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Presentence Report – Conflict of Interest – Author Married to Defendant’s Prosecutor — Showing Actual Bias not Required – Remedy (Strike PSI) / Harm (Must Show Unfair Influence over Sentencing Process)

State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate


Requiring any defendant to demonstrate that the marital relationship actually influenced the writer’s impressions and recommendations would present an insurmountable hurdle to any defendant attempting to challenge a PSI. The reasons for an agent’s impression may operate at a subjective level of which the report’s author is unaware. The information, attitude and impressions received from an author’s spouse may influence the author’s impressions at either a conscious or subconscious level. Because the author’s impressions could be subconsciously influenced, the writer may not even be aware of the relationship’s influence. It would be difficult, if not impossible, for a defendant to challenge a PSI when the writer is not even conscious of the influence the marital relationship had on the preparation of the PSI. Further, the marital relationship draws the PSI’s objectivity into question and, at the least, raises serious questions as to the fairness of the sentencing process to the defendant.Because forcing a defendant to demonstrate actual bias in the writer from a relationship between the prosecutor and the presentence writer would be imposing an impossible burden on the defendant, we conclude that bias in the writer will be implied as a matter of law by the existence of the marital relationship. We, therefore, conclude that the marital relationship is sufficient in itself to draw into question the objectivity of the PSI without a demonstration of actual bias by the report’s author. As a result the trial court erred in not striking the PSI.

Suchocki, however, still must show that this report prejudiced the sentencing process. Due process entitles the defendant to a fair sentencing process. Skaff, 152 Wis.2d at 55, 447 N.W.2d at 87. The process is not fair if the sentencing court relied upon a PSI from a biased writer. We conclude, however, that Suchocki’s sentencing process was not unfairly influenced by the presentence report. Suchocki, therefore, was not prejudiced by the trial court’s refusal to strike the presentence report. We reach this conclusion for several reasons.

First, the ultimate sentence imposed by the court closely paralleled the recommendations of the alternate PSI submitted by the defense. …

In addition, the court expressly relied on Suchocki’s uncontroverted conduct rather than on recommendations contained in the PSI reports in imposing sentence. …

An even more compelling reason for concluding that the sentencing process was not prejudiced by virtue of the court’s refusal to strike this PSI was the court’s clear commitment to a sentencing process sufficiently removed from any influence by the tainted PSI. We note that the trial court delayed the sentencing hearings for a sufficient period of time to permit the defense to prepare its own PSI. …

Suchocki explicitly holds that “the trial court erred in not striking the PSI.” But this issue was raised as part of the sentencing process. When the issue of a PSI’s fairness is raised well after the fact, different rules apply; there is authority for the idea that the remedy in such an instance is not to have the circuit court strike the PSI, but to seek relief through the inmate complaint system, with review by certiorari. State v. Bush, 185 Wis. 2d 716, 519 N.W.2d 645 (Ct. App. 1994).

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