Set For Sentencing

Let's call this part-two of our long days journey into the night of several recent high profile federal setnencings. Continuing our conversation from last week (Sunny Bulwani), we dig in to the sentencing of the very public and tragic fall of attorney Michael Avenatti. We did most of the stats in last week's episode, but this week (see links below). In today's episode, we first focus on some statistical missed opportunities, particularly when it come to life expectancy.Tnen, we really dig in on the narrative shortcomings of Avenatti's sentencing presentation. Avenatti did himself no favors when, acting as his own attorney, he plead guilty without any agreements in the last of his three federal cases. Although statistically he came out all right, in practical terms, this man is likely to spend the rest of his life in a prison cell. Today we make the case that Avenatti's failure to put forth any coherent and credible narrative to help the judge understand why he did what he did, what he is going to do to make it right, and why it will never happen again, sealed his own fate at sentencing. IN THIS EPISODE: What it means to do an "open plea"; How making an unreasonable sentencing request risks removing you from the conversation; Comparing Avenatti's fraud sentences to those sentenced for murder and kidnapping, and recidivist child porn offenses; Judges can and do request sentencing statistics from the US sentencing commission, but you might not know it; Examining and critiquing the sentencing memos for narrative, style, and strategy; The mishap with Avenatti's Residential Drug & Alcohol Program (RDAP) request; Another bummer example of what happens when we ignore the all-important life-expectancy statistics; Putting pictures in pleadings; they go in the body of your memo, not in the back as exhibits; Avenatti's giant, missed opportunity to create context and connection with well-told, credible revelation and redemption stories. LINKS: Last episode: We began this conversation in EP. #32 (Sunny Balwani Sentencing Post Mortem) by doing a thorough, comparative statistical analysis of Avenatti's sentencing with Holmes, Bulwani and the Chrisleys (reality star fraudsters). If you haven't heard the first 20 or so minutes of that episode, it's most certainly pertinent to today's discussion on Avenatti. Check it out, along with Mark's awesome graphs and charts at: www.setforsentencing.com/balwani or on YOUTUBE: https://youtu.be/qVFps0dz8-k A couple months back, we gave Elizabeth Holmes the same treatment. You can listen or watch that episode (Sentencing Post-Mortem Podcast) here: https://dougpassonlaw.com/podcast/elizabeth-holmes-sentencing-post-mortem/ or on YOUTUBE: https://youtu.be/8QmadJLe3NQ ABT Book! When analyzing the defense memo, we see the ABT at work, clearly defining the problem the judge needs to address ("the But"). The book is 7 bucks on amazon if you want to learn more. If you're not up for buying the book, here's a short blog post on it: https://dougpassonlaw.com/blog/the-three-most-important-words-in-persuasive-communication/ Patterson study: Avenatti missed it. Holmes & Balwani missed it. So did the Chrisley's. Life expectancy could make a huge impact at sentencing. And remember the Patterson study to make sure you're getting accurate numbers! https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2012.301148?role=tab MARK's CHARTS: visit www.setforsentencing.com/avenatti to see some more of Mark Allenbaugh's visual aids concerning relevant statistical issues in the case. 3 RS: Here we again analyze the defense mitigation presentation through the lens of the "3Rs" of Sentencing Narrative. Avenatti missed the boat on all of them, but especialy REVELATION and REDEMPTION. If you'd like to learn more about the 3Rs, head over to the shownotes at www.setforsentencing.com/avenatti, for a free download of the article I wrote on the subject for The Champion (NACDL).

