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Sentencing Expert Softens the Blow
Jeff Chorney
The Recorder
05-11-2005
When well-known criminal defense attorney J. Tony Serra was prosecuted recently for refusing to pay his federal taxes, his lawyers saw the gavel coming down.
Faced with a $100,000 debt to the government and a prosecution request for time in the pokey, Serra's attorneys stopped fighting the conviction and focused on damage control.
His lawyers did what the true believer himself has done in dozens of cases: They called sentencing consultant Dayle Carlson.
"He's a beautiful dude," Serra said. "We're always agonizing, and he's very pacifying."
Carlson is a former U.S. probation officer who has become an expert in federal and state sentencing. In work that combines the skills of social work with private investigating, Carlson ferrets out facts about defendants that can help defense attorneys argue for less time in prison.
In the past 20 years, the Sacramento-based consultant has developed a reputation for empathizing with defendants and his mastery of federal sentencing guideline departures.
Carlson says there no magic behind his work. Over the years he has developed a structured interview to get at useful information. Often it's simple things, like asking someone's Social Security number -- "some people don't know, some people have seven," Carlson said -- that lead to mitigating facts.
"The fundamental purpose … is to change a defendant from being a defendant to being a person," he said.
Most of his work in the federal system involves creating presentencing reports and ghost-writing sentencing memoranda. For example, he was one of six people to work on Serra's 15-page memo. (Magistrate Judge Joseph Spero is scheduled to sentence Serra on July 29.)
In a realm where fewer cases than ever are going to trial, defense attorneys are increasingly concentrating on what happens after conviction. But they admit it's not easy staying current on sentencing law.
The latest twist was U.S. v. Booker, 125 S.Ct. 738, in which the U.S. Supreme Court declared the federal sentencing guidelines only advisory. The decision hasn't simplified things. Carlson and other sentencing experts say they expect to be even busier in the post-Booker world.
"My phone's been ringing off the hook, and I expect Dayle Carlson's has too," said Alan Ellis, a Sausalito attorney who also does post-conviction mitigation.
Unlike Ellis and others in the niche practice, Carlson is not a lawyer. Although Carlson said he's never needed a law degree for his work, other consultants say the J.D. has some advantages. Ellen Fritz, another former U.S. probation officer, attended night law school before recently going private. She's allowed to sit in on interviews between probation officers and defendants and can even make court appearances if the primary defense attorney can't make it.
Carlson began his career as a Sonoma County probation officer in 1971, and three years later went to work for federal probation. He wanted a smaller caseload and a bigger paycheck and hoped to deal with more sophisticated offenders.
But he also found an annoying bureaucracy that often tied probation officers' hands. Carlson, who made supervisor, readily admits he was more social worker than cop -- he has a master's in counseling psychology.
By 1984 he was ready to do something different.
"I saw the system starting to change, becoming much more punitive," Carlson said. "In fact, the federal system has become unconscionably punitive."
Carlson's departure from U.S. probation couldn't have been more fortuitous. That same year, Congress passed the law creating mandatory sentencing guidelines, putting a premium on creative approaches to sentencing mitigation.
So he took the favorite parts of his job -- talking with clients and field work -- and entered the private sector. If he had a mentor, it was the late Casey Cohen, a former Los Angeles juvenile probation officer who used $175,000 in sweepstakes winnings to seed his own private sentencing consulting practice.
Now, Carlson is the go-to guy for dozens of California attorneys. He has worked for some of the criminal defense bar's biggest names, including Cristina Arguedas, William Osterhoudt and Gilbert Eisenberg, and has given input on some major cases, including the plea deal that sent several members of the Symbionese Liberation Army off to prison.
Sixty to 70 percent of Carlson's work is federal; the rest is juvenile and state cases. He's done some death penalty cases, but mostly leaves those for his business partner, Richard Wood, another former U.S. probation officer.
About 5 to 10 percent of Carlson's federal work is court-appointed. For retained work, he charges a flat fee of $4,000 to $6,000 per federal case, which works out to between $100 and $125 per hour. He also does a lot of pro bono, and attorneys say he is extremely generous and seems to be available all the time.
"He's an affordable luxury," said Eisenberg. "Sometimes I've told him 'you're charging too little.'"
Serra said Carlson is also known for his sunny disposition and ability to calm down attorneys freaking out about the government bringing down the hammer.
Carlson, 58, says that what keeps him going are the success stories he's seen through his work with drug and alcohol treatment centers.
He has an unflagging faith in people's ability to change. It sounds bleeding heart, but it hasn't cost him credibility. He says the key is staying objective in his evaluations. "My theory is you gotta deal with the dark side as well as the bright side [of defendants]," he said.
Sometimes the best way to do that is to confront the negatives head-on.
"I fight sometimes with lawyers about what we can do," Carlson said. "My philosophy is that if you push that envelope too far, you push yourself into irrelevance. If they get too far from what is realistic, the lawyer loses credibility."
Lawyers can spot Carlson's work a mile away. San Francisco solo Arthur Wachtel, after reading a newspaper story that quoted from Serra's memo, saw his fingerprints on a section that argued Serra's contributions as a defense lawyer outweighed the need for prison time.
Wachtel said Carlson does a "beautiful job" balancing the concerns that compete for a judge's attention, including rehabilitation, public protection and likelihood of recidivism.
"He's able to give context to violations of the law," Wachtel said. "Giving them context results in a more rational, reasoned response, which translates into a better sentence."