Dr. Marc Blatstein Blog, Medical, Preparation, Sentence Mitigation

THE 6 AM SEARCH WARRANT – YOUR WORLD SPINS – WHAT DO I DO NEXT?

 

PREPARATION – BEYOND THE LEGAL

THE NUANCES OF YOUR PERSONAL BACKGROUND – ARE ‘NOT PART’ OF A TRADITIONAL DEFENSE.

A

A

ANO ONE  WAKES UP ONE MORNING INTENDING TO BREAK THE LAW – AND PRISON.

 

WHILE THINKING, THAT’S WHERE I DO NOT WANT TO GO

 

1st, Take A Breath: Admiral McRaven’s Lessons to Live By

Inspired by leaders from Mandela to a young girl in Pakistan; Malala (shot in a bus for going to school and went on to win the Nobel Prize) should leave you with hope – to “NEVER GIVE UP.”  – Dr. Marc

 

TOPIC OUTLINE:

I) RUMORS, A TARGET LETTER, OR A PERSONAL VISIT BY THE FBI, YOU NEED LEGAL REPRESENTATION
II) HIRING THE RIGHT ATTORNEY REQUIRES INTERVIEWING MORE THAN ONE: YOUR FUTURE, YOUR LIFE
III) PARTICIPATE IN YOUR DEFENSE (HOW?)
IV) THE MOST IMPORTANT PERSON YOU’LL MEET: THE OFFICER WHO CONDUCTS YOUR PSI
V) HELP YOUR LAWYER, (PSI) PROBATION OFFICER, JUDGE, PROSECUTOR, AND OTHER STAKEHOLDERS YOU HAVE YET TO MEET.
VI) SENTENCING DAY PREPARATION. YOUR ALLOCUTION, A REALISTIC SENTENCE REQUEST UNDER THE GUIDELINES, AND PLACEMENT REQUEST ALL PREVIOUSLY REVIEWED AND AGREED UPON WITH YOUR PROBATION OFFICER AND POSSIBLY THE PROSECUTOR (OR AT LEAST THEY WILL NOT RAISE OBJECTIONS).
VII) REQUESTING YOUR BOP PLACEMENT IS A 3-STEP PROCESS

FEDERAL JUDGES AGREE: PREPARE FOR SENTENCING THE FIRST DAY YOU AND COUNSEL MEET.

-Federal Judge Patrick J. Schiltz

“It’s surprising how many otherwise competent attorneys ‘punt’ at the sentencing hearing.”

a

-Federal Judge Robert N. Scola

“Don’t wait to think about sentencing advocacy,” since 99 percent of federal criminal clients will be facing sentencing, start preparing the case for sentencing early on.

I) RUMORS, A TARGET LETTER, OR A PERSONAL VISIT, YOU NEED LEGAL REPRESENTATION

  • FACING THE ALPHABET AGENCIES AS YOU OPEN YOUR FRONT DOOR ONE MORNING IS SURREAL AND TERRIFYING, ALL OF WHICH IS NORMAL.
  • BY NOW, THE DEPARTMENT OF JUSTICE AND THEIR CASE AGAINST YOU IS MOSTLY COMPLETE, APPROACHING A 98% CONVICTION RATE, AND
  • FEDERAL CASES USUALLY RESULT IN PRISON.

II) HIRING THE RIGHT ATTORNEY REQUIRES INTERVIEWING MORE THAN ONE: IT’S YOUR FUTURE, YOUR LIFE

  • HIRING A LEGAL TEAM DOESN’T JUST MEAN THEY HAVE EXPERIENCE; THEY ALSO NEED A PROVEN TRACK RECORD OF SUCCESSFULLY DEFENDING CASES LIKE YOURS.
  • THESE CHOICES YOU MAKE TODAY WILL HELP OR HINDER YOU THROUGHOUT YOUR SENTENCE.
  • THIS REQUIRES ASKING THE RIGHT QUESTIONS: THERE ARE 14-15 QUESTIONS
  • CHOOSE THE RIGHT ATTORNEY, IS ONE WHO
    1. Practices Federal Criminal Defense in a Federal Court and
    2. Has experience in cases like yours.
  • WHEN ASKING THEM HOW MANY ‘TRIALS’ OR ‘APPEALS’ HAVE THEY WON. ⇒ Just meant to lighten the mood.⇒⇒⇒

III) PARTICIPATE IN YOUR DEFENSE (HOW?) Heartstrings-or-Heartburn-A-Federal-Judge-on-the-Rite-of-Allocution

  • RUMORS OR TARGET LETTER: IF YOU KNOW (OR FEEL) THAT YOU ARE PARTIALLY GUILTY, TELL YOUR ATTORNEY. THIS WILL SAVE YOU LOTS OF $$ AND POSSIBLE PRISON TIME.
  • TRIAL, PLEA OR COOPERATION 5K1.1 (This is up to the Government)

