Authenticity: Can’t Fake It
We’ve come to the end of our sentence-mitigation program. If you’ve worked through this course and responded to all of the questions, you will have done everything within your power to build a new narrative, a new story. That story should become the focal point of your sentencing advocacy.
Your package will help your judge see reasons to avoid imprisonment in your case, or to reduce its severity.
Your mitigation package should address every circumstance that influenced your character and behavior related to the offense. Those circumstances can stretch back to childhood. For example:
“The trauma of having to deal with the wrongfulness of my actions has caused me to reflect. I’m looking back, wondering what influences led to my thinking it would be okay to violate laws. I remember one instance, when I was six or seven. My uncle brought me to a large sporting goods store. We were going fishing and we were purchasing gear, like a tackle box and fishing hooks and sinkers. He opened the tackle box and there were some compartments. I remember my uncle stuffing a few packages of sinkers and hooks into the hidden compartments. As a young, innocent boy does, I asked him:
But Uncle Joe, what if the clerk doesn’t see the hooks and sinkers when we’re checking out?
My uncle told me to keep quiet. If the sales clerk doesn’t see them, and he checks out, that’s his fault not mine.
Those were the types of influences that shaped the way that I thought. From early childhood, the people who were charged with grooming me, or helping me to understand right from wrong sent me a mixed message. On the one hand, they told me that it was important to be honest. Their actions, however, told me that as long as we didn’t get caught, we could still masquerade as if we were honest.
I learned lessons from those types of experiences. They made an impression upon my young mind. And as I grew older, I too believed that it was okay to cheat, to mislead, or to do anything possible to bring me an unfair advantage.
Let me contrast that experience with what I heard from my wife, Carole. She told me a story about when she was a child walking through a hardware store with her father. As they were walking out of the store, Carole examined the receipt. They were getting into the car when she noticed that the clerk had not charged her father for all of the items they purchased. Her father looked at the receipt and realized she was right. He got out of the car, went back to the clerk, and insisted that the clerk charge him for the missed item. My wife told me that as they were walking back to the car the second time, she asked her father why he had bothered to go back inside when he had already received the item for free. Her father said it was the honest thing to do.
Carole told me that she pointed out to her father that the hardware store was a big company and no one would even notice. Her father told her that maybe somebody would know, maybe somebody wouldn’t. But he didn’t want the clerk to have her pay docked because of a simple mistake. Carole told me that examples like that made her feel proud of her father and influenced the way that she grew up.
By listening to her, I learned a lot about how our early experiences influence our thinking, our ethics and our morality. Had I learned that as a young child, I would like to think I would have made better decisions.
As you can see, mitigation possibilities cannot be boilerplate. There isn’t any such thing as “one size fits all.” The only limit to the mitigation strategy will be imagination, time, and resources that you choose to invest. Help your judge see the influences that led you to become the person you’ve become. Also, help your judge see what you’ve learned from the experience.
Create a great story. Then let your story influence stakeholders who can influence your life. To build a great story, develop the backstory. Remember that everything makes sense in context. The context of the backstory may not excuse criminal behavior, but it can certainly work to humanize a defendant. And by humanizing the defendant, we bring to life that statement:
“But for the grace of God, there go I.”
In other words, the probation officer, prosecutor, and judge may agree that if they had the same background as the defendant, they too may have made different decisions. Those different decisions can explain how the defendant fell into a pattern of behavior that violated laws. The essential element, however, is that the defendant has reflected on those past influences. Through the mitigation package, the defendant must show:
What he has learned about his decision-making errors.
That he understands the harm he has caused by breaking laws.
That he grasps the ways that his decisions or behaviors have caused victims to suffer.
That he has thought about steps he can take to make things right with those victims.
That he appreciates the need for law and order in society.
That he aspires to reconcile with others and to live as a law-abiding, contributing citizen.
Attorneys cannot persuade a judge that a defendant has changed his thinking patterns. That’s why judges say that they want to know more about the defendant. Defendants who build very solid mitigation packages put themselves in a better position to influence the outcome of their sentencing hearing—but also to influence the outcome of every aspect of the journey going forward.
Difficulty in Preparing Mitigation Packages:
Defendants who work toward preparing their own mitigation packages should understand the complexity. Good packages are not easy to prepare. If a defendant doesn’t know what relevance specific events have at shaping behavior, a defendant won’t know where to look with regard to diagnosing the problem. Yet if a defendant retains an expert to help, the expert won’t know anything about the defendant’s life. So the expert must interview a client at length. The expert must ask an infinite number of questions. Each question will reveal something different, like revealing the following:
What are the client’s strengths?
What are the client’s achievements?
What are the client’s support networks?
How did the client develop those strengths?
