09 January 2005

Sentencing Report Cannot Be Given to Defendants

Amanda Butler, of Crescat Sententia fame, writes to ask some questions about the sentencing guidelines post of a couple days back:
(1) (a) Just why is it that the defense attorney cannot give a copy of the presentencing report to his client? (b) Can he read very slowly so the client can transcribe his own copy? (c) What is the intent of that rule?
(a) When I started practice it was common to send a copy of the presentence report to the client. Because of the widespread use of regional jails some lawyers I knew would send the report to the client and write him that he should call next Wednesday afternoon to go over anything which concerned him. I never cared to do it that way, but I sent my clients copies ahead of time so they could read them before I came to the jail.

Then, in 2003 the Attorney General issued an opinion which held:
"A defense attorney who copies a defendant's presentence report or provides the original or a copy of such report to the defendant is in violation of 19.2-299. Virginia code sec. 19.2-299 authorizes defense counsel to advise and review the contents of the report with the defendant."
Here is Va. Code sec. 19.2-299. The statute stands entirely mute as to the issue of whether the client is entitled to a copy of his presentence report. How then did the Attorney General get there? As best I can figure this section of 19.2-299(A) must be the basis:
The probation officer [shall] furnish[] a copy of this report at least five days prior to sentencing to counsel for the accused . . . for [] permanent use . . . The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall have been advised of its contents . . . The report of the investigating officer shall at all times be kept confidential by each recipient.
If you squint really hard, use tons of desire, turn your head at just the right angle, and chop the portions underlined above away from the rest of the section it's possible to stretch that to mean "The defense attorney gets a copy, reads it to the defendant one time, and after the sentencing hearing the defense attorney must never again speak of this taboo subject." (the counsel for for the accused gets a copy, the client is advised of its contents, afterwards counsel must keep the report confidential) Ya' gotta believe . . .

Of course, there are all sorts of problems with that interpretation. First, the segments are not together as a discrete group and even if they were do not prohibit the defendant from receiving a copy of his sentencing report. The first is a guarantee that an agent of the defendant will receive a copy of the report. The second is a guarantee that the defendant will be allowed to properly prepare for a sentencing hearing. The third is a guarantee that the personal information gathered about the defendant will not be available to the general public. Remember, it is a basic, long-standing principal of the law that "Tout es que la loi ne defend pas est permis" (that which is not prohibited is allowed).

Second, if the defendant chooses to represent himself the AG's opinion goes right out the window. As his own counsel the defendant would have to receive the report at least five days before the hearing. He would have to have the report in hand to properly cross examine the probation officer who prepared it. As well, he would be allowed "permanent use" of the report.

Third, the attorney is the defendant's agent. By delivering the papers to him the government is delivering them to the defendant just as it is when it delivers discovery replies, motions, briefs &cetera. There is a duty to turn those papers over (at the very least if the client requests them). It's my understanding (though I must admit I have not read the ethics opinion) that the Bar punted on this and said that since the AG's opinion had the force of law it would not contradict it with a LEO.

Fourth . . . Okay, I admit I don't have a fourth off the top of my head. However, 1-3 came to me without even having to think about them too much. That said, I'm sure with research there are probably reasons 4-6. There may even be reasons 7-10.

The difficulty is that the Legislature is assumed to know about an AG's opinion and therefore it is given force of law if the Legislature does not pass legislation overturning it (and you thought the Executive branch wasn't supposed to unilaterally make law). The judges have fallen right into line and I get a cover sheet with each of my clients' presentence reports telling me that the Chief Judge of the Circuit orders me not to turn over the report (I don't have one in front of me but that's the general gist). They also usually come with a 2003 letter which states:
Attorney General Jerry W. Kilgore recently issued an official advisory opinion regarding the above captioned statute [19.2-299]. It was his opinion "that it is a violation of 19.2-299 for a defense attorney to copy a defendant's presentence report or provide the original or a copy of such report to the defendant. Virginia code sec. 19.2-299 authorizes defense counsel to advise and review the contents of the report with the defendant."

In view of this opinion several Circuit Courts are requiring a cover sheet, such as the one attached, to accompany all presentence reports sent to defense counsel.

Please advise all districts of this Attorney General Opinion, Chief probation and Parole officers should consult with their Chief Circuit Court Judge regarding this matter.
Consequently, clients do not get the presentence report.

(b) The presentence report is too long for a defendant to write down the whole thing unless I want to spend days at the jail.

(c) Intent? I have no idea. In most cases the majority of the information came from the defendant's interview with the probation officer to begin with. In going over the report I'm obligated to give him every bit of information in it and if he calls me two years later I will be still be obligated to verbally give him every bit of the information. He just can't have the actual papers.

It's a silly inconvenience. If I could think of how it could be interpreted as a "tough on criminals" issue I'd say it was political but it just seems to far removed for that. Anybody out there got any ideas?

To Sum Up: It's a silly rule which is not supported by the statute but I still have to follow it.


Windypundit said...

Wow. It's not as common as you'd think, but this really does seem like an exercise of power for petty power's sake. It seems like the AG saw a chance to screw the opposition and took it. It doesn't help him in any way, but it makes your life harder and he enjoys that. I hate people like that.

So, not that I wish to encourage you to civil disobedience, but what bad thing happens to you if you give your client a copy?

Ken Lammers said...

Because the Chief Judge signed off on it I could be found in contempt of court. I could be subject to bar sanctions for not obeying the law.

I don't see any punishment per the statute but I try never to underestimate the infinite creativity of the Commonwealth's prosecutors. They might even be able to find something to tag me with. I'm not sure why a prosecutor would even care but if they did I'm sure they could find something.

Windypundit said...

"I'm not sure why a prosecutor would even care but if they did I'm sure they could find something."

Isn't there supposed to be some rule that prevents that? It's called "Rule of" something...something with an "L", I think. Rule of Lint? No...Rule of Lard? No, that's not it either. I'll get it in a minute...

Ken Lammers said...

Ah, yes, the Rule of Lenity.

You must understand that the appellate courts in Virginia hold this cherished, nay, hallowed rule in such high regard that they do not wish to tarnish it through actual use. So I fear that they would not allow its use in a case involving a mere mortal such as myself.

Blonde Justice said...

It's the same here. We get sentencing reports and read them to our clients, but they cannot see them.

For a while at least one judge was interpreting it to say that even defense counsel has to read it and then give it back, but we enlightened her on that.