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May 24, 2015

Effective review of effective(?) use of sentencing mitigation videos ... and concerns about equity

Today's New York Times has this lengthy discussion of a digital development in modern sentencing proceedings.  The piece is headlined "Defendants Using Biographical Videos to Show Judges Another Side at Sentencing," and here are excerpts:

Lawyers are beginning to submit biographical videos at sentencings, and proponents say they could transform the process. Defendants and their lawyers already are able to address the court before a sentence is imposed, but the videos are adding a new dimension to the punishment phase of a prosecution. Judges “never knew the totality of the defendant” before seeing these videos, said Raj Jayadev, one of the people making the[se videos].... “All they knew was the case file.”

Yet as videos gain ground, there is concern that a divide between rich and poor defendants will widen — that camera crews and film editors will become part of the best defense money can buy, unavailable to most people facing charges.  Videos, especially well­produced ones, can be powerful.  In December, lawyers for Sant Singh Chatwal, a millionaire hotelier who pleaded guilty in Federal District Court in Brooklyn to illegal campaign donations, submitted a 14­minute video as part of his sentencing.  Elegantly produced, it showed workers, family members and beneficiaries of Mr. Chatwal describing his generosity.

As he prepared to sentence Mr. Chatwal, Judge I. Leo Glasser said he had watched the video twice, including once the night before.  The judge, echoing some of the themes in the video, recounted Mr. Chatwal’s good works.  Judge Glasser then sentenced Mr. Chatwal to probation, much less than the approximately four to five years in prison that prosecutors had requested.

Yet efforts like those on behalf of Mr. Chatwal are hardly standard.  While every criminal defendant is entitled to a lawyer, a day in any court makes it clear that many poor people do not receive a rack­-up-­the-­hours, fight-­tooth-and-­nail defense like Mr. Chatwal did.

Even in cities with robust public defense programs, like New York City, lawyers may be carrying as many as 100 cases at once, and they say there is little room to add shooting and editing videos to their schedules.  “It’s hard for me to imagine that public defenders could possibly spare the time to do that,” said Josh Saunders, who until recently was a senior staff attorney at Brooklyn Defender Services, adding that lawyers there are often physically in court for the entire workday.  He sees the humanizing potential of videos, he said, but “I would also be concerned that defendants with means would be able to put together a really nice package that my clients generally would not be able to.”

Mr. Jayadev’s nonprofit, Silicon Valley De­Bug, a criminal justice group and community center in San Jose, Calif., believes that videos are a new frontier in helping poor defendants, and is not only making videos but encouraging defense attorneys nationwide to do the same.  The group has made about 20 biographical videos for defendants, one featuring footage of the parking lot where a homeless teenage defendant grew up.  With a $30,000 grant from the Open Society Foundation, De­Bug is now training public defenders around the country....

LaDoris H. Cordell, a former state court judge in Santa Clara County who is now the independent police auditor in San Jose and who has seen some of Mr. Jayadev’s videos, said she would like them to be used more widely at sentencings.

“I’m very wary, and I was as a judge, of the double standard,” where wealthy defendants can afford resources that poorer defendants cannot, she said. “It is a problem, and what Raj is doing, these videos, is something that should be available to anyone who needs to have it done.” A prosecution, she said, is “usually is a one­sided process, and now it’s like the scales are being balanced out.

May 24, 2015 at 01:44 PM | Permalink

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Comments

Frankly, federal public defenders have been at the forefront of using sentencing mitigation videos for years. If videos are used in every case, however, their effect is reduced. There are appropriate cases for videos, and Mr. Chatwal's case very well was one of them. Not all cases are appropriate for videos. Also, Mr. Chatwal was in federal court but the article quotes an attorney who worked in New York city and state courts. Minimal research by the article's writer would have led to Doug Passon, a former assistant federal defender, who really was a leader in bringing innovative sentencing mitigation videos into federal court.

Posted by: Jay | May 24, 2015 6:57:04 PM

This is the mirror image of the victim impact statement. Both should be banned in the Rules of Evidence. Worthless trash of no probative value. Both violate the Confrontation Clause of the Sixth Amendment. If the defendant is allowed videos with his kids, his kids should be made to testify about his abuse.

Posted by: Supremacy Claus | May 25, 2015 12:10:00 AM

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