IV) THE MOST IMPORTANT PERSON YOU’LL MEET

  • THE PROBATION OFFICER WHO CONDUCTS YOUR PRESENTENCE INTERVIEW AND HAS SWAY WITH YOUR JUDGE
  • THEY HAVE ‘NO TIME’ AND ARE OVERWORKED – MAKE THEM YOUR FRIEND AND ADVOCATE. HOW? 
  • WHERE AND HOW LONG YOU WILL SERVE – DEPENDS ON “YOUR” INTERVIEW PREPARATION
  • IF YOU PROVIDE EVERYTHING THEY REQUESTED, ORGANIZED AND SPELLCHECKED 1-2 WEEKS BEFORE YOUR INTERVIEW.
    •  THEY
      • MAY APPRECIATE YOUR EFFORTS AS YOU HAVE TAKEN THIS SERIOUSLY
      • MAY APPRECIATE THE FACT THAT YOU UNDERSTAND THAT THEIR TIME IS LIMITED
      • THIS HAS ALLOWED THEM TIME DURING THE INTERVIEW TO PERSONALLY GET TO KNOW WHO YOU ARE AS A PERSON, ASKING ANY REMAINING QUESTIONS THEY MAY HAVE.
  • THE PROBATION OFFICER NOW WRITES THE FINAL PROBATION REPORT AFTER THEIR INVESTIGATION,
    • THE PRESENTENCE REPORT ACTS AS A REFERRAL FOR
      • Security Level Requirements
      • Medical and Mental Healthcare Needs
      • Psychology Programs – Limited Availability
      • FSA Programming, and Criminogenic Needs, Risk Assessment
      • The Bureau of Prisons (BOP) uses the same PSR for prison placement. (STAKEHOLDERS YOU’LL NEVER MEET)
      • Probation again uses the PSR during Supervised Release TO PROFILE YOU BEFORE YOU MEET.
      • Lastly, this same PSR becomes a permanent part of your record, otherwise known as the Inmates Bible— “the gift that keeps on giving.”

 

V) HELP YOUR LAWYER, (PSI) PROBATION OFFICER, JUDGE, PROSECUTOR, AND OTHER STAKEHOLDERS YOU HAVE YET TO MEET – KNOW WHO “YOU” ARE. HOW?

  • TAKE THE TIME TO DRAFT A WELL-WRITTEN PERSONAL NARRATIVE, RELEASE PLAN, ALLOCUTION, AND REQUEST SPECIFIC CHARACTER REFERENCE LETTERS.
  • A RELEASE PLAN
  • THE NARRATIVE
    • YOUR AUTOBIOGRAPHY AND THE EVENTS THAT LED TO TODAY 
    •  DO YOU HAVE EXTENSIVE MEDICAL CARE NEEDS,
      • For a person facing custody, preparing for your comprehensive medical history long before the presentation interview is critical to providing the court and BOP with your medical background as a baseline to refer to.
      • When it comes to providing medical care to individuals with unique medical conditions while in the Bureau of Prisons (BOP), it is crucial to have a comprehensive medical history that includes all medical records, including reports of surgeries (including pathology reports), diagnostic X-rays, CT, MRI, ultrasounds, EEGs, EKGs, and PET scans (Reports on CD or Flash Drives) in your PSR.
      • Include all recent blood tests, prescriptions (Drugs and Medical Devices), hospital records, and treatment plans from their treating physician.
      • Medications. The BOP has a Formulary list of generic drugs, which you will get immediately if they are noted in your PSR, and a
      • Non-Formulary is a list of generic you may not get for 6 – 18 months, so your physician needs to write their report in a specific way. Still, the BOP is not required to provide that medication. It all depends on how the physician’s note is worded.
      • Last are the drugs that are not available. This requires the patient, physician, and attorney to review the available medications and possibly have the physician appear at sentencing. 
      • The BOP ignores all court orders requiring a specific medication or medical treatment, but if one is noted in the J&C, that opens another door.
      • To ensure that the patient/inmate receives the appropriate care, it is essential to gather all relevant documentation and contact information for physicians, including their name, phone number, email, and address.
      • It is advisable to prepare thoroughly for The Presentence Interview, especially if there are concerns about medical care from the patient, their attorney, or treating physician. Doing so makes it possible to plan strategically and ensure the patient-inmate receives the necessary care during their time in the BOP. Still, remember, there are no guarantees once incarcerated, so attention to detail at the start is in your long-term interest.
    • Why is this detail important?

