A good woman nearly went to prison the other day because she rubbed the person who interviewed her for a presentence report the wrong way. Who gave these unsworn nabobs the keys to the prison?
My client was in a horrible car accident in the summer of 2007. Two of her children died in the crash. My client and her surviving child were horribly injured. The occupants of the car with which she collided were injured. When my client's blood was drawn at the emergency room, it reflected an elevated blood alcohol content. When her blood alcohol was translated into terms that make sense in the courts, it was high, too high. It read a .12. The legal limit is .08.
So the state threw the book at her. Two counts of manslaughter. Three counts of risk of injury to a minor as to her three children. Two counts of assault as the occupants of the other car. By the time the case was ready for trial, there were eight counts in all.
The state wanted this woman in prison. That seemed inconceivable to me. We pleaded with one judge after another for a suspended sentence. The mad shadow of Mothers Against Drunk Driving hung over every proceeding.
At trial we attacked the blood alcohol result as a false positive, a reflection of poor testing at the hospital and the various chemicals produced in the client's body as a result of her trauma: she suffered a lacerated liver, broken bones and damaged muscle tissue.
The state toxicologist told the jury she must have had the equivalent of nine or so beers in the hours before her accident. The jury told the toxicologist and the state there were plenty of reasons to doubt the alcohol related charges. The woman was acquitted of all counts but one, risk of injury to a minor.
The risk of injury counts were supported by two claims. Either the woman was driving while impaired, or she failed to have her children in seat belts or booster seats. When the jury rejected all of the alcohol related charges, that left only one set of facts to support the conviction: The woman's six year old daughter, who weighed 53 pounds, was in a seat belt, but not, as the law requires, a booster seat.
Come sentencing day, my client faced up to ten years imprisonment for this simple and tragic omission. The state would not agree to a disposition not involving prison time, even after its driving while intoxicated theory had been laid to waste.
The trial court ordered a presentence report, and we dutifully appeared with our client. We instructed her not to discuss the offense for which she had been convicted or her criminal trial. We explained the presentence process as merely a meeting with the equivalent of a social worker. Be truthful about your past and present, we told the client.
The meeting went well, or so we thought. A day or perhaps two days before sentencing a copy of the presentence report arrived in our office. It was a disaster.
The probation officer first appears to have done little more than regurgitate the arrest warrant when describing the offense conduct. Never mind that the client had been acquitted of all but one charge. The writer informed the court that the woman was not remorseful for her reckless driving or role in the death of her child. The client adopted the hope we gave her that her conviction would be overturned on appeal. This was too much for the probation officer: Send her to prison, was the conclusion.
The state lapped up this shocking swill like a drunken British soldier celebrating the Stamp Act. What's more, the trial court approached sentencing with this report as the framework for what justice required.
We were able to demolish this silly edifice at the sentencing hearing. My client is not in prison. But I am left with a renewed conviction that we need sentencing quidelines in serious criminal cases.
If courts are to sentence folks to prison it should make factual findings on the record based on competent evidence. The presentence report in this case was not competent. It was garbage. Our clients deserve better.
Reprinted courtesy of the Connecticut Law Tribune.
