Doug Berman points to a fascinating op-ed in the Roanoke Times, dealing with the rarely mentioned ugly little detail of probation officers in federal cases providing the sentencing judge with secret sentencing recommendations that appear nowhere in the pre-sentence investigation reports.

After federal defendants are convicted, probation officers prepare a report to help judges decide punishment. The pre-sentence report discusses the convict’s history, family, employment, ability to repay costs of the offense, and how the crime affected victims. The report includes a calculation of possible sentences under federal guidelines, based on scores for the offense and the defendant’s criminal history.

This part of the pre-sentence report, while sealed from public view, is shared with the prosecution and the defense and often is vigorously debated in front of a judge in open court.  Another part of the report rarely sees the light of day in most of the nation’s 94 judicial districts.  This is where the probation officer advises the judge what sentence to impose.  “By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence,” says the Federal Rules of Criminal Procedure, which governs the operation of U.S. courts.

The underlying notion is that the probation officer, in the course of his investigation, has gained some deeper insight into the defendant to be sentenced, going beyond the routine criteria.   This allows the PO to tell the judge, sotto voce, about the “real person,” eliminating the static of the lawyers’ rhetoric and spin.

The problem, of course, is that the probation officer has no greater magical powers than anyone else to divine the deeper nature of another person, and few are quite as worthy to judge another as they think.  Yet they are not only expected to do so, but do so without the defendant (or his noisy lawyer) knowing about it, such that absurdly wrong information and conclusions become absolute in the judge’s mind and are immune from challenge.  No one but the PO and judge, and perhaps the prosecutor, knows what’s being whispered in the judge’s ear.

Most lawyers doing federal defense are well aware of this happening, and we recognize the importance of giving the probation officer as much to work with favorable to the defendant during the PSR process.  As wrong as I may believe it to be, there is no benefit in ignoring that the PO has the judge’s ear, and it would be insane to needlessly antagonize the probation officer.  We prepare for the PSR interview so that the defendant is cooperative, thorough, on point and honest.  We provide documentation that makes the PO’s life easier, and offer the information that will, hopefully, help the PO to see the defendant as a real, multi-dimensional, human being. 

It astounded, me therefore, to read this comment to Berman’s post by someone who purports to be a USPS:

There are, sadly, too many POs who harbor a prosecutorial bent. In some cases, they come to the job that way. Many of them, however, are created by the hostile and uncooperative attitude of some defense attorneys. A new presentence officer (at least in my district, a very large one), will experience that the Government is friendly and helpful, often even respectful, while the defense attorney is rude, evasive and even aggressive in thwarting the investigation. The initial reaction is that credibility is given to the Government. This will persist unless the PO either experiences an unethical prosecutor, or is somehow able to see past the unpleasant experience with defense counsel to the underlying validity of counsel’s arguments.

Now sometimes what defense counsel criticizes as a mischaracterization is really just a characterization. Without knowing more about the case that inspired this posting, it is tough to know if Mr. Cargill’s stated concerns are objectively valid or not. Other times, their has clearly been a failure to bring balance to the sentencing assessment. Chicken v. Egg. Are POs sometime prosecutorial because some defense attorneys are hostile, or are some defense attorneys hostile because some POs are prosecutorial?

That defense counsel is “rude, evasive and even aggressive in thwarting the investigation” seems unreal.  What possible benefit would a defense lawyer think can be gained by pissing off the person preparing the PSR and advising the judge?  It’s just plain nuts.

Yet the message is that those of us who do everything in our power to cooperate with the probation officer and help the PO to see the defendant as a human being are stymied, without our knowledge, by their prejudice against the defendant cause by other defense counsel. 

We thus have to add to the calculus that no matter how well we prepare, how cooperative we try to be, how much effort we put into humanizing the defendant and providing context to the offense, we start from a place of incredibility due to the offensive conduct of others that we know nothing about, and end in a place where the PO’s opinion is given to the judge in secret.  This is a problem.

Let’s face reality: we really have little clue who the PO is, what’s going on in their heads, their experiences, their prejudices.  We know more about jurors than about the “little birdie” whispering our client’s fate in the judge’s ear.  They may smile kindly, listen warmly, and burn the defendant six ways to Sunday in the recommendation to the judge.  We don’t know.  We should, but we don’t.

But the absolute last thing we need is having some other criminal defense lawyer think that a probation officer is some low-life court functionary who they can, and should, dump on.  The POs are critical players in this process.  They have a job to do, and they do it.  Their opinion is sought and matters. 

The idea that my client might suffer because some other criminal defense lawyer has soured a probation officer on defendants is unacceptable.  Don’t do it.  And if you think you’re such an important big-shot lawyer that you are entitled to piss off probation officers and treat them poorly, then you need to get out of Dodge.  Whether it’s right or wrong that POs offer their secret recommendations to the court, it’s absolutely wrong for some fool lawyer to screw it up for the rest of us.