Chesterton Tribune

 
 

Defense attorney allowed to sit in on McCowan pre-sentencing interview

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By JEFF SCHULTZ

Porter County Superior Court Judge William Alexa favored a motion last week for convicted murder Dustin McCowan’s to have his legal counsel present for his presentence investigation interview with the county probation department, something that is not entirely common in Indiana.

McCowan was found guilty on a charge of murdering his former girlfriend Amanda Bach by a jury after a three-week-long trial throughout February.

Whenever someone is convicted of a felony charge, a presentence investigation report is required, said County Chief Probation Officer Stephen Meyer.

On March 5, McCowan’s defense attorneys John Vouga and Nicholas Barnes filed a motion for one of them to attend the interview saying the defendant’s right to Counsel is protected by the sixth and fourteenth amendments of the U.S. Constitution and also reflected in the Indiana Constitution.

Vouga stated in the motion that in the past, the probation department has “denied permission” for him and his associates to sit in on clients’ interviews.

In Federal cases, Vouga told the Tribune, defendants are to have legal representation present during pre-sentence interviews but in State cases, the Indiana Supreme Court had ruled that the procedure is “not a critical stage” to require the presence of a counsel.

Most probation departments throughout the state, including Porter County, prefer defense attorneys stay out of the interview because they believe the attorney could somehow interfere, Vouga said. However, in his view Vouga said having an attorney present is to ensure that the client’s rights are protected.

In the motion, Vouga and Barnes argue that the “refusal to allow participation of an attorney is unfair and serves no purpose” because the right to counsel is a constitutional right recognized by the state.

Vouga said he encourages his clients to cooperate fully in the interviews and “99 percent of the time” he agrees with the questions the probation department asks. The one problem he has seen in the past is when the department asks the defendant to give their version of the events in the case. Vouga said he is concerned the probation officer giving the interview could “manipulate” the client’s account in the presentence report which could lead to a more “aggravating” sentence from the judge.

Meyer said he understands “where Vouga is coming from” with this being a high-profile case.

“I don’t have a problem with it,” Meyer said.

The probation department “philosophically” doesn’t ask lawyers to be there for the interview because it could be a hindrance on what information the defendant gives.

The defendant has the right not to answer questions if he or she wishes not to, Meyer said.

Vouga said he tells his clients they can direct the probation officers to refer to the details in the probable cause affidavit as their version of the crime.

The purpose of the presentence report is to give the judge an opinion of the defendant’s character and what his or her needs are, Meyer said. Questions asked in the interview focus on the defendant’s education, employment history, financial status, mental health, family life, medical history, and drug use if any.

Meyer said the report also includes a victim impact statement, a risk assessment, and a recommendation on sentencing.

The probation department can also get a signed resolution from the judge to ask persons other than the defendant for information, Meyer said.

The information contained in the report is kept confidential, he added. The only ones who can see the report are the judge, the defense attorneys and the prosecuting attorneys.

The report is given at least one week before sentencing, Meyer said. It is one factor in the judge’s sentencing. The judge will also hear remarks from the defense and prosecuting attorneys.

Alexa granted the motion the same day it was received and ordered that the probation department coordinate with the counsel to attend the interview.

Vouga said Barnes attended McCowan’s interview last Friday afternoon, March 8, and reported “no problems.”

“It went wonderful. Dustin was fully cooperative,” said Vouga.

McCowan is scheduled to be sentenced on Thursday, March 28, in Alexa’s courtroom at 2 p.m.

 

Posted 3/14/2013