Increased Use of Video Appeals May Result in More Lenient Sentencings

Emotional videos are being presented in court to mitigate defendant sentencing in hopes of a more lenient verdict.

These documentary-style films, typically featuring the convicted person along with interviews of family, friends and coworkers offering good judgement on the defendant’s character and lifestyle with the goal of inspiring a lighter sentencing, could be the newest trend reaching court rooms nationwide.

Under federal law, convicted persons have the right to present the court with any information that may lessen his or her sentencing, and now documentary-style films are being utilized more frequently in some public defenders’ offices to supplement letters and memorandums that are more normally presented in the mitigation process, The Wall Street Journal reports.

Randy Ray Rivera of Massachusetts pleaded guilty to conspiring to distribute crack-cocaine in 2013. Federal prosecutors sought a very typical 30 years in prison to life sentence for an offender of Rivera’s caliber; he had more than a dozen drug-related convictions since 1998.

A federal district judge in Vermont sentenced Rivera to only 12 years in prison, less than half of the sentencing prosecutors had argued for.

How is this possible? A sentencing-mitigation video may have been the key in Rivera’s case.

Rivera was the subject of a film which featured him in prison uniform while at the Metropolitan Detention Center in Brooklyn as well as his siblings, children, girlfriend and a social worker who all spoke on Rivera’s tough past that drove him to support his family by dealing drugs as a teen, such as his heroine-addict mother who died from AIDs.

While the use of these videos is rare, Doug Passon, a veteran assistant federal public defender in Arizona, believes they do aid the mitigation process, according to The Wall Street Journal.

“The sentences are almost always better than they would otherwise be,” Passon said of the use and effect of sentencing videos.

Passon was introduced to sentencing videos in 1995 when he was a law student at Washington University in 1995. He was a clerk for an attorney who used a powerful sentencing-mitigation video in the case of a man with drug charges who needed a lenient sentencing in order to be home with his wife who was dying of lupus.

Sentencing film festival at federal public defender training conferences have been held by Passon for the past five years, making him a trailblazer of the sentencing-mitigation video industry in the eyes of his peers.

Proponents of this technique, including some private lawyers and investigators, use the films to supplement their legal arguments and provide context to a defendant’s or victim’s life in order to convey information a court typically would not have access to otherwise.

The drawback, critics believe, is that the context that is being featured in these videos is not realistic because it’s edited, and the interviewed witnesses aren’t available in court for further questioning.

For example, most films, including documentaries, are edited to highlight a certain idea or point of view to communicate the message of the film to the viewer.

In the case of sentence-mitigating videos, a defendant’s actions may be put into context by allowing the opportunity to explain his or her life with the support of interviews of loved ones and neighbors. While this information can be used to put the crimes in context, the other side of the story isn’t communicated in these videos, such as the damage the crimes of these individuals may have caused a community.

Despite criticism and rejection from some courts, sentence-mitigating films are catching interest.

“There are definitely cases where a sentencing memo in black and white doesn’t cut it,” said Susan Randall in The Wall Street Journal.

Randall is a former documentary filmmaker who is now a private investigator in Vermont. She has produced over 20 sentence-mitigating films for a range of clients including Rivera.

Another proponent of these films is Katrina Daniel, a former TV crime reporter who started her own production company, has made 10 sentencing films since 2012.

Daniel charges $5,000 to $20,000 for her videos which can include interviews from the defendant and their supporters. Her films aim to portray the remorse and the acceptance of responsibility by the defendant.

There is no guarantee that the use of documentary videos will result in reduced penalties. In fact, thousands of federal cases still end in criminal sentences every year. However, sentencing videos are a new appeals strategy gaining popularity in law offices and drawing the attention of judges in court.

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