By Dan Portnov
Every CLE panel on sentencing includes a judge. And often the judge emphasizes the importance of presenting your client as a person and not just a defendant. That can be a challenge at a sentencing hearing unless the friends and family who show up in support are incredibly articulate and comfortable speaking in a courtroom.
There’s another way.
Last month, as most lawyers were anxiously preparing for their firm or bar association holiday parties, the New York Times and Above The Law simultaneously published short opinion pieces on the growing use of sentencing mitigation films. “Growing use” might be pushing it, as our informal polling of colleagues and judges (we may or may not have clerked for) has resulted in bemused, if not outright skeptical, responses.
Nevertheless, you should think about using a sentencing mitigation film, as championed by Doug Passon (seemingly of the law firm “D Major Films”). The technology is simple these days since we all have video cameras in our pockets. Having attempted our first such film with some success, here are a few practical and legal considerations:
- A Video Doesn’t Replace the Sentencing Memorandum
We begin with a seemingly obvious point. Submission of a sentencing mitigation film should accompany and not replace the submission of a sentencing memorandum, objections to the pre-sentence investigation report and preparation for the hearing.
At least one Circuit Court of Appeals has found total lack of preparation for a client’s sentencing to be constitutionally deficient representation. See Gonzalez v. United States, 722 F. 3d 118, 131 (2d Cir. 2013). Given the relative unfamiliarity of courts with sentencing mitigation films, no attorney should risk appearing without written and oral arguments should the sentencing court decline to review the film.
- Give the Court an Early Heads Up
Our initial plan – to finish the film and send it to the court on a thumb drive about two days before the sentencing hearing – smacks of naiveté in hindsight.
The film was technically an exhibit to the sentencing memorandum, and we therefore should have made a record of its submission on the case docket. When we called, the court clerk sternly informed us that we needed an order from the judge granting our client the right to file multimedia on the docket.
Suffice it to say, learning this just 48 hours before the sentencing resulted in a moment or two of panic.
This particular court takes the meet-and-confer obligation seriously, so we needed consent of the government first. Ultimately, the government chose not to take a position on our motion, but was kind enough to get back to us quickly. So, one draft motion later, the court graciously agreed to accept and review a courtesy copy of the film.
The judge took very seriously his obligation to consider all relevant matters in sentencing our client, which also worked in our favor. (To be fair, we have yet to encounter a judge who does not treat sentencing as one of the most important responsibilities of their position).
Naturally, it follows that filing a notice of media submission and the motion requesting permission cannot be done without drawing the government’s attention. Which leads us to our next point…
- Get Your Prosecutor on Board
USAOs remain largely unfamiliar with the sentencing mitigation film. Our own prosecutor expressed concern that a video in lieu of character letters was “not the normal process” in their district and thus reserved the right to object.
In reality, a district court is not bound by the Federal Rules of Evidence at sentencing, so dismissing the prosecutor’s concerns is a valid option here. See e.g., United States v. Hernandez-Villaneuva, 473 F.3d 118, 120, 122 (4th Cir. 2007); also this Federal Evidence Review post, noting that the First, Third, Fifth, Sixth, Seventh, Eighth and Tenth Circuit Courts of Appeals have reached similar conclusions.
However, in the interest of minimizing turbulence as your client approaches one of the most important days of their life, assuaging the prosecutor may be in your interest. Here, that might mean explaining the unavailability of family members or key character witnesses, the inability to accurately depict your client’s most compelling arguments through letters or in-court testimony and, most importantly, that the film does not undermine any of the agreed-upon parameters of the sentencing, such as loss amount or acceptance of responsibility.
Plus, if the government objects, it is important to listen to why the objection was raised. Perhaps it is something that can be fixed—such as an objection to music.
Once we provided our prosecutor with a courtesy screening of the film, we received the coveted “the government takes no position” response – the best we could have hoped for under the circumstances.
All this said, had the government objected, we still would have submitted the video. The judge can decide if she wants to review it or not and what weight to assign it. Don’t let the government’s objection stop you.
- Consistency a/k/a Script Supervision
Credibility – both your own and your client’s – is vital. At the sentencing hearing, the judge must believe that your client is remorseful and honest; otherwise your arguments for downward departure or an alternative to incarceration may fall flat.
Unchecked exaggerations, inconsistencies and new facts that appear in the mitigation film can easily undercut the credibility and solemnity of your preparation for sentencing. Our filming resulted in several such statements, with our client’s family and friends trying (with the best intentions) to inflate our client’s value to their community with responsibilities and deeds that were not consistent with those of our written submissions. Sadly, we had to leave these on the cutting room floor.
As each lawyer dives deeper into the facts, law and emotion of the sentencing argument to come, finding a script supervisor – a colleague who can review the papers and the film for inconsistencies – is good practice. This can be a paralegal or a secretary. It doesn’t have to be a lawyer.
- Waivers, Releases and Copyright!
Creating a sentencing mitigation film requires thinking beyond the realm of criminal law. Right off the bat, there are several important issues (and potential solutions):
A. Consent to record conversations (DC is a one-party consent jurisdiction).
B. Consent to film and then depict a person’s likeness (filming consent before or after is an easy way to avoid carrying a stack of waivers).
C. Music (Use of copyrighted music for submission to a court may fall within the fair use doctrine. If you want to avoid explaining that to a zealous judge, finding music already available under the creative commons license, e., public copyright license, and attributing it properly can save the headache).
- Filming Tips
Check out Passon’s DIY e-book for the basics on preparing and filming (disclaimer: we receive nothing for these plugs).
To make our six-minute film, we used very basic equipment: a Nikon D5000 DSLR camera with mini tripod, three clamp lights from the hardware store, a roll of parchment paper to dull the glare, and iMovie for editing. We spent several hours planning and recording the telephone interviews, half a day filming our subjects on location, and approximately 6-8 hours logging and editing the footage into a film.
You could simply use an iPhone in a fixed spot to minimize movement. Don’t let fancy equipment stop you from using a film to help show your client as a person.
- Cinéma vérité and the Trial Lawyer
We spent much of our time during production debating how best to elicit truthful and compelling answers from our client’s friends and family without giving a scripted or coached appearance.
As trial lawyers, asking a leading or conclusory question of friendly witnesses is anathema to our years of evidence and training. However, direct, open-ended questions rarely get the concise and powerful answer we hope for as filmmakers. Similarly, leading questions result in short answers that are often devoid of feeling and context. We had to rephrase, re-ask and focus the witness to get useful sound bites.
Our solution was to use multi-phase questioning method that 1) elicited information via open-ended questions, 2) confirmed or re-focused the information via leading questions, and finally 3) requesting the interviewee to rephrase the answer with particular focus on the points most useful in the film. This method allowed us to make an effective film while fulfilling our legal and ethical obligations to present unscripted and unvarnished truths.
The result was not an outright win—our client was sentenced to prison—but still encouraging: our client received a sentence of incarceration that was 21% below the lower bound of the applicable sentencing guideline range and 32% below the sentence recommended by the government. Both the government and judge acknowledged the sentencing mitigation film during argument and noted specific themes depicted.
During his comments, however, the judge did not indicate that the film had any particular impact on his decision. It is likely impossible to quantify the impact of our film.
All that said, we would do it again, particularly where our client has a compelling story to tell that may be difficult to do in writing or through witnesses.