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