Question: What do Probation Officers do and why are they important? How many times does a defendant meet with a Probation Officer?
Answer: After a defendant pleads, a Probation Officer (PO) is assigned to the case. The PO calls the defendant’s attorney and schedules an interview (always insist upon having your attorney present at an interview). Most, if not all, of the interview deals with family, employment history, immigration, health issues, etc. It is a good idea to have the information at your fingertips so that there will not be long pauses between answers. A section of the interview relates to the defendant’s budget, living expenses, rent, etc. Be careful. You do not want to say that you earn $300 a week, only to state later that your rent is $1,500 a week. Your budget should be in line with your wages.
Rarely will a PO ask how much you paid your lawyer, but be prepared. As the lawyer I would personally intervene and politely tell the PO that it is none of their concern. They respect that, but generally speaking the question never comes up. It is a delicate matter and almost all probation offices respect that.
The offense is also described in the report. The PO receives information about the offense from the government, either the agent or the prosecutor, and their description is pretty straightforward. The PO will ask if the defendant wishes to make a statement. Some attorneys permit the defendant to say something, rather short and pithy. For example, “I drove the car with the cocaine to the meeting place.” Most lawyers simply tell the PO that they will write an affidavit spelling out the defendant’s participation. I like to have the defendant make a statement at the interview so the PO feels the defendant is confiding in him or her and is not afraid to say the wrong thing, because there is no “wrong” thing. But your lawyer should review this with you before you say something you are not supposed to.
Once the interview is over, the PO will ask you to sign some papers authorizing them to receive financial information, and asking for family contact numbers to confirm what has been said. The defendant should alert family members that the PO will call and should also discuss what the defendant has said to the PO. You do not want to have your family or friends contradict what you have said.
The effect of the report is relevant and you want to establish as cordial a relationship as you can with the PO. You certainly do not want to get on their bad side. However, judges also have no problem ignoring the PO’s recommendations. Judges see probation officers differently form prosecutors, whose words mean a great deal. But do not sell the probation officers short. The judge will rely on hard information contained in the report.
After the interview is over, the PO will give a draft of the report to the defendant and his or her lawyer for review. The defendant can then make objections, corrections or additions before the final draft is submitted to the court. The PO will either agree or disagree to the objections, corrections, etc. to the final draft. This report also contains the guideline calculation, which can be objected to, and actually forms the basis for some of the more heated discussions, since the guideline calculation is the point of departure for all judges.
The defense lawyer then submits his own presentence report highlighting the defendant’s most favorable qualities. I usually insert pictures to help illustrate my point. If I speak about the defendant’s family, I include a family picture. If I refer to the small house the family lives in, I submit a photo of the humble building. If my client lives in a small village, I include pictures of the village. If I say the defendant is a good son or daughter, I include a picture of the defendant with his or her parents. I also include one or two photos of the defendant in informal situations, i.e. at a family gathering, so that the court sees the defendant living a normal life. A defendant was not always a prisoner, but rather, had a rich life, with family and friends, and participated in events that all free people participate in. The defendant should be humanized as much as possible and photos are worth a thousand words.