OCTOBER D87 - Voice For The Defense Online

Presentence Investiaation Reoorts,Probation Officers 6nd "~inhn~".in the Federal Systemby F. R. "Buck" Files, Jr.IntroductionPurpose of the ArlieleIn Tyler-a city with a population of approximately80,000-there are some 400individuals licensed to practice law and lotsof courts in the Smith County Courthousein which they can practice: A Court ofAppeals, four District Courts, two CountyCourts-at-Law and a County Court.Only 200 yards to the west of the CountyCourthouse is the Federal Building wherethree United States District Judges, twoMagistrates and a Bankruptcy Judge areheadquartered. Yet, only a few of thelawyers who are so very comfortable in thetrials of State criminal cases appear withany regularity in Federal criminal matters.Wade French-Chief United States ProbationOfficer for the Eastern District ofTexas-and I have visited on a number ofoccasions about the problems which lawyers,who are themselves unfamiliar withthe Federal system, face when they comeover to represent defendants charged withFederal offenses. We decided to combine,conspire, confederate and scheme in orderto put something together for the Texaslawyer who spends most of his time in theCounty Courthouse and who comes to theFederal Courthouse on an irregular basis.This article has to do with the importanceof the Presentence InvestigationReport (especially as we begin our "newera" in the Federal criminal justicesystem), the problems which can arise atsentencing and the help which a UnitedStates Probation Officer can give to thedefendant's lawyer as he represents thedefendant.Mr. French has prepared a paper havingto do with the relationship between thedefense lawyer and the United States ProbationOfficer.It is our hope that these articles-takenF. R. ( ~ ~ ~ i kl jr. ~ j has ~ bee,, , in theprivarepmcrice of law in Tylersince 1970and is 1uith thejirm of Bain, Files, Allenand Caldwell, P. C. Hispracrice is limiredta the represenrafion of defndants in criminaland civil rights matters. Before enteringprivate practice, he prosecured anddefended rnilimr~ courts-martin1 for theU.S. Maritae Corps (before rhey had aJAG) and served as a Fifst Assistant CpiminalDistrict Attorney iti Smith Coruzty.Cerrifed as a criminal law specialistsince 1975 and a charter member of theTeus Criminal Defense Lawyers Association,he is a fiepent lechtrer at CLEcourses sponsored by the State Bar ofTe.~as and the WLP.together-willyou.be of some assistance toThe Reality of Criminal PracticeIn the Federal SystemFor every John DeLorean and his entrapmentdefense, there are thousands ofJohn Snerds in Federal criminal cases whoare simply caught in the. trap. As JudgeRives wrote in Smith v. Unifed Stales,". . . every lawyer engaged in defendingcriminal cases knows that often a findingof guilt is a foregone conclusion, and thatthe real issue centers about the severity ofthe punishment. "'For these John Snerds, "winning" hasbeen getting probation instead of confinement,being permitted to surrender ratherthan being transported in chains to the confinementfacility, getting a shorter sentencerather than a longer sentence, or "doingtime" in a more comfortable rather thana less comfortable facility.If the defendant is to win, his lawyermust-at the earliest time-heein " to workwith the probation officer assigned to thecase, We find this admonition in Moore'sFederal Practice:"For the overwhelming majority ofdefendants in Federal courts, thenature of the punishment is the onlyissue in the case. In view of the enormityof the consequences to the defendant,it is sometimes shocking tosee the perfunctory manner in whichdefense counsel discharge theirsentencing function. The investigationand preparation of mitigatingfactors, both in terms of the facts ofthe offense and of the defendant'spersonal history, call for no lessthoroughness and resourcefulnessthan the preparation of a trial. Onecommentator has opined that anythingshoi? of this amounts to ineffectiveassistance of connsel. " (Enphasisaddedj2October 1987 1 VOZCEfor the Defense 5