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September 30, 2013

How common are DVD submissions as mitigation evidence as part of federal sentencing?

The question in the title of this post is prompted by a somewhat amusing discussion toward the end of a Ninth Circuit panel opinion released today in US v. Laurienti, No. 11-50294 (9th Cir. Sept. 30, 2013) (available here). The following passage from the opinion provides the context for the question:

Laurienti claims for the first time on appeal that the district court committed plain error when it did not read the last two pages of his sentencing memorandum or view a DVD he had submitted.  We review these contentions under the same plain error standard applicable to his claim that the district court did not listen to his evidence in mitigation. We reject these contentions for two reasons.

First, the court provided Laurienti the opportunity to present the substance of those materials during sentencing. Laurienti did so, and the court listened to his position.[FN7]

Second, and more importantly, the court explained why further considering those materials would not change its decision. The court specifically stated that it had reviewed numerous letters from Laurienti’s family, friends, and business associates.  The court did not, however, find these materials persuasive in light of Laurienti’s apparent attempts to avoid making restitution payments.  Considering the cumulative nature of the DVD, and the fact that the court allowed Laurienti to discuss his sentencing position at length, Laurienti has failed to establish that the court’s refusal to consider the exhibits amounted to plain error requiring reversal.

[FN7] We note in passing that the time that the attorneys and this court have spent on the issue of the unread two pages and unwatched DVD was, in all likelihood, far more extensive (and, for the parties, expensive) than if the court had simply read and watched what was before it. As Benjamin Franklin astutely observed, “An ounce of prevention is worth a pound of cure.”

Under the circumstances, I am not suprised or troubled by the Ninth Circuit's resolution of this issue, though I can understand why a defendant might be both surprised and troubled that a judge at sentencing would report that he had not bothered to watch a DVD the defense team had created for the occassion.   This, in turn, leads me to wonder if mitigation DVDs are common submissions by the defense in some federal courts or for some sets of defendants (and also whether judicial disregard of such DVDs submissions might also be common).

A few prior related posts:

September 30, 2013 at 06:56 PM | Permalink

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Comments

If courts are forced to watch mitigating DVD's, they should be forced to watch aggravating DVD's. This is a potential new business for unemployed actors, re-enacting, reacting, and redacting the truth about the victims. Put the gruesome autopsy reporting on Youtube to cause public outrage. Do prior good deeds mitigate a crime? In the case of the Queen of Mean, it did not. She was tried for evading $4 million in taxes. She showed she had paid $400 million in taxes. Did not sway the jury. (During her prison time, she had prisoners make her bed, for 50 cents, and stiffed them for the 50 cents.)

Posted by: Supremacy Claus | Oct 1, 2013 6:36:10 AM

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