How did the client develop support networks?
The interview also will reveal what environmental influences shaped his behavior.
Are there any mental health issues we can uncover and elaborate upon? Some defendants may not want to discuss these issues. They may not see the issues in themselves. Yet mental health issues are the very type of mitigating evidence that can lead to effective sentencing advocacy. We must tell a story that helps stakeholders have empathy for a defendant. And good advocacy requires a strategy that uncovers everything.
Defendants who choose to pursue this path on their own should use every lesson in this module that we’ve created. We hope that you’ve read through each module and that you’ve responded to each question. Best practice would suggest that you then repeat the exercise.
Have you responded to each question?
Have you written extensively?
Do your responses show, in every way, that you accept responsibility?
Do your responses show that you’re identifying with the victims?
Do your responses show what you’ve learned?
Do you responses differentiate you from defendants who only think about themselves, their families, or what they have lost?
Do your responses present a compelling case that you’ll never be involved with the criminal justice again as a defendant?
If you’ve done your job well with your sentence-mitigation package, the story you’ve created will make the judge understand you. In fact, your judge may even feel your pain without your saying that you’re in pain. That is the art.
The Honorable John Kane, United States District Court Judge from the District of Colorado spoke to the federal defenders in his district on October 3, 2008. He said that defense attorneys should work to help judges understand the life story of every defendant. But the reality is that defense attorneys rarely know enough about the defendant.
As we’ve stated previously, defense attorneys may fight valiantly to get the best possible outcome for a defendant. But they will not necessarily be great listeners to the defendant. Instead, they will analyze case law, statutory law, and the charging instruments. They will assess whether the government has the power to prove offenses beyond a reasonable doubt. Then they will use their skills to analyze a defense strategy.
If your defense attorney has taken time to work closely with you as an individual, then you’re in good shape.
Has your attorney spent hours listening?
Does your attorney know everything about your background and the influences that led to your offense?
Does your attorney know everything you’ve done to make things right?
Then you’re in good shape. If you feel that your attorney doesn’t know enough about you, then I encourage you to read the previous module where I wrote about working collaboratively with your attorney. Take matters into your hand and create a solid package that helps tell your story.
We have not written about the use of video in a sentence mitigation package. Yet video can be very effective—though expensive—to produce. A good video can evoke an emotional response. To create a well-crafted film, one that has the power to move a judge, you need a team that would include:
Possible travel costs
The costs associated with producing a high-quality sentencing video may be prohibitive for defendants. Yet those who can afford to produce an effective sentencing video should consider this tool. Videos may not be effective for all cases. Yet for some cases, they can really move the needle. Videos are especially helpful when a client has a compelling, credible story that a skilled videographer can tell in a visual, emotionally charged way. A good video must have the power to:
Create a story
Feature moving images that make a distinct impression upon any audience
The video should leave the judge with a compelling story that provides reasons to exercise mercy at sentencing. Arguably, there isn’t any better way to tell a story than through film. Movies connect us. They shape the way we look at life, people, places, and issues. Good movies have the power to change the world, or at least, how we look at the world.
What is a good story? Well, a good story is one that the judge has not heard before. That means, when creating a video to use at sentencing, we must use moving pictures to help the judge see the realities of the defendant’s life. We can’t bore the judge with a talking head. We must keep the video powerful, with images. Instead of writing about the defendant’s life, let the judge see the defendant’s life. We’ve all heard the story that a picture is worth 1,000 words. If that’s true, a good video is worth 1,000 pages.
With a good video, we can help the judge so much more than we can with written words. But if the video is too long, it can bore or distract. As a rule, the video should last seven minutes, to a maximum of 15 minutes. But if you’re going to submit a longer video, we highly recommend that you work with professional editors. That professionally produced video could cost north of $10,000—and it may or may not move the needle.
The story elements must build a strong case of empathy. In other words, the videographer must work with the writer to script the scene closely. Will the scene, images, or dialogue make the judge feel something for the defendant? You can’t manipulate the judge, but you must make him feel. Find the story behind the story, and use the backstory to give the judge a new perspective.
During sentencing, the judge wants to know about the defendant’s character and credibility. We want a sentence-mitigation package to highlight the defendant, and not the crime. A good video will help the judge see the defendant in action. We must see the character doing something that shows him as a credible human being, the type of human being that the judge would want as a neighbor. If a film can accomplish such a task, then it’s worth the investment to tell a story with moving pictures. If it cannot, then a written narrative may be sufficient.
If you choose to use video footage, make sure to put the video through the test. Show the video to others. Gauge their reactions. Listen to their responses. Then be scrupulous to learn from what they say, rather than defend what you were trying to accomplish. This type of editing requires many hours. To complete a video that lasts five minutes, a producer may need to invest 50 hours. Maybe more.