JUDGES UNDERSTAND THAT CRIMES DON’T HAPPEN IN A VACUUM. THEY ALSO KNOW THAT THE;

  1. THE DOJ WANTS A CONVICTION
  2. THE PROSECUTOR WANTS JAIL TIME TO PROTECT SOCIETY
  3. YOUR ATTORNEY IS PAID TO SAY NICE THINGS ABOUT YOU AND KEEP YOU OUT OF PRISON.
  4. THE ONE PERSON THAT THE JUDGE KNOWS NOTHING ABOUT IS YOU, THE DEFENDANT.
    • IF YOU DO NOTHING, THE OFFICER CONDUCTING THE PSI WILL CONVEY THIS TO THE JUDGE, AND YOU’LL BE SENTENCED ON THE 4 CORNERS OF YOUR INDICTMENT.

YOUR NARRATIVE CAN CHANGE YOUR LIFE. IF YOU TAKE THE TIME TO WRITE YOUR LIFE STORY, INCLUDING THE GOOD, THE BAD, AND THE UGLY OF YOUR LIFE THAT BROUGHT YOU TO THE POINT OF BREAKING THE LAW, WITHOUT MAKING EXCUSES AND ACCEPTING RESPONSIBILITY, WHILE HAVING REMORSE FOR THE VICTIMS HARMED, THESE ARE STEPS IN THE RIGHT DIRECTION.

THEN, HAVE A HEARTFELT CONVERSATION WITH YOUR PROBATION OFFICER DURING YOUR INTERVIEW; THIS MAY OPEN THE DOOR TO THE JUDGE WANTING TO SPEAK WITH YOU.

    • THE ALLOCUTION, YOUR CONVERSATION WITH YOUR JUDGE. THIS COULD HELP YOU IF IT’S TRUE AND HURT IF YOU’RE LYING.

Judge Mark Bennett, My basic principles of allocution include:

(1) be sincere.

(2) discuss what “taking full responsibility” means;

(3) acknowledge that there are victims (e.g., even when the PSR indicates “no identifiable victim,” as it does in most drug cases);

(4) an understanding of how the crime affected the victims;

(5) express genuine remorse;

(6) a plan to use prison or probation time productively;

(7) a discussion of why the defendant wants to change his or her criminal behavior; and, perhaps most importantly, a genuine desire to learn a specific trade and a request to go to one particular Bureau of Prisons institution that offers that trade can sometimes be beneficial.

(8) information that helps humanize the defendant and the defendant’s role in the crime.

VI) SENTENCING DAY PREPARATION,

  • YOUR ALLOCUTION (Your conversation with your judge at sentencing),

A Real-Life Example In This Video:

The two things that Sam Bankman-Fried (SBF) should have done,

  1. Accept Responsibility – Don’t Blame ‘Others.’
  2. Express Remorse – Judge Kaplan said he expressed “never a word of remorse for the commission of terrible crimes.”
  3. His attorneys appear similar in performance to Diddy Combs in that they are letting high-income type-A personalities dominate their defense.

Assumptions: Something You Never Want To Do, Diddy Combs.

  1. When you choose to surrender, you will be granted bail and fitted with an ankle bracelet equipped with GPS. This is an impossible promise, guarantee, or assurance for anyone, regardless of who you are.
    • Your attorneys should avoid making promises or giving false assurances. Their role is to provide honest and often difficult truths rather than simply agreeing with you, the defendant.
    • This is crucial because predicting a judge’s decision is highly uncertain.

COUNSEL HAS DISCUSSED WITH THE OFFICER CONDUCTING THE INTERVIEW,

  • REALISTIC SENTENCE LENGTH REQUEST UNDER THE GUIDELINES AND YOUR PLACEMENT REQUEST
  • AND
  • POSSIBLY THE PROSECUTOR (OR AT LEAST THEY WILL NOT RAISE OBJECTIONS).
  • YOUR ALLOCUTION IS NOW PART OF YOU WHERE YOU’VE ACCEPTED RESPONSIBILITY AND HAVE REMORSE FOR THE VICTIMS HARMED, AND IF THERE IS GOING TO BE RESTITUTION,
    • IF YOU HAVE THE FINANCIAL MEANS TO PAY, PLEASE PAY IT – NO EXCUSES. THE JUDGE WILL HAVE ALL OF YOUR $$ RECORDS.
    • IF YOU CAN’T PAY IT IN FULL, EVEN 1% OR LESS SHOULD BE CONSIDERED AS THE COURT KNOWS YOUR FINANCIAL BACKGROUND.
  • THE LENGTH OF THE SENTENCE AND A PLACEMENT REQUEST ARE BASED ON REASONS: MEDICAL, FSA PROGRAMS, OR OTHER, AND A SINGLE PLACEMENT REQUEST PACKET FOR THE JUDGE PROVIDING THAT DOCUMENTATION.

 

 

VII) REQUESTING YOUR BOP PLACEMENT IS A 3-STEP PROCESS