Most criminal defense attorneys write blogs about their statistical successes by resolving cases without a conviction, and most attorneys spout off incredible records of success that, by any account, are simply impossible. Like most things, anyone can make up statistics or shape statistics to fit their own agenda.
The attorneys at the Berry Law Firm are very successful at getting cases dismissed or hearing verdicts of “not guilty” either to a judge or a jury. Regardless, there are still times when a client must enter a plea of “guilty” or “no contest” to a criminal charge, and a good attorney prepares the client for that possibility and educates the client on things that can be done ahead of time to get a sentence of probation or simply a fine.
The Probation Process
In cases in which imprisonment is a possibility, after being found “guilty” or entering a plea of “guilty” or “no contest”, a judge will likely order a Pre-Sentence Investigation Report (PSI Report) be completed. That report will be given to the judge a few days before the sentencing date and will contain information about the Defendant based upon facts and data collected by the probation officer assigned to draft the PSI Report.
The PSI Report in Nebraska contains the following information:
I. Facts about the current charge;
II. The Defendant’s criminal history;
III. Facts about Defendant’s family life (e.g., mother, father, spouse or significant other, children, etc.);
IV. Facts about the Defendant’s employment history (e.g., where the Defendant has worked, etc.);
V. Facts about the Defendant’s educational history (e.g., where the Defendant went to high-school, college, etc.);
VI. A statement from any victims of the crime;
VII. A statement from the Defendant about the crime if the Defendant chooses to provide a statement;
VIII. Any information submitted by the Defendant or his attorney for the judge to consider (e.g., letters from friends and family, mental health evaluations, medical records, etc.).
In order to be considered for probation, and in order to have the judge consider favorable information within the PSI Report, it is imperative that a convicted Defendant do several things.
A Mental Health Evaluation or a Drug and Alcohol Evaluation
Many crimes involve drugs or alcohol. If a defendant has been convicted of a crime involving drugs or alcohol, and imprisonment is a possibility, it is important that a Defendant obtain a drug and alcohol evaluation.
Theoretically, in order for a judge to impose a sentence of probation, the judge must believe there is something “wrong” with a Defendant that a sentence of probation can fix. As an example, if a person has a history of committing criminal acts while abusing cocaine, a judge can require, as part of a sentence of probation, that the person obtain treatment and abstain from cocaine use. This helps ensure that the person will not commit any criminal acts in the future.
Restated, if a Defendant does not have any problems, then there is no excuse for the person’s criminal actions; if there is no excuse for the criminal actions, the judge cannot “fix” the Defendant, and if the judge cannot fix the Defendant, the only sentence the judge will likely impose is time in prison.
In cases involving drugs and alcohol, the Defendant should get an evaluation and then have a copy of the evaluation sent to his or her attorney to provide to the probation office or the Court.
When meeting with the evaluator, it is imperative that a Defendant is completely honest about the facts of the underlying case, prior criminal history and substance abuse. In the past, people have been given sentences of imprisonment because the facts in the evaluation do not match the facts in the court’s file, etc.
Letters to give to the Judge
A Defendant who is charged with a serious crime should start collecting character letters showing that the Defendant is a good person, and the crime for which the Defendant has been convicted is a aberration of the Defendant’s generally good character.
A person convicted of a crime can have friends and/or family write letters on his or her behalf, but generally speaking, the letters should only be about one page long.
Factors a Court Considers when Determining an Appropriate Sentence
Nebraska law requires that a Court consider several factors in determining whether a sentence of probation is appropriate for a person convicted of a crime. The factors are provided:
1. Risk of additional criminal conduct;
3. A lesser sentence will depreciate the seriousness of the offense;
4. The crime neither caused or threatened serious harm;
5. The offender did not contemplate that his crime would cause or threaten serious harm;
6. Substantial grounds were present tending to excuse or justify the crime, though failing to establish a defense;
7. The offender has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the crime;
8. Circumstances unlikely to reoccur;
9. Character and attitude of the Defendant;
11. Imprisonment would entail excessive hardship on dependents.
In short, an attorney should make certain that the information received by the Court shows that a Defendant is a good candidate for probation for the above-noted reasons.
The letters from friends and family should be formatted to address the above listed criteria.