As an example, take our partner Shon Hopwood’s video on 60 Minutes. That video lasted 14 minutes on television. Yet consider the amount of work that went into producing that 14-minute video. First, a producer wrote a series of questions, or script to follow. Then, a team likely approved the script.
After they had an idea of how to present the story, the network sent four people to Washington DC and to Nebraska to record more than 20 hours of video footage. Besides those four people, the network brought recording equipment worth tens of thousands on site.
There were travel costs and hotel bills and food expenses. Then, at least two editors watched every minute of those 20 hours of video footage. They likely created a storyline. They collaborated on how to tell the story in the most compelling way. They edited and reedited. Taking all costs into consideration, we can expect that the network invested more than 200 hours to get the finished product. That 14-minute video likely cost 60 Minutes more than $200,000 to produce.
But what did 60 Minutes get for the investment? They received 15 million viewers the first time it aired. Over the lifetime of the segment, 60 Minutes may receive 10 times that many viewers, or more than 150 million views. Those network executives deem the investment worth every cent.
Likewise, each defendant must decide how much he or she wants to invest to create an effective sentence-mitigation package. Some defendants may have financial resources available to hire professionals. Others may not have financial resources, but they have time. The principles we’ve tried to teach through this sentence mitigation strategy can help.
What if the lawyer objects to a sentence-mitigation strategy?
Sometimes, lawyers want to coordinate everything. They like to be one-man-shows. I’m reminded of a cartoon that Jack Ziegler published in The New Yorker. I was in prison when I saw the cartoon, and I laughed because the cartoon reminded me of interactions I had with my lawyer.
As I recall, the Ziegler cartoon illustrated a desk in a high-rise office building. We saw the tops of NYC skyscrapers outside the window, suggesting a power office. On one side of the desk, we saw a serious-looking professional with walls of books beside him. On the other side of the desk we saw the client. I’ll paraphrase what I remember of the caption:
“As your chosen autobiographical ghostwriter, let me state upfront that if I want any input from you, I’ll ask for it.”
Similarly, some lawyers do not want to hear anything from a defendant. But it is crucial for a defendant to remember the importance of the sentencing proceeding. In a sentencing proceeding, a defendant is about to make the biggest sale of his life. Liberty is at stake. Our courses provide ample evidence of judges who advise defendants to invest the time and creativity to communicate their life stories.
For example, see our YouTube page at Prison Professors. You will find a playlist called “Get Ready for Sentencing” and “Judge Advises on Sentencing Preparation.” If you watch those videos, you’ll see how judges react to effective sentence-mitigation strategies.
If a defense lawyer rejects your efforts to introduce a sentence-mitigation package, we encourage you to show clips from those videos. We encourage you to ask your lawyer questions. Ask your lawyer why he wants to ignore what the judges advise in those video clips from interviews our team has done with judges. We also encourage you to share the previous module from this sentence mitigation workshop with your lawyer.
Ideally, you will have taken time to prepare a first draft of your sentence-mitigation package long before the presentence investigation meeting. Take time to edit the document and get it ready. Some packages may be presented in fewer than 10 pages; some may exceed 100 pages in length. Some packages may include video or audio files.
Every case is different. But the defendant who wants to do everything with his or her power to prepare for the best possible outcome will present a highly personal package for the judge to consider. That package should document the backstory, as well as the influences that led to change. We encourage you to cite literature. Cite role models. Cite all that you’ve learned from your reflections.
Should you need further guidance, we encourage you to use the resources that are available on our website at ResilientCourses.com.
Through this package, we have given you the tools that we use to craft effective sentence-mitigation packages for the clients we serve.
We hope that it will serve you well. And if your lawyer gives you trouble, ask him the following questions:
What makes my case different from other defendants who appear for sentencing before this judge?
How have you prepared to tell the judge the different ways that I identify with the pain and suffering my crime has caused to victims?
In what ways will your sentencing memorandum reveal what I have learned from this offense?
Help me understand why the judge will not want to know more about the influences that led to my criminal behavior?
What have you learned about the influences that shaped my decisions?
What do you suppose U.S. District Court Judge Steven Bough meant when he said that few lawyers prepare their clients for sentencing?
What do you suppose Judge Bough meant when he said that most defendants who come before him at sentencing failed to reveal why they are worthy of mercy?
Why won’t the judge want to see the work I’ve invested in this mitigation package?
What did U.S. District Court Judge Bennett mean when he said that he would like more defendants to submit mitigation packages to the probation officer during the presentence investigation?
If judges want defendants to reveal more about their backgrounds and the influences that led to their behavior, as well as the influences that make them candidates for mercy, why would you object to my presenting a case?