In this case, we deal with the "ABCs" of federal fraud sentencing, meaning, we're doing a deep comparative analysis of three recent high profile cases: MICHAEL AVENATTI, SUNNY BALWANI, and JULIE & TODD CHRISLEY. I never ceased to be amazed by the miraculous work Mark Allenbaugh does with sentencing stats, but, maybe more so than any of our previous collaborations, this one is chock full of so much practical advice for every lawyer and litigant facing sentencing. Besides the comparative overview we do a deeper dive into Balwani's sentencing proceeding, and Doug digs in to the sentencing memoranda here to grade the performance of the government and defense lawyers in presenting their written narrative to the court. The main takeaway from the statistics, is that when it comes to how the guidelines are applied, the only thing that seems certain is uncertainty. The real lesson here, therefore, is that telling a compelling a sentencing story is far more important than the seemingly random and irrational, dehumanizing sentencing guidelines. In other words, a client gets far more traction using 18 USC 3553 to build their powerful and persuasive sentencing narrative. IN THIS EPISODE: Statistical comparative analysis of Sunny Balwani, Michael Avenatti, Julie & Todd Chrisley, and Elizabeth Holmes sentencing outcomes; Whether judges artificially manipulate the guidelines to reach a result they feel is right; Proposing fixes to the very broken sentencing guidelines (spoiler alert: it's the sentencing TABLE that's the real problem); Story matters, perhaps most of all and likely explains much of these disparate outcomes; A scathing critique of the government's sentencing memo in Balwani; Kudos to the defense for drafting a much more compelling piece of narrative writing; Applying the "AND, BUT, THEREFORE" (problem-solution dynamic) narrative model to the defense memo; Stats on disparate treatment of men vs. (white, educated) women at sentencing; Stats on disparate treatment based on race; Could Balwani's case have beneffited from a sentencing video? Disabusing lawyers from going the old school route of character letter inundation; What's the right length for a sentencing memo; Why defense lawyers must still always discuss Covid, life expectancy, BOP health care, and overcrowding; How lawyers can take themselves out of the sentencing conversation by making an unsupported, outlandish, unreasonable sentencing recommendations; The one aspect of the government's argument that rubbed Doug really wrong; Some specifics about where Mr. Balwani may serve his sentence. LINKS: Elizabeth Holmes Sentencing Post-Mortem Podcast Episode: https://dougpassonlaw.com/podcast/elizabeth-holmes-sentencing-post-mortem/ ABT Book! When analyzing the defense memo, we see the ABT at work, clearly defining the problem the judge needs to address ("the But"). The book is 7 bucks on amazon if you want to learn more. If you're not up for buying the book, here's a short blog post on it: MARK's BIG BEAUTIFUL CHARTS: Mark, as always, came ready with some fantastic visual aids to help us better understand the comparative sentencing outcomes. If you want to see them, you can either visit the full shownotes page at: www.setforsentencing/balwani or check out the video version of the podcast on our youtube channel: https://www.youtube.com/channel/UCjUA_CTn7Kg3xU21r6zAjvw Patterson study: we can't stress this enough. Unless the crime is beyond atrocious, most judges will think long and hard before imposing a sentencing they believe will result in a defacto life sentence. Therefore, life expectancy could make a huge impact at sententencing. But do it right, using this study showing that life expectancy for incarcerated individuals is far different: https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2012.301148?role=tab Where a person will serve their sentence and how they will serve it can be mitigation. Sometimes an expert on this topic is necessary. Check out Episode 3, "Telling the Stry of Prison at Sentencing" with BOP Expert, Former Warden Maureen Baird. https://dougpassonlaw.com/podcast/telling-the-story-of-prison-at-sentencing/ Mitigation Videos : Could Sunny Balwani have beneffitted from a defense documentary or "sentencing mitigation video"? There is a debate about whether this could be counterproductive in high-dollar white collar cases. In this case, however, Passon makes a compelling case that the truth of Mr. Balwani's good character could have come to life in living color with a well-made defense doc. If you're interested in seeing some examples, visit www.dougpassonlaw.com

Rounding out an "all Doug December", this is absolutely my favorite podcast appearance, simply because Sigalle Barness brings so much soul to this space. Our conversation was from the heart, and she asked me really hard and interesting questions that pushed me beyond my comfort zone. Once you get through some familiar territory about my origin story into law and film, you get to some really deep stuff about how to forge meaningful connections with clients, why narrative is leadership, and why my 18-year-old son may be the one who has taught me the most about leadership. IN THIS EPISODE: 3 RS of sentencing narrative (revelation, relativity, redemption); Working with other lawyers to craft sentencing narratives; Helping clients open up and begin to share their stories;. A movie on my mind: Guess Who's Coming to Dinner; Building bonds of empathy – the guiding light to all we do; Why "pure production" filmmakers can falter in the legal space without proper attorney guidance and supervision; Why defense documentaries are nothing more than legal documents; The ABT and the Narrative Gym (of course); Ty Garbin case, the first defendant sentenced in the kidnap plot to kidnap the Gov of Michigan. I did the sentencing video for Ty's case, and telling his powerful true story resulted in a extremely just sentencing result; Why narrative is LEADERSHIP; and the disastrous results of a lawyer's failure to lead by controlling the narrative; Who is the leader in my life who has shaped my leadership journey (spoiler alert I already told you it's my son); The myth that "story" in the law is fakery. It's the pathway to the truth. Truth of the client, the truth of life, and the truth of the justice system. LINKS: Lawyers Who Lead Podcast: https://lawyerswholeadpodcast.com/ TY GARBIN VIDEO ON YOUTUBE: https://youtu.be/AOhOY3uuvRQ 3Rs Article (DOWNLOAD FOR FREE) at: www.setforsentencing.com/lawyerswholead Narrative Gym For Law on Amazon: https://a.co/d/7eQdLpC

