Now that Elizabeth Holmes has been convicted she will sit for a Pre sentence Interview (PSI). The pre sentence interview is a document that will influence the life of every individual who has been convicted of a felony in the federal criminal justice system. Unfortunately, individuals don’t learn about the process that leads to the PSI until it’s too late to influence the outcome.
Elizabeth Holmes–or any federal defendant–should understand:
1: The process that leads to the PSI.
2. The steps an individual can take to influence the PSI’s outcome.
3. The PSI document and its ramifications.
Process Leading to the PSI: After an individual has been convicted of a felony in federal court, the judge will order federal probation to complete a Presentence Investigation Report (PSR).
In this case, this PSI will document the life history of Elizabeth Holmes, who, as we know, was recently found guilty of fraud for her role in leading Silicon Valley based Theranos. How soon will it take for Elizabeth Holmes to sit for her probation interview? The meeting usually takes place 30-90 days after the conviction. Sometimes, that initial meeting with a probation officer can take place within a week of the conviction.
Where does the pre sentence investigation begin?
Since Ms. Holmes is in the community, the federal probation officer will likely visit the defendant in his residence. Alternatively, the federal probation officer may initiate the investigation at the office of federal probation, or at the office of the defense attorney. We’ve worked with far too many defendants who describe horror stories about their being unprepared for the Pre sentence Investigation. As a consequence, their sanctions become much more severe than could have other wise been the case. Several reasons contribute to an individual’s being unprepared for the Pre sentence Investigation Report.
Some of the more common reasons follow people struggle through the pre sentence interview include:
1: Anxieties about the criminal justice process kept the individual in a state of denial. Intense and conflicting emotions can cloud an individual’s ability to reason logically. In many cases, the stress can paralyze an individual. Defendants who invest themselves in fantasies about prevailing during a trial with an acquittal do not think about the consequences that can follow a conviction until it’s too late.
2: The Pre sentence Investigation happens so quickly after the conviction that the defendant didn’t have time to educate himself on the implications of this process.
3: The defense attorney, who may have been an extremely skillful litigator or strategist at trial, failed to appreciate the magnitude of influence that the PSI document would have on the sentencing and incarceration process. Ms. Holmes has opportunities to influence outcomes of the pre sentence investigation report.
At the very least, she should ensure the report’s accuracy. Equally important, however, is for her to take proactive measures that may have a positive influence on the pres entence investigation and post-conviction process.
Prior to the probation interview, Ms. Holmes could take the following proactive steps:
- Prior to meeting with the probation officer, she could write a narrative that would explain, but not excuse, his current circumstances.
- She could take steps to document any mitigating factors that might positively influence the way a probation officer or judge perceives his overall character.
- She could reach out to individuals in the community who may offer character references and validate the defendant’s contributions.
- She could prepare a list of references that might corroborate extenuating circumstances that led to the conviction, or show that she is much more than what the criminal conviction may suggest.
- Elizabeth Holmes could document a record of good works that would be included in the finished PSI report.
- Ms. Holmes can prepare her family members for the reality that a federal probation officer may make unexpected and uncomfortable inquiries about her character.
- She may improve her profile by engaging in some type of activity that would suggest his suitability for a less onerous sentence. We encourage our clients to prepare. They begin those preparations by recognizing that they must deal with the world as it exists and not as they would like it to be.
Although she may be new to the justice system, the federal probation officer who is tasked with conducting her PSI is not new. Federal probation officers interact with individuals who’ve been convicted of felonies every day. Those interactions make many probation officers cynical about anything a defendant says. If Ms. Holmes can accept that reality, she can take appropriate measures.
Justin Paperny
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