Are prosecutors above the law?

Are all pigs equal but some pigs more equal than others? That's the issue I worked on yesterday in a brief involving whether prosecutors have a right to review presentence reports, or PSI's.

The case involves a lawyer friend who, knowing that the trial court routinely allowed prosecutors to review PSI's, moved to preclude them from doing so in his client's case.

The statute involved allows the judge to determine who can review PSIs, but also imposes a requirement that the judge first decide whether review by the person seeking it is in an offender's best interests. As the statute, Neb. Rev. Stat. § 29-2261(6),says:

Any presentence report… shall be privileged and shall not be disclosed directly or indirectly to anyone other than a judge, probation officers to whom an offender's file is duly transferred, the probation administrator or his or her designee, or others entitled by law to receive such information... The court may permit inspection of the report or examination of parts thereof by the offender or his or her attorney, or other person having a proper interest therein, whenever the court finds it is in the best interest of a particular offender.

Pretty clear that not just anyone can view these PSI's, right? Well, the judge didn't see it this way, for whatever reason, and decided that the statute was inoperable against the State, as it was a "party" to the action. Fair enough. Take it up on appeal.

But the prosecutor, at the hearing on the Defendant's Motion to Preclude him from reviewing the "privileged" PSI, the prosecutor said:

“If the State doesn't have that information [in the PSI], the state will have to assume the worst on every individual defendant, assume they're not employed, things of that nature, and to make a recommendation for the maximum.”

Wow. In other words, if you don't let us see it, we'll just have to assume that the information is terrible and ask for the max every time.

Isn't this a perfect reason to be a criminal defense lawyer? The prosecutor can't read the plain meaning of a statute and threatens, should the judge apply the statute against him, to assume the worst and max them all out.

So much for a prosecutor's "duty to seek justice."