Continuing my goal of showcasing my own work in December, this week's episode is all about my passion, my love, my baby; what we call DEFENSE DOCUMENTARIES. Some call them mitigation videos or sentencing videos. These are short, true, films produced for criminal cases (for plea negotion, sentencing, and post-conviction relief) and used to humanize our clients and advocate for them in a far more credible and powerful way. I always say if the judge could spend the time with our clients and their families that we do, they'd have a whole new perspective on the case. But our system isn't built that way. In fact, in some cases, the first time a judge ever lays eyes on a client is on the day of sentencing. Therefore, a well-made, ethically sound, defense doc is the closest we can come to bringing the judge off the bench and into our world. I have found these stories, told with pictures, to be far more powerful than the words and all the other paper we lawyers are taught to present to find justice at sentencing. I'm not just a lawyer, I'm an award winning filmmaker. I've had non-legal documentaries play at film festivals across the country and beyond. In 2005 I began combining my two passions of law and film, making my first defense defense documentary. My client received probation, and I never looked back. I've been leading the charge in this powerful form of legal advocacy ever since. A few years back, I was invited by Park Howell to be a guest on his incredible podcast, "The Business of Story". Park is also the co-author of the business version of the Narrative Gym book series. Special thanks to him for allowing this re-broadcast. Enjoy! IN THIS EPISODE: Doug's "origin story" - how he became a lawyer and a filmmaker; The story of the first defense doc Doug produced; Making empathy your guiding light at sentencing and using defense docs to do it; The important distinction between sympathy and empathy at sentencing; The 3 primary elements necessary for an effective defense doc; The "3Rs" of sentencing narrative. LINKS: The podcast opens with a STORY of a client I called "Daniel". At the time, I was using a pseudonym to respect his privacy. Since then, he's come out with his story and he was gracious enough to come on Set For Sentencing to tell it himself! This was EPISODE 11, "It's a Real Life: A Former Client's Redemption story." Park Howell found me through what turned out to be a very controversial NYT Piece profiling my work, Called "No Jail Time, The Movie". It was an NYT opinion piece or "op doc" that came out around 2017. We're going to do a whole other podcast about No Jail Time the Movie, the focus of which will be the ETHICAL implications of DOCUMENTARY FILMMAKING, as the filmmaker, Lance Oppenheim did just about everything an ETHICAL documentarian should not do to get his movie made and into the hands of the Times. The beauty of life, my practice, and my story journey has been constant learning and growth. But, it occurs to me as I relistened to this great discussion that it occurred before Park Howell and I fully discovered and embraced the narrative structure of "AND, BUT, THEREFORE" (ABT), pioneered by story expert Dr. Randy Olson. Therefore, we didn't yet have the full vocabulary to express the truth of narrative structure and the evolution of our process in helping others craft their brand stories and their legal stories. Now we do- and it's ABT all the way, baby. So, if I haven't included enough shameless plugs for the ABT, here's the Amazon link to buy my book, The Narrative Gym For Law: Intruducting the ABT framework For Persuasive Advocacy. Along the same lines, we discussed my "3Rs" of Sentencing Narrative - but at the time, those ideas were also not fully formed. Now they are! And you can have a copy of my article from NACDL's The Champion, for free. Just visit the shownotes on my website (www.setforsentencing.com/defensedoc), scroll down, and click the download button. Last, but certainly not least, if you are interested in learning more about The Business of Story and the incredible marketing and eductational opportunities Park Howell has to offer, visit: https://businessofstory.com

