Careless Whisper: 1st Circuit Says Judge and Probation Officer’s Sidebar Without Defense Present is Fine – Update for February 1, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Dan Bramley was convicted of a drug-trafficking offense. He didn’t have much for an appellate attorney to work with, leading to what the First Circuit called a “rifle-shot appeal.”

advice170201Dan’s complaint was a simple one. Twice during the sentencing, the judge paused for a whispered conversation with the probation officer. Dan and his lawyer have no idea what was said, but of course this was the same probation officer who had written Dan’s presentence report. Dan argued this was an impermissible ex parte communication, and that his sentencing was prejudiced by the Court receiving and presumably relying on information Dan had neither heard nor had a chance to contest.

Last week, the First Circuit rejected Dan’s appeal in a decision we find rather troubling. The Court found such ex parte discussions between the judge and probation officer to be “fundamentally different from its communications with third parties,” because “a probation officer is simply an extension of the court itself” and indeed “functions as an arm of the court.”

The Circuit observed that the probation officer’s duty is to supply the “judge with as much information as possible in order to enable the judge to make an informed decision.” Well, of course, but that was not Dan’s complaint. His complaint was that the “information” was information that he should have been able to contest.

badadvice170201To be sure, the Court of Appeals held that probation officers and sentencing judges do not “have a free pass to discuss everything and anything off the record. To the contrary, factual information relevant to sentencing must be disclosed to the defendant.” But the appeals panel drew a distinction “new facts, on the one hand, and advice, on the other hand.” Facts have to be disclosed; advice does not. “The short of it, the First Circuit said, “is that a sentencing court has the right to confer ex parte with a probation officer to seek advice or analysis — but if the probation officer reveals new facts relevant to the sentencing calculus, those facts cannot be relied upon by the sentencing court unless and until they are disclosed to the parties and subjected to whatever adversarial testing may be appropriate.”

police170201Defendants have already realized that, like the policeman, the probation officer is not their friend. This is especially true of the probation officer who writes the Presentence Report, a document inevitably written from the perspective of the Government and typically chock-a-block with hearsay and gossip, the more lurid and derogatory to the defendant, the better.

The difficult with the blurry line between facts and advice is this: the probation officer’s advice to the judge is based on the officer’s opinion, and that opinion in turn is based on what the officer believes the facts to be. Facts may not be advice, but they certainly inform the advice. The marginal cost of requiring that all communications relating to sentencing be on the record is rather small, especially compared to the judge receiving back-channel and unchallenged “advice” from his or her own probation officer. While the officer is the court’s own employee, he or she is an employee with a crucial role in the sentencing process mandated by rule and statute.

United States v. Bramley, Case No. 15-2446 (1st Cir., Jan. 26, 2017)

– Thomas L. Root


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