would prefer not to dredge up all the bad conduct and focus instead on the good person, significant errors will have a severe impact on a host of post sentencing determinations, ranging from institutional designation to programs to early release.  While we may prefer not to do this at sentence, there simply is no choice when the scales tip so far against the defendant.

The defense shouldn’t be forced to play this game in the first place, however, if the process by which PSRs are prepared wasn’t so badly flawed.  Perhaps Judge Bennett’s complaint about defense lawyers’ failure to challenge the PSR would be better directed to the probation officers who blindly accept the government’s view of the world as being the only trustworthy one around. 

And if defense lawyers had any faith that their proffer of offense conduct had half a chance of making it into the report, they would be more inclined to submit their version in the hope that they could provide a more balanced view to the sentencing judge.  It’s not that we don’t want to be part of the process, but that our effort to do so usually ends up being more of a problem than a benefit.