First Circuit’s Ruling in United States v. Bramley Raises Concerns Over Judicial Transparency in Sentencing

January 26, 2017.

In United States v. Bramley, 847 F.3d 1 (1st Cir. 2017), the First Circuit Court of Appeals upheld the district court’s sentencing decision despite off-the-record conversations between the judge and a probation officer. The court ruled that, due to the defendant’s failure to object at the time, there was no clear or obvious error, and thus the sentencing was affirmed without remand.

Our Take:

Although the First Circuit commented on the importance of protecting “a defendant’s right to disclosure of the information affecting a sentencing court’s decisional calculus[,]” it condoned a clandestine conversation between the probation officer and the sentencing judge.

Because the defendant failed to object, the First Circuit concluded that the existence of error was neither clear nor obvious.  

Perhaps this is so — on the record before the court  any conclusion as to the contents of the conversation would necessarily be based on speculation. However, the fact remains that the court pressed the mute button on five minutes of a proceeding of grave import to the defendant. To preserve public confidence in judicial proceedings, and to preserve the accused’s right to be heard at sentencing, the court should have at a minimum remanded the matter for a further hearing, in order to determine and reveal the contents of the ex parte hearing. A remand would repair the critical transparency which is a traditional – and indispensable – component of our system of justice.