We have produced over thirty episodes of Set For Sentencing including our Web extras, AND we're just getting started. BUT no episode has yet solely focused on the work I do helping lawyers tell their most powerful sentencing narratives and producing defense documentaries to humanize clients and bring their life story into living color. THEREFORE, I thought it might be interesting to flip the script and showcase some other creators who have been gracious enough to invite me on their podcasts. That way, you can learn about what I do in more detail, from the perspective of some of my incredible partners in the world of business, science, and beyond! You may have noticed, the above description is written in "ABT" form. ABT stands for "and, but, therefore" and it is the quintessential expression of all narrative structure. First comes the "and" material, setting the stage with simple, non-controversial statements. Then, the PROBLEM is revealed in the form of the contradiction – the "But". Finally, the problem is resolved with a consequence, or a resolution (the "therefore"). See how that works? It's elegant in its surface level simplicity, and mesmerizing with the complexity that lies beneath. So, let's do it one more time, and then get to listening: Lawyers have always known that "story" is at the heart of persuasive advocacy AND this awareness continues to grow, BUT there's been a need for a simple, analytical way to teach it, which the ABT Framework now provides, THEREFORE, I give you Dr. Randy Olson, the big brain behind the ABT, and co-author of our book, The Narrative Gym for Law: Introducing the ABT Framework for Persuasive Advocacy! In this episode of "ABT Time Ep 30 - The Narrative Gym for Law discussion with coauthor and defense lawyer, Doug Passon: How police weaponize narrative to lull a suspect into waiving their Miranda Rights; How police weaponize narrative using "the Reid technique" to convince suspects to confess to crimes, even crimes they did not commit; What Miranda would look like, re-written using the "And, But, Therefore" Narrative template; Narrative is all about PROBLEM SOLVING; How, for better and for worse, lawyers and scientists have much in common; Introduction to Passon's work in defense documentaries/mitigation movies; How Passon's work ended up featured on The Simpsons!!??; A taste of "psychodrama"; The simplicity of the ABT and the clarity that comes through repetition (i.e. working your muscles in the narrative gym). LINKS: Here's a very simple blog entry I wrote on the ABT to give you a little better foundation on what we are talking about: https://dougpassonlaw.com/blog/the-three-most-important-words-in-persuasive-communication/ The Narrative Gym for Law: Introducing the ABT Framework for Persuasive Advocacy, by Dr. Randy Olson and Doug Passon. Available on Amazon: https://a.co/d/6M7C4YZ Randy Olson https://twitter.com/ABTagenda​ Randy's Blog: http://scienceneedsstory.com Learn more about the ABT Framework Course: http://www.abtframework.com/ Jen Martin https://twitter.com/scidocmartin https://www.instagram.com/scidocmartin/ Science Communication at the University of Melbourne: https://blogs.unimelb.edu.au/science-... Jen's Blog: https://espressoscience.com/ Related or Complimentary Podcast Episodes: Over the Rainbow & Into the Land of Legal Narrative (With Story Expert Matthew David) https://dougpassonlaw.com/podcast/over-the-rainbow-into-the-land-of-legal-narrative-with-story-expert-matthew-david/ Sentencing Psychodrama! https://dougpassonlaw.com/podcast/sentencing-psychodrama/ Narrative is Everything at Sentencing (More with Dr. Randy Olson) https://dougpassonlaw.com/podcast/narrative-is-everything/ Mitigation Videos : During our discussion of "power dynamics" in relation to sex offenses, I told the story of my case where our client was addicted to child pornography as the result of being sexually abused by another boy in his neighborhood. We did a sentencing mitigation video to better tell his story. If you'd like to see it, here is a link to the full video that our client graciously gave us permission to share: https://vimeo.com/173660942 Password: mitigation2016 FYI, Sentencing videos have been my passion for almost 20 years. If you have a case or client that might benefit from having their mitigation story told in this way, feel free to head to www.dougpassonlaw.com and set up a free consult.

Mitigation Specialists can be a lawyer's secret weapon. They help us dig for, develop, and deliver our powerful mitigation narratives. But many lawyers remain unaware of the import and effect of a full mitigation workup, or may not have the resources to do so. Therefore, helping us get set for sentencing is Victoria Rusk, founder of Heart of Justice, LLC, a mitigation firm devoted to what she refers to as a "whole person" approach to mitigation. Ms. Rusk authored the Mitigation Handbook and created an online course to train advocates in her unique brand of holistic sentencing. IN THIS EPISODE: What is a mitigation specialist and why we need one; The four most important things we look for to help make sense out of the terrible choices some of our clients make (spoiler alert – it's all about the brain!); Implementing a "holistic" approach to criminal defense; The goal of finding a mitigation narrative with universal themes that resonate with any decision-maker; Why LISTENING is one of the most important skills; The healing power of being heard and sharing one's story; The fundamental difference between sympathy and empathy; How and why Mitigation Specialists are bridge-builders; Telling the story of power dynamics in your mitigation narrative; Victoria's take on the Elizabeth Holmes sentencing and where her mitigation narrative may have been lacking; Practical advice for developing mitigation if you still do not have access to the resources to hire a mitigation specialist. VICTORIA RUSK: www.heartofjustice.org FREE RESOURCE: RECORD RELEASE FORMS: One simple thing a lawyer can do is keep a release of records in every new file. That way, your client can sign releases at the outset and you and your team can get started on record collection which may be essential to your holistic mitigation narrative. Even if you don't recognize the need to find a particular record, you will be happy to have these signed releases when something comes up and you need to act fast. For the free download, head to the shownotes page for this episode at: www.setforsentencing/heartofjustice MITIGATION VIDEO: During our discussion of "power dynamics" in relation to sex offenses, I told the story of my case where our client was addicted to child pornography as the result of being sexually abused by another boy in his neighborhood. We did a sentencing mitigation video to better tell his story. If you'd like to see it, here is a link to the full video that our client graciously gave us permission to share: https://vimeo.com/173660942 Password: mitigation2016 FYI, Sentencing videos have been my passion for almost 20 years. If you have a case or client that might benefit from having their mitigation story told in this way, feel free to head to www.dougpassonlaw.com and set up a free consult. RELATED/COMPLIMENTARY PODCAST EPISODES FOR A 1ST OR 2ND LISTEN! "Disrupting the Dehumanizing Sentencing Process" (Ep. 1) https://dougpassonlaw.com/podcast/disrupting-the-dehumanizing-sentencing-process/ The inaugural episode of Set for Sentencing features another amazing Mitigation specialist, Dr. Elizabeth Vartkessian, founder of Advancing Real Change, Inc. It's worth a listen if you haven't already. ------------ "Digging Deep With Defense Maps", (Ep. 10). This episode features a free, online comprehensive mitigation questionnaire created by attorney Charlie Asher. It's a good listen, but more importantly, this is a GREAT resources for attorneys who, for whatever reason, do not yet have access to mitigation specialists. Check it out! https://dougpassonlaw.com/podcast/digging-deep-with-defense-maps/

