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, including personnel and mental health professionals for the nebraska state patrol specifically
assigned to sex offender registration and community notification for the sole purpose of using such report or examination for assessing risk and for community notification of registered sex offenders. ... 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.
requires the court to make a finding of "best interests" finding before allowing the prosecution to review the PSI.
In short, the issue was whether the prosecutor was (1) automatically entitled to review the report (a member of the group of "others entitled by law" to review the PSI) or (2) whether he or she was- like the Defendant and his or her attorney- not automatically entitled to review it until the court found that viewing it was in the Defendant's best interests.
Note that if the Nebraska Supreme Court found that the prosecutor was a member of group (1), an absurd result, where the prosecutor saw it and the Defendant could not, was bound to happen. After all, if the prosecutor doesn't have to ask before viewing this "privileged" document and the defendant does, all it takes is for one judge to say no before a situation arises in which the prosecutor and the probation officer have access to a document that the Defendant doesn't, prior to sentencing.
The opinion was released today and that's exactly how the court ruled:
In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to
sentencing and make informed arguments to the court regarding the proper sentence. For these reasons, we conclude that prosecutors are among the “others entitled by law to receive” the information in a psI under § 29-2261(6). We conclude as a matter of law that because prosecutors
are “entitled by law to receive” the information in the psI, it is not necessary under § 29-2261(6) for a court to determine whether it is in the best interest of the defendant before allowing the prosecutor access to the psI. We therefore conclude that the county court did not err in overruling albers’
motion to preclude review of the psI by the prosecuting authority and that the district court did not err in affirming such decision.
However, compare the Court's reasoning below with the statute above:
[S]entencing is a critical stage of a criminal proceeding, Mempa v. Rhay, 389 U.s. 128, 88 s. Ct. 254, 19 L. ed. 2d 336 (1967), and the information in a psI is relevant to sentencing. In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to sentencing and make informed arguments to the court regarding the proper sentence.
If sentencing is a "critical stage" and "full adversar[ial] testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the PSI... to evaluate factors relevant to sentencing and make informed arguments... regarding the proper sentence" then how can the statute at issue not violate due process since it requires the Defendant to ask the judge to view this document but entitles the prosecutor automatic access "as a matter of law?"
It's not surprising that a Court would exalt a prosecutor- that's the age we live in- but in exalting him in this way, didn't the Nebraska Supreme Court create a scheme that violates Due Process? All it takes is for one judge to say no to a Defendant and the prosecutor will see what the accused cannot.
If "it is necessary for the prosecutor to have access to information in the PSI" but also necessary for the Defendant to ask the Court before doing so, and likely that a court will soon say no, how is Due Process not violated by this interpretation?
Will someone help us appeal this issue to the U.S. Supreme Court, to avoid this absurd result?