Ray Hrdlicka – Host – Attorneys.Media
“What I want to do now, is go back to the article that Andrew wrote for Crime, Justice and America magazine. The magazine that goes inside the jails for the newly arrested inmates. Actually, for all of the inmates. But it is specifically designed for the people who are going through the criminal justice process. Again, Andrew wrote an article about the probation interview process. We got an incredible amount of responses from Crime, Justice & America about that article. I want to talk a little bit about that today, right now with Andrew. Obviously, that’s a big deal for the defendant because up until that point in time, you’ve been speaking for the defendant, you have been their representative, and at this point in time you can’t do that anymore. It’s just the probation officer, and your client, am I correct?”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“That’s correct. Although, in several cases I have written letters or called and spoken with the probation officers if there’s something particular that I want them to know or think about. Or, if I am ambitious in my optimism, my hope being that I say something to the probation officer that will have an influence on how the approach my client. Obviously, I’m going to be saying something that’s going to give that probation officer reason to be favorably inclined to hear my client, to understand my client, to give some perspective about how they would respond to my client.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, what would they do to prepare for this? First of all, what should they do to prepare for that probation interview process, and how should they conduct themselves during the interview?”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“You started off my clarifying or identifying the ‘intro’ theme that I had, which was that the defendant has not really been able to say anything. The reason the defendant can’t say anything before is because everything they will say can be used by the Judge, and by the District Attorney. So if I’m in court with my client and there’s an argument on a motion, or some issue that’s being raised, and my client want to make sure that a point is raised, if my client starts to talk the District Attorney can hear what’s being said. The Judge can hear what’s being said, and that can be used against my client. I want that to stay out of the way so it doesn’t influence the type of offer I get, or the type of deal that we ultimately negotiate for the client. Now, at the probation interview, the defendant is vulnerable, because if the deal gets bounced out for whatever reason, everything they say can be used against them. But we are being optimistic, we are hoping that the probation report will come back, and the Judge will be comfortable affirming the offer that was extended and which we’ve agreed to. Or, in some counties like San Mateo County, where the Judges make the sentence, the Judge may have already given an indicated sentence, we don’t want that Judge to change their mind and look at the case differently.
So why is it significant for the defendant to speak? Because now the defendant wants to become a human being that the probation officer will connect with. The probation officer has a script, or a long list of questions about the defendant. What do they want to know about the defendant? What are the aggravating factors? What are the mitigating factors? Aggravating factors are, of course, those things that make this person look less attractive. Do they have a lengthy criminal history? Is there violence in that history? Is there drug use in that history? Whatever may be involved. An aggravating factor may be the person just had a criminal case three months before, and now they have another one right afterwards. The message is they’re not learning their lesson from the first case. Mitigating factors may be that the defendant came forward and was forthright and acknowledged responsibility. The first thing I tell my clients is ‘you want to make sure you communicate you understand why you got arrested, and why the charges were brought against you. You understand why our culture, or our society, doesn’t encourage that kind of behavior.’ I want my client to say ‘yes, I acknowledge the role I’ve played.’ If we use a domestic violence case, and a defendant has been trying to cover his behavior by saying she just said nasty things, my response is ‘I get that….my wife knows how to say the things that gets me jacked up too, but my response was NOT to be violent toward her.’ No one is ever permitted to use violence, no matter how provocative those words may be. That’s just a rule in our society, that’s just a rule in our culture. Although the reality is that there are times when I would rather be punched that heard what somebody said to me. The reality is that I couldn’t have responded violently.
So I tell my clients if you acknowledge that you did not handle the stress of that situation, and you have been exploring what to do and you want to go to anger management classes. And while you were in custody or waiting for the case to resolve you took some classes or went to a counselor or therapy, and you’re beginning to understand why things are a trigger for you and why you react, I want you to tell that to the probation officer. So then the probation officers says ‘they acknowledge that they did something wrong, and they’re doing something about it.’ Those are significant factors. I can say things as eloquently, or maybe more eloquently than my clients can in terms of the words that I use, but when my client is telling a probation officer, ‘Man, I’m embarrassed that I lost control, I’m embarrassed…I should be in charge of myself, and I now know I can’t control myself, I have to deal with whatever is inside me.’ I want my client to be their own spokesperson. ‘I know I did something wrong, I know I have to deal with it, or I’m dealing with it, or I want to deal with it, and I’m not sitting idly by.’ They become the best advertisement for themselves. So the probation officer completing that report will go ‘yeah, I like what I hear. I know what this person has done and they’re not playing games with me.’
I use a comment in my article which was, ‘if you are selling somebody a Toyota, don’t call it a Ferrari.’ Right? Because most of us will know the difference between the two. A probation officer is a trained interviewer, a person trained in discerning what people say and whether they are being truthful. They’ll know when you are telling them a story. I tell my clients, ‘now you can be honest about the certain things that you need to.’ At the same time, I also prepare them because there are better ways to say things than other ways. What I now do is send the actual article that I wrote to my clients when they have a probation interview. It seems to really cement the points that I have made to them, that I have been sharing with them on how they present themselves. I say if you want to meet and do an interview session where we do a mock up, where I’m like the probation officer, or if you want to just really talk to me and I tell you how to consider adjusting your words or making the presentation one way versus another while emphasizing the things that are important…we can do that. Part of my service is to make sure my clients shine as best as they can in that situation.”
English 
Español de México