Lawyers are taught that logic is their best friend. BUT, in the real world, human beings make their most important decisions based on EMOTION, not LOGIC. So how do you present your facts in a way that taps into the genuine emotions of the decision makers? Come on people, you know this: A good, true, & well told story! Helping us get Set For Sentencing, and joyfully continuing our ongoing conversation on legal narrative, is story expert, Matthew David. As a screenwriter and Dr. Randy Olson's right hand man, Matt is deep into the world of narrative. He knows the "ABT" (AND, BUT, THEREFORE) template like the back of his hand. Even better, Matt formulated his own expression of the ABT, Dr. Olson now affectionately calls "the Matt Template" which goes like this: Heaven AND heaven, BUT hell, THEREFORE action! Now, let's see how that works in the world of sentencing storytelling (spoiler alert – it works like magic). This episode is not only entertaining AF, it's filled with practical advice on how to effectively and powerfully communicate your client's story to any decision-maker. IN THIS EPISODE: The "Matt Template" & how it will instantly allow you to begin crafting your compelling case narrative; The "And, But, Therefore" narrative template and examples; The "ordinary world" in the hero's journey – what and why it is; The two levels of hero's journey that exist in criminal case narrative; Somewhere Over the Rainbow – the quintessential musical manifestion of "heaven" in narrative structure; What it means to "amplify the pain" and why it is essential you do it in every story; The role of hero and sage in criminal sentencing stories –and how to tell the difference; Why the "hero's journey", embodied in the ABT structure, resonates with every human being; Using Star Wars, The Wizard of Oz, The Hunger Games, and the Matrix to illustrate all of these points; Our favorite screenwriting and story book recommendations. LINKS: Matt's website http://www.matthewmdavid.com/ THE NARRATIVE GYM FOR LAW: Introducing the ABT Framework for Persuasive Advocacy https://a.co/d/iOI4exU HERO'S JOURNEY VIDEO (what makes a hero?) https://youtu.be/Hhk4N9A0oCA Park Howell Business of Story Podcast https://businessofstory.com/storytelling-podcast/ Some of my blogs: "The 3 Most Important Words in Persuasive Communication" https://dougpassonlaw.com/blog/the-three-most-important-words-in-persuasive-communication/ "Five Reasons Every Lawyer Should Study the Art of Screenwriting & a Killer List of Resources to Get You Started" https://dougpassonlaw.com/articles/5-reasons-every-lawyer-should-study-the-art-of-screenwriting-and-a-killer-resource-list-to-get-you-started/

On Friday, 11/18/22, a federal judge sentenced Elizabeth Holmes to over eleven years in prison. Ms. Holmes was convicted after trial of a "fake it 'till you make it" fraud involving her company Theranos, and the revolutionary blood testing technology dream machine that was not to be. There are many lessons we can learn from what went down last week, so, helping us get Set For Sentencing, our old friend and guidelines expert, Mark Allenbaugh. Mark and I break down what it was, what it could have been, and what comes next. We also veer a way off the path, with admittedly wild speculation about whether Elizabeth Holmes may be on the Autism Spectrum, and if so, how that would have put her entire mitigation narrative in a different light. So, surf's up. Let's ride the wave of this consequential current sentencing event, and take away some practical tips for your own case in the process. In this episode: How Ms. Holmes won the day when it came to the guidelines calculation; How much time she may actually serve given "good time"credit, First Step Act credits, compassionate release, and 1/2 way house options; Comparing the government's narrative with the defense narrative - which narrative was more compelling and why; Breaking down the opening paragraphs of the government and defense sentencing memoranda; "Shirley's Law" and the need to take control of the narrative; Whether 130 character letters is too much of a good thing; A wacky theory about Autism. LINKS: www.sentencingstats.com We talked oh-so briefly about two other current events, the special counsel appointment for Trump and the fact that the Oath Keeper/Stewart Rhodes Jury is now deliberating. Mark and I have previously done podcast episodes on both topics, so here are links to those shows: MAR-A-LA-GOING TO PRISON? SEDITION EDITION: POTENTIAL OUTCOMES IN STEWART RHODES SEDITION TRIAL Autism: I mistakenly said 1/8 people have an autism diagnosis. Way off. It's more like 1/44. BUT, that's still alot. It means we've had clients with Autism Spectrum Disorder and We probably missed it. If you want to learn more, here's a prior episode on that too: UNDERTANDING AUTISM AT SENTENCING "Shirley's Law": If you don't control the narrative, someone else will and you will NOT like it! This comes from Dr. Randy Olson, and it's in the book we co-authored on legal storytelling, The Narrative Gym for Law, available on AMAZON. And, last but not least, I talked a fair amount (again) about my "3Rs of Sentencing Storytelling". These are the three major categories of stories any defendant can (and must tell) on their big day. If you'd like to download a FREE copy of the article I wrote on the subject, from NACDL's The Champion magazine, visit the shownotes on my website for this episode: https://dougpassonlaw.com/podcast/elizabeth-holmes-sentencing-post-mortem/

