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Defendant’s Life Story Goes Straight to Video

179280937When you think of great prison escape movies, ones that come to mind are “Papillon,” “Escape From Alcatraz,” “The Shawshank Redemption,” and, if Doug Passon has anything to say about it, the one you made that convinced the judge to give your convicted client a vastly reduced sentence.

Passon is an Arizona assistant federal public defender who, according to The Wall Street Journal, is a “pioneer” in the making of “mitigation sentencing videos.”

They’re exactly what they sound like: professionally made videos shown to the judge prior to sentencing with the intent of convincing him or her to grant the newly-found guilty party a break.

The videos may fall anywhere between a few minute on-camera talk by the perp to a half-hour documentary detailing the felon’s background buttressed by character references from his family and friends and costing tens of thousands of dollars to produce.

There is even – and I’m not making this up, although I was about to until I learned it was a real thing – a “sentencing mitigation film festival” that is the brainchild of Mr. Passon and has been in existence for five years, held at the annual training conference for federal public defenders. The part that I AM making up (I think!) is that like virtually all film festivals, the “mitigation” fest hands out awards, which I’m dubbing “The Mittys.”

Some of the awards include:

Best Transformation of a Remorseless Killer Into an Abused, Misunderstood Victim

Biggest Sentence Reduction Due to Judicious Editing

Best Acting By A Convicted Killer Facing the Death Sentence

The “Menendez Brothers’ Chutzpah Blaming The Victim” Award

The Lifetime Achievement Award for Getting A Client ‘Life’ Instead of a ‘Death’ Sentence

The article spotlights one defendant who pleaded guilty to conspiring to distribute crack cocaine, for which federal prosecutors sought a sentence of 30 years to life. After watching a 26 minute video presenting the inmate’s “story,” as well as character references from girlfriends past and present, children, siblings and others, the judge sentenced him to 12 years.

There were other factors to be sure, including that he “pled out,” the dwindling sentencing disparity between dealing crack and “regular” cocaine, and the proclivities of the judge himself, but so far there is some evidence that these videos are having the intended effect. In any case, they’re slowly growing in number.

It’s already one of those never-ending debates whether appeals by the defendant’s supporters for mercy, and/or heart-breaking testimonials from the victim’s family about how the defendant destroyed their lives, should influence the severity of a sentence. Should the perp get more time because the victim has a family that craves retribution? Should he get leniency because the deceased lived alone in an SRO? These videos add a whole new level of sophistication, and fire, to the arguments.

As you’d guess, prosecutors and DA’s are not enamored with them, partly because the presentations offer “an edited view of the defendant’s life,” and because, in counterpoint “it’s hard to represent the tremendous damage his activities caused to many communities and individuals.” So said the Vermont U.S. attorney Tristam J. Coffin, who himself should receive an award for “Best Surname For a District Attorney Seeking The Death Penalty.”

It’s hard to know exactly how to feel about this new use of technology. While at this point it’s being employed mostly by public defenders, whose clients often receive short shrift, once the vids are proven to be effective, there’s no doubt that more affluent clients will use them. After all, if ever there was a good use for your ill-gotten gains, hiring a Hollywood-caliber director to produce a video that shaves years off your prison sentence, is it!

It would also be terribly ironic.

Other objections include that they’re slickly packaged, can’t be cross-examined, and allow high production values to influence prison time. On the other hand, courtrooms already contain so much “theater,” including dressing up the defendant, rehearsed testimony, fabricated attorney outrage, computer simulations of the crime scene, etc., that it’s difficult to make the case that this is where the line must be drawn.

But perhaps the most disturbing part, is Passon’s treatise “Using Mitigation Videos to Bridge The Cultural Gap at Sentencing”, which describes making the mitigation video as virtually indistinguishable to creating a work of fiction, even referring to the defendant as “the protagonist.” Listed under “The Three Elements of A Successful Sentencing Film,” Passon includes: 1) Solid Story, 2) Compelling Characters and 3) Emotionally Evocative Images. And just as Hollywood employs test screenings to gage how audiences will respond, so does Passon recommend doing the same thing.

If these become any more prevalent, it will take to a whole new level the idea that movies are a form of “escapism.”

One Comment

  1. Stan says:

    The newest rage in legal thrillers!