Your Child Sex Offender Client Is Going To Be Sentenced: Ready or Not?

Joel Erik Thompson^*

ABSTRACT: The defense attorney's responsibility does not end with the negotiation of a plea bargain, but continues through the sentencing decision.  Although there are limits as to what can be accomplished, the defense attorney can have an impact on the presentence report and provide information to the sentencing judge.  The defense attorney should maintain professional integrity and advocate realistically in an effort to prevent the client from receiving an undeservedly harsh sentence.
  

Having succeeded in negotiating a plea "bargain" under which your client is eligible for probation (with stipulated one year flat jail time?) rather than the mandatory 150 year plus sentence he was facing, the tendency is to relax and feel satisfied.  It is now the responsibility of the sentencing judge and the investigating probation officer to determine a fair and reasonable sentence.  So when you reappear in court with your client in a month for sentencing, all you need do is mumble the usual canned platitudes and everything will be all right.

The above scenario probably accounts for at least half the injustices in the justice system.  Would you waive closing argument in a jury trial on the basis that the jury saw and heard all of the evidence and it's now up to them to do justice?  Complacent advocacy in the sentencing process makes even less sense because unless you actively involve yourself in the process, the sentencing judge will probably not have all of the evidence available before deciding on the sentence to impose.  Too many defense lawyers abdicate their responsibility to impact on the sentencing decision.

From my perspective as a sentencing judge on many occasions, I think I have some insight into the factors that affect sentencing.  While every judge has idiosyncrasies, and some have outright biases, and although my observations are perhaps valid only in cases where I am the sentencing judge, there are consistent realities with broad application.  In child sex offenses, what are a sentencing judge's priorities?  Let's ignore the cynical answers, like "assuring a successful retention vote," "keeping the media from chewing on your ass," "avoiding conflicts with the probations department," and "minimizing the prosecutor's whining," there really are honorable and predictable priorities.

Foremost in the mind of a sentencing judge, particularly where probation is contemplated, is the safety of the public.  How much risk is there of this defendant re-offending?  Inextricably wound around that question is another question.  Is this defendant a confirmed pedophile, or was this offense the result of unique circumstances and a situation that is unlikely to replicate?  Where does the sentencing judge find answers to these questions?  Overwhelmingly, the input comes from the presentence report.  And you can have an impact on the contents of that report!

Investigating probations officers have a limited amount of time to investigate and prepare a report.  If you have information that is helpful, provide it!  Don't make them spend needless time when you could be stroking them.  Prosecutors routinely provide a packet consisting of police reports (those objective descriptions of the investigation conducted by the professional investigators in the police department, along with accurate, in context recitals of the defendant's admissions and confessions), recommendations for sentencing submitted by the prosecutor and the case agent detective (these ought to be objective because of the ethical obligation of the prosecutor to seek justice and the professional training of the detective), victim impact statements (you know, those citizens so intent on insuring that justice is done that they were very willing to spend hours with the prosecutor, police and victim/witness advocates but refuse to talk to you so you can determine any facts the police may have overlooked or neglected to include), and the factually detailed and accurate NCIC listing of this defendant's criminal history.

You may well ask yourself what more could an overworked defense lawyer possibly add to this impressive array, but I suspect with a little imagination, something could be added in even the most egregious case or with the most offensive defendant.  Consider the following (this is not an exhaustive listing):

1. Call the investigating probation officer.  Share your expectations and goals regarding a recommendation.  Then ask what information it would take to convince the P.O. to make that recommendation.  Then do whatever you can to provide that information.

2. Ask the P.O. what you can do to assist in the investigation.  Nothing is to be gained by forcing the P.O. to obtain information you already have available by going through time wasting steps and procedures.  Why not get some stroking accomplished.

3. Have your client evaluated by a mental health professional (i.e. a psychiatrist or psychologist).  Keep these caveats in mind, however:

· What your client says td this professional is probably not privileged.  Prepare your client properly do avoid self-destructing.

· Psychiatrists tend to have more credibility, especially with those having little experience with child sex offenses and offenders.  This bias results from the psychiatrist's status as a physician.

· A psychologist with a masters degree may be an excellent therapist, but if you want others to respect a diagnosis, it probably ought to come from a Ph.D.

· Psychologists tend to use more testing than psychiatrists, which at least gives the appearance of heightened objectivity.

· Don't use a mental health expert solely on the basis of whether the opinion will be what you want to hear.  Select professionals with reputation and integrity among prosecutors, probation officers and judges (regardless of whether you feel the reputation is deserved).  You can't change the truth, but you can minimize any negative repercussions and maximize the positive attributes.  A credible middle of the road opinion may be far more persuasive than the ravings of an acknowledged madman.

4. Have your client polygraphed.  A single polygraph result may be of limited significance (and hence persuasive value) because of the effect on test results of psychological denial.  Sometimes a series of four to six polygraphs produce more meaningful results.

5. Consider penile plethysmograph testing.  While I personally consider this on a par with tea leaf reading and the Ouija board, others seem to think these results are indicative of something.

6. Character witnesses can be helpful, but don't burden everyone with the standard letters from parents, siblings, neighbors, co-workers and employers extolling the client's virtues, especially if your client has pled guilty to sodomizing a 5-year-old on a daily basis for the past year.  Be realistic.  Character witness letters that don't indicate an awareness of the nature of the charges and an awareness of the defendant's emotional makeup are virtually a waste of time.  Every judge realizes that character letters are not representative of the community's view, only the positive things a handful of interested people have said.  Use some imagination.  If you have legitimate mitigation, by all means use it.  But if you don't have it, recognize it, because you are not going to fool anyone and you'll undermine your credibility for having tried a snow job.

7. Educate the investigating probation officer.  These folks are doing their best, but they aren't lawyers and don't expect them to be.  Most have degrees in the social sciences.  Don't assume they understand the subtleties of an Alford guilty or a no contest plea.  Help them understand the issues and the sentencing alternatives available.  If the defendant is not eligible for probation, make your pitch for a mitigated sentence, not for the reasons he should be on probation.  Is your client a candidate for diversion?  Just because the prosecutor refused to make that part of the plea is no reason to abandon that option.  Read State v. Prentiss, 163 Ariz. 81,786 P.2d 932(1990) and State v. Dykes, 163 Ariz. 581, 789 P.2d 1082 (1990) and argue separation of powers to the judge.  First, you'll have to convince the judge that diversion ought to be considered.  And reasonably to succeed with that you can't expect the judge to rule on it off the top of his head.  Convince the probation officer so the issue is included in the presentence report and the judge can reflect on the issue before he goes on the bench.  If the P.O. recommends diversion, you have a shot at it, otherwise it's an uphill climb.

To be effective as an advocate, it is essential to establish and maintain professional integrity.  Don't make unreasonable requests and recommendations.  It doesn't help this defendant and it undermines your future effectiveness.  Advocate realistically.  Ask for every inference that your client is entitled to, even a colorable claim to receive.  But if you ask for the moon for a client who is not entitled to the dirt he stands in, what do you accomplish?  You may impress your client because he's probably pretty ignorant of courtroom matters.  But is that your goal?

Hopefully, whether this was a plea or a trial, you had previously analyzed your case and know the strengths and weakness of the prosecutor's case and the strengths and weaknesses of your case.  Sentencing advocacy is not really different from trial advocacy or plea bargaining.  Attack the weaknesses in the prosecution case.  Neutralize the prosecution's strengths.  Minimize the impact of the weaknesses in the defense and enhance its strengths.

The likelihood of getting an undeservedly lenient sentence for your client is slim so it's pointless to make that your goal.  Both pragmatically and ethically that is not your job.  But it is your responsibility to do everything reasonably possible to prevent your client from receiving an undeservedly harsh sentence.  If the prosecutor's legal blackmail of mandatory sentences has produced an injustice, that is an ethical sin on the prosecutor's conscience and there is nothing you can do to alter that.  So long as you have done everything you could reasonably do to prevent the injustice, your conscience should be clear.  If the injustice results from a probation officer's tunnel vision and you did everything you could think of to educate and assist the P.O. in finding truth, justice and the American way, who could honestly criticize you for a decision that was not yours to make?  If it was the rigid, biased arrogance of the sentencing judge that created the injustice, ask yourself, a) why are you in front of this asshole in the first place? and b) did you effectively advocate your client's position?  If so, don't brood at your limited power.  Often the judge can't prevent injustice even with a lot more power than you hold.

I will sum up my philosophy in graphic terms.  Shit don't happen.  It is allowed to happen.  Injustice is more often the product of indifference and inattention than of meanness and prejudice.  If you aren't responsible for protecting our client's rights, who the hell is?  Do not abdicate that responsibility to anyone.  If you stop advocating your client's cause before sentencing decisions have been made, you quit on your client and your responsibility to represent and advocate.  Not unlike the observations of my high school track coach when he told us that the only difference between a runner who quits during the first mile of a marathon and one who quits during the 26th mile is a trivial one.  Both are losers and quitters.  One of them just isn't quite as out of breath as the other.

My intention in this paper is not to insult, but to challenge.  Nor is it my intention to trivialize the extreme seriousness of the cases being considered.  My flippant attitude was intended to get you motivated, not to imply that prosecutors, probation officers, detectives, victims or judges are corrupt every time they disagree.  There is a need to protect society from some of our clients.  We can do no more than protect our client's rights and serve as his advocate.  We cannot prevent clients from being held responsible for their conduct and choices.