Watch this episode on YOUTUBE, on APPLE PODCASTS, or wherever you get your podcasts! Ideally, when a person who may have committed a crime is deemed to be seriously mentally ill, a fair and rational criminal justice system will give them meaningful mental health treatment in a humane environment. But, in the federal system, mentally incompetent defendants who have never been found guilty of ANY CRIME will be warehoused in federal prison and held indefinitely. Even those who are not dangerous and have been previously granted pre-trial release, can be sent to prison, having never been convicted of any crime. Donna Elm is a veteran defense attorney, author, former therapist, and has much experience in the realm of mental health litigation. She and I litigated just such a case together in 2006, and that man sits in prison, to this day, still having never been convicted of any crime. This is our system. At the center of it all, is Dr. Charles Thomas Sell. He was a St. Louis Dentist who resisted the government's effort to force medicate him with powerful anti-psychotic drugs, while in custody for seven years, again, having never been convicted of crime. He fought his case all the way to the supreme court and won. Passon documented his story on film. This episode is best watched on YOUTUBE b/c it contains several awesome video clips from our litigation and the Sell documentary. Head on over to the YOUTUBE CHANNEL and, while you are there, please subscribe! IN THIS EPISODE: The story of Dr. Charles Thomas Sell, and the origin of "Sell Hearings" The injustice of pre-trial detention solely to complete a competency evaluation; Federal psych facilities can more restrictive, less productive, and more dangerous than normal institutions; The trauma of forced medication; Life-threatening side-effects of anti-psychotics; Dr. Sell himself, on camera, telling his own story; Antipsychotics are unlikely help ameliorate symptoms of Delusional Disorder; "Rotting with Your Rights On" : If you WIN a "Sell Hearing" you LOSE. LINKS: Click here to download FREE Article on Litigating Sell Issues!

I hate to admit it, but we lawyers, we're really good talkers, but listening? Not so much. When your lawyer puts away the police report, sits with you, and says, "tell me your story, I'm all ears," then you know you are in good hands. But, being a good listener isn't always intuitive. Therefore, it's time we look to the world of improv to see what it can teach us about being better advocates for our clients. Actor, communications expert, and alumni of the famed Groundlings Improve in LA, Brian Palermo, is just the man to teach us how. IN THIS EPISODE: The difference between listening to respond and listening to understand; What it means to listen with a heightened emotional intelligence; The value of relatability; seeing yourself in the other; How you think you're presenting vs. how your audience is perceiving; The imperative of caring; The value of "full spectrum communication"; The power, import, and mindset of "yes, and…"; Narrative is everything, and the "ABT" is the most clear, most actionable expression of narrative structure; One easy improv exercise that will make you a better listener. LINKS: Palermo Improv Training Website Brian Palermo on IMDB The book, "Connection: Hollywood Storytelling Meets Critical Thinking" on Amazon The Narrative Gym for Law on Amazon Ep. 4 of Set for Sentencing, "Narrative is Everything at Sentencing" (a deep dive into the "ABT" Framework with Dr. Randy Olson).

Watch this episode on YOUTUBE, on APPLE PODCASTS, or wherever you get your podcasts! We like to say the United States has "the greatest system in the world." But do we? There's simply no way to answer that question until we learn how other countries adjudicate crime. Helping us get Set for Sentencing is Prof. Julian Roberts, a British scholar, sentencing expert, and Executive Dir. of The Sentencing Academy, UK, dedicated to developing expert and public understanding of sentencing in England and Wales. IN THIS EPISODE: The UK's criminal process from charge to sentencing; Why plea bargaining is rare in the UK system; The prevalence of pre-trial detention in the UK; Why non-lawyer magistrates impose 95 percent of sentences in the UK; The length of sentences in the US vs. in the UK; Whether mandatory minimums are a thing in the UK; The history and structure of sentencing guidelines in the U.K.; Application of an case example to illustrate the UK guidelines; Use of sentencing letters, witnesses, victim impact statements and sentencing videos; The catch-22 of "Indeterminate sentences for public protection"; The prevalence of life without parole or "whole life orders" in the UK; Separate sentencing regimes for juveniles, young adults and adults; LINKS: The Sentencing Academy, UK

Watch this episode on YOUTUBE, on APPLE PODCASTS, or wherever you get your podcasts! Lawyers have everything to learn from great stories on the screen, on the page, or on the stage. Legal Writing Professor Christina Frohock knows this well, as her latest law review article, Legal Fiction: Reading Lolita as a Sentencing Memorandum, brings into focus exactly what lawyers and clients can learn from the classic and infamous novel Lolita, and how we can apply those teachings to full effect at sentencing. IN THIS EPISODE: The fundamental unity between law and narrative; What every laywer and client can learn from great storytelling; How those lessons can be practically and credibly applied at sentencing; Writing style tips that every lawyer can use, including alliteration and word pictures; How to spot clues of historical trauma and other mental health issues in a client's narrative that may help put their crime in context; The difference between sympathy and empathy at sentencing. LINKS: Prof. Frohock's book, Small Town GTMO: The Layers of Estate, Sovereignty, and Soil in U.S. Naval Station Guantanamo Bay, on Amazon. Five Reasons Every Lawyer Should Study the Art of Screenwriting, and a Killer Resource List to Get You Started, by Doug Passon. Doug's book on Legal Narrative, co-authored with Story Expert, Dr. Randy Olson, on Amazon. Since the idea of narrative's unity with the law was the central theme of this episode, you might enjoy episode, X of the podcast, "Narrative is Everything at Sentencing", featuring Dr. Randy Olson.

Watch this episode on YOUTUBE, on APPLE PODCASTS, or wherever you get your podcasts! Helping us get Set for Sentencing, Professor Doug Berman, author of the Sentencing Law and Policy Blog. Prof. Berman helps us make sense of two major sentencing events of the past week - President Biden's blanket pardon for federal marijuana possession and a Florida Jury's non-death verdict in the penalty phase of the trial of Parkland shooter Nikolas Cruz. IN THIS EPISODE: Big picture of Pres. Biden's pot pardon; Historical precedent for "blanket pardons"; What the future may hold for further action; Potential political and practical consequences for state and federal sentencing; Whether pardoned conduct can ever really be expunged from your record; Dissecting the non-death verdicst for Nicholas Cruz, perpetrator of the horrific Parkland school massacre; and What the verdict tells us about the goals of punishment. LINKS: Berman's Blog on Sentencing Law and Policy Set For Sentencing, Ep. 6, "The Devil We Know" another great episode with Prof. Berman doing a deep dive into the US Sentencing Guidelines.

For the first time in nearly four years, there is a fully staffed, fully functioning United States Sentencing Guidelines Commission. They have published a list of priorities for the 2022-23 cycle and are soliciting public comments until Oct. 17, 2022. But many may not realize just how consequentional some of the proposed changes could be. Therefore, helping us get Set For Sentencing, in an unprecedented double header, our returning champion, Mark Allenbaugh of Sentencingstats.com! IN THIS EPISODE: federal sentencing guidelines overview; The inside scoop on the commission; The need to expand arguments for early release; Congress's role in directing or ratifying guideline amendments; How the guidelines account for past criminal history and proposed amendments to those provisions; Revisiting the Commission's original mandate to avoid custodial sentences when possible for all non-violent offenders; The one sentencing statute (besides 3553) that every federal defendant must invoke as often as possible, How guideline amendments can help fix overcrowding; It's time to stop courts from using acquitted conduct against a client at sentencing; Things not on the Commission's priority list that should be; Last but not least – what can YOU DO to make your voice heard (see link below). LINKS: FEDERAL REGISTER NOTICE OF PROPOSED 2022-2023 PRIORITIES SUMMARY: As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with Rule 5.2 of its Rules of Practice and Procedure, the United States Sentencing Commission is seeking comment on possible policy priorities for the amendment cycle ending May 1, 2023. DATES: Public comment should be received by the Commission on or before October 17, 2022. ADDRESSES: Comments should be sent to the Commission by electronic mail or regular mail. The email address is [email protected](link sends e-mail). The regular mail address is United States Sentencing Commission, One Columbus Circle, NE, Suite 2 500, South Lobby, Washington, DC 20002 8002, Attention: Public Affairs – Priorities Comment.

Watch this episode on YOUTUBE, on APPLE PODCASTS, or wherever you get your podcasts! Steve Bannon is set for sentencing on Oct. 21, 2022, after a jury found him guilty of two counts of Contempt of Congress. But, like many of the recent Trump-adjacent prosecutions, we are in uncharted waters. Therefore, helping us get Set for Sentencing to sort all this out, our returning champion, Mark Allenbaugh. IN THIS EPISODE: Guideline and statutory analysis for the crimes of conviction; Considering pardoned conduct at sentencing; The so-called "trial penalty" and whether it will apply here; Whether Bannon can earn early release through good time or First Step Act credits; Whether Bannon's new charges can be used to enhance his sentence; Whether he can stay out of jail while his appeal is pending; Possible mitigation Bannon should offer to lessen his sentence; Whether the sentence can satisfy the "goals of punishment"; Predictions as to what sentence the judge will actually impose. LINKS: Some other great Mark Allenbaugh episodes! MAR-A-LA-GOING TO PRISON? Worst Case Scenarios if DJT goes to the BOP. SEDITION EDITION: Sentencing For the Crime of "Seditious Conspiracy". Watch this episode on YOUTUBE, on APPLE PODCASTS, or wherever you get your podcasts!

Prison consultants have been receiving dubious attention in the press lately. The truth is, a qualified prison consultant can be a valuable member of a well-managed defense team. But, beware of so-called experts who promise you the moon for a fee. Helping us get set for sentencing is Walt Pavlo, the founder of Prisonology, a collection of exceptionally qualified prison consultants, most of whom are former high-level Bureau of Prisons officials. IN THIS EPISODE: Deconstructing the New York Times piece about "a new breed of fixers"; Picking the right consultant for the job; The kind of experts connected to "prisonology"; Example of "RDAP Law" who weren't lawyers, gave terrible advice, bilked clients out of millions, and went to prison as a result; What are reasonable fees for Prison consultants; Limitations of prison consultants; The importance of finding a prison expert that can testify or submit sworn declarations to a judge at sentencing; How finding the right expert can save the attorney time and the client money; How the wrong consultant may put work product and attorney-client privilege at risk; How the attorney's failure to properly manage a consultant/expert can lead to disastrous results; How an attorney's failure to properly communicate and connect with a client may drive them into the arms of a charlatan; How to properly vet a potential prison consultant; LINKS: NYT Article: Want to Do Less Time? A Prison Consultant May Be Able To Help Prisonology Walt Pavlo at Forbes.com Prison consultant, former BOP Warden, Maureen Baird was an early guest on the podcast. This is a great example of someone who can really help at sentencing. Listen (or re-listen) to Set for Sentencing, Ep. 3, Telling the Story of Prison at Sentencing!

Watch on YOUTUBE or LISTEN ON APPLE PODCASTS Helping us get set for sentencing, attorney Alan Ellis. He's an expert in all things sentencing and post-conviction relief and the author of the wildly popular Federal Prison Guidebook. IN THIS EPISODE: The importance of knowing your Judge; How to develop mental health mitigation; The need to develop a powerful and credible narrative; The need for qualified sentencing experts; Pros and cons of sentencing letters; Restitution as mitigation; The need to properly prepare a client to allocute; Effective use of sentencing mitigation videos; Showing true character with things your client has done "when no one is keeping score"; The importance of developing early mitigation and getting to decision makers (prosecution and probation) well in advance of sentencing; Effective sentencing memoranda: less is more, and no boilerplate; Putting pictures in pleadings; The truth about Prison Consultants, or so-called "fixers"; Vouching - can you do it? LINKS: Law Offices of Alan Ellis Federal Prison Guidebook Taking a page from death penalty mitigation: A theme running through this disucssion is the need for EARLY and thorough mitigation development. This brings us back to our very first episode with death penalty mitigation specialist, and CEO of Advancing Real Change, Inc., Dr. Elizabeth Vartkessian. You can watch that episode here on YOUTUBE or listen on APPLE PODCASTS. We also sung the praises of perhaps the most qualified "prison consultant" in the profession, former BOP warden, Maureen Baird. I was also fortunate to have her on the podcast early on, so here's the YOUTUBE and APPLE links for that great episode as well. FREE RESOURCE: Visit the shownotes to download a copy of the "How To Write a Sentencing Letter" document Alan and I discussed. Remember, sentencing letters are about QUALITY, not QUANTITY. They can be useful at sentencing, if done right. But they are simply one small element of a much bigger mitigation narrative. Ideally, they are carefully vetted to ensure they support, rather than contradict the theory and themes of your sentencing presentation.

The criminal system in Maricopa County, Arizona is missing the Justice. It's the fourth largest county in the nation, and the eighth largest incarcerator IN THE WORLD. The County Attorney's office has been infamous for decades for overcharging, systemic bias, and flat-out corruption. Helping us get Set For Sentencing this week is Julie Gunnigle. She's a democrat running for County Attorney as a common-sense reformer. She is fearless in her assertion that she will never prosecute women or their doctors for abortion. Her opponent would enforce "trigger" laws on the books from the civil war era. She promises to increase diversion programs, regulate overcharging, give line prosecutors more discretion to do justice, and make other needed reforms to reduce mass incarceration in AZ. IN THIS EPISODE: Changing the culture of the historically corrupt, ethically challenged, Office of the Maricopa County Attorney; Giving discretion back to line attorneys to fulfill their obligation to do justice; Fixing the fact that Maricopa County is the 8th largest incarcerator in the world; Proven, data-driven, approaches to reduce mass-incarceration at low, or no cost to taxpayers; Reigning in the (over) charging power of the prosecutor that dates back at least to the time of Rick Romley (including the story of how Rick Romley tried to send a sixteen year old boy to adult prison for 30 years for pointing an unloaded gun at neighborhood bullies); Instituting new policies that would restrict a prosecutor's ability to alleged draconian enhancements that result in long, mandatory prison terms; The importance of clearing the backlog of marijuana expungements by making expungement universal & automatic; Combatting disparate racial outcomes in Maricopa County; Goals for meaningful police reform; Promoting diversity within the office, which is currently seriously lacking. LