June 1, 2014
Could video kill the sentencing brief?
The question in the title of this post is prompted by this notable Wall Street Journal article headlined "Leniency Videos Make a Showing at Criminal Sentencings: Some Lawyers Supplement Letters of Support With Mini-Documentaries; Effectiveness Is Debated." Here are excerpts:
Randy Ray Rivera, formerly of Springfield, Mass., and now a resident of the Metropolitan Detention Center in Brooklyn, is the subject of a documentary film that was made for a very limited audience: the federal district judge who held Mr. Rivera's fate in his hands.
It tells the story of a young man who began dealing drugs as a teenager to support his siblings and his heroin-addict mother, who died of AIDS in 2004. The 26-minute video includes emotional interviews with Mr. Rivera's brothers and sisters, daughters and son, current and ex-girlfriends and a social worker, as well as with Mr. Rivera himself, in white-and-gray prison garb.
Such films, while rare, have caught on in some federal public defenders' offices. Now, some private lawyers and investigators are attempting to unlock the potential of video in the sentencing phase of criminal cases, supplementing the memorandum and letters of support that are typically used to plead for leniency.
"The sentences are almost always better than they would otherwise be," said Doug Passon, a veteran assistant federal public defender in Arizona who is considered by his peers to be a pioneer of so-called sentencing-mitigation videos. For the past five years, he has held a sentencing film festival at an annual training conference for federal public defenders....
Judge William Sessions III, who sits on the federal district court in Vermont, gave Mr. Rivera 12 years in prison, after viewing the video Mr. Rivera's legal team put together. It captures the rundown buildings in Springfield that Mr. Rivera's family occupied, sometimes as squatters. At one point, Mr. Rivera's teenage daughter, through tears, calls him "one of the best dads ever."
Judge Sessions, speaking generally about sentencing videos, said, "When you have a video of either a defendant's life or a victim's life, it provides context for that life." But he said videos weren't a substitute for a good legal argument in a sentencing memorandum. "They are supplementary," he said....
Proponents say the videos fall within the scope of a federal rule that allows people convicted of a crime to "speak or present any information to mitigate the sentence" to the courts. But some courts have rejected sentencing videos, after prosecutors protested they weren't given an opportunity to question the witnesses who appeared in the videos, investigators said.
While investigators and lawyers say such videos are used in a small fraction of the tens of thousands of federal cases that end in a criminal sentence each year, the word appears to be slowly spreading. Susan Randall, a former documentary filmmaker who now works as a private investigator in Vermont, said she has created more than 20 sentencing videos for a range of white-collar and drug defendants, including Mr. Rivera....
Katrina Daniel, a former television news reporter who covered crime, started her own production company in 2012 and has made about 10 sentencing videos, charging anywhere from $5,000 to $20,000.Some are simply interviews with the defendants, while others draw on family, friends, co-workers and others. Ms. Daniel said she tries to convey the defendant's remorse and acceptance of responsibility.
Mr. Passon said he got the idea for sentencing videos from an attorney he clerked for in 1995, while he was law student at Washington University in St. Louis. They were representing a man charged with a drug crime whose wife was dying of lupus, and the defendant was her sole caretaker. "We were trying to show how desperately he was needed at home," Mr. Passon said. They went to the client's home with a clunky, tape-fed video camera and recorded the man as he cared for his wife. "It was very, very powerful," said Mr. Passon.
Pop culture fans will know that the title of this post is a bit of an homage to the very first video ever played on MTV and a song which may be my all-time favorite one-hit wonder. And long-time readers will know I cannot resist this excuse for a mini-song parody based on the start of the lyrics to Video Killed the Radio Star:
I heard you sold some drugs back in '92
Bad criminal intent will keep haunting you
Your criminal history points keep coming through
You now get credit for singing like a symphony
And will be helped by machine on new technology
And now I understand the post-Booker scene
We met your children
What will we show them?
Video killed the sentencing brief
Video killed the sentencing brief
Pictures came and eclipse my words,
We can't mitigate down too far
June 1, 2014 at 10:46 AM | Permalink
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Clearly you missed your calling!
Posted by: Not really | Jun 1, 2014 7:13:34 PM
I tried this in a case in the 9th Circuit. I am pretty sure the judge never viewed it, it helped a bit with the probation people, but the court could have cared less. It was expensive but b/c so many of the defendant's friends and family lived on the East coast we felt it was a way to get them in front of the court. I will try it again and soon but it requires a couple of things besides a good story, you have to have an open minded audience.
Posted by: That lawyer dude | Jun 2, 2014 4:19:44 AM
I like the 80s rock tie in a lot. Look forward to the next sentencing law analogy, perhaps something like "Tommy used to deal pot on the docks....."
Posted by: Matt Faler | Jun 3, 2014 2:03:53 AM