The U.S. District Court for the Middle District of Pennsylvania has amended its Local Criminal Rules significantly to expand discovery at a criminal sentencing. Middle District Local Criminal Rule 32.1, which became effective December 1, requires mutual discovery between the prosecutor and defense counsel of all material and documents supplied to the probation officer who writes an initial report to the judge about the defendant’s criminal conduct involved in the case. We support this initiative and call upon the Western and Eastern districts to adopt it.

Civil practitioners who read this may ask, “What is the big deal? If it’s something the judge will see and use, opposing counsel should see it.” Not necessarily so. Under the prior rules in the Middle District, and under the current rules in the Eastern and Western districts of Pennsylvania, there is no requirement of mutual discovery at sentencing. This is not the product of some conspiracy on the part of the government; it is the way the local rules were drafted. There is very limited discovery in criminal cases in general, and the sentencing phase reflects that philosophy.

Discovery at sentencing has long been the stepchild of the criminal process. Of all federal criminal cases filed, more than 90 percent result in convictions. At least 85 percent are the result of guilty pleas. On a numerical basis alone, the sentencing is important. The federal sentencing guidelines complicate the matter further. Although the application of the guidelines is not mandatory, the judge is required in all federal sentencings to first arrive at a series of calculations based upon the type of offense, and adjustments to the statement of the offense, such as the leadership role of the defendant, the type of victim, and the amount of loss in a fraud or tax case. (There are numerous others.) These calculations are compiled by the probation officer for the judge from material initially supplied by the prosecutor. Defense counsel may file pleadings to explain the defendant’s role, but the major description of the offense comes from the prosecutor, who has possession and control of the vast material of the investigating agencies.

In the Eastern and Western districts, there is no obligation for the prosecutor to supply a copy to defense counsel of what the prosecutor provides to the probation officer. This information may be in written statements of co-conspirators, or witnesses or other documents defense counsel has never seen, especially where there is a guilty plea prior to trial. Thus, defense counsel may not know how the probation officer arrives at his or her calculations, and may be hard-pressed to rebut them, when the report is finally disclosed. There is no requirement for defense counsel to copy the prosecutor on what he or she provides the probation officer. At this stage of the proceedings, this omission has little effect on the procedure, as the prosecutor has all the investigative material in his or her control that is necessary to supply the crucial facts of the defendant’s conduct.

This element of surprise is removed by the Middle District’s amended Rule 32.1. Both parties must serve each other with material they provide to the probation officer. The amended rule goes even further. The prosecutor is required to submit a comprehensive statement of offense conduct required by the sentencing guidelines. This is the prosecutor’s formal statement of the entire criminal conduct of the defendant, which often includes conduct far more extensive than charged in the indictment. The prosecutor is also required to list what the prosecutor believes are the adjustments to the conduct that can increase the severity of the sentence. Although the probation officer may recommend to the judge changes of the prosecutor’s statement of the offense and adjustments, the defendant is on notice early in the process of what is on the table and can prepare to deal with it. A side benefit of these disclosures will enable defense counsel to file a specific request for favorable information pertaining to the statement of offense and adjustments pursuant to Brady v. Maryland. Specific requests for Brady material at sentencing are greatly underutilized by defense counsel, partly because of the lack of disclosure by the prosecutor.

The Middle District’s amended procedure is a great step forward. We understand the U.S. attorney for the Middle District played a part in developing the procedure in the new rule. We urge the district courts of the Eastern and Western districts to follow suit, and amend their own local rules to follow suit. All parties and the court will benefit in the pursuit of justice.

Commentaries appearing from the Editorial Board are produced by The Legal Intelligencer‘s Editorial Board. The opinions are voted on and passed by a majority of the members of the board. They do not necessarily reflect the opinions of every member of the board, or of the newspaper. •

EDITORIAL BOARD

Jeremy D. Mishkin
Chairman

Albert S. Dandridge III
Michael J. Engle
Richard Feder
Shira J. Goodman
Gregory Harvey
Claudine Q. Homolash
Jeffrey P. Lewis
Nathaniel Metz
Albert Parker
Daniel Siegel
Louis Sirico
John Soroko
Peter Vaira
Raymond M. Williams
Alan L. Yatvin

The Editorial Board of The Legal Intelligencer is composed of members of the legal profession. They serve voluntarily and are independent of The Legal Intelligencer. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. Members of the legal community are invited to contribute signed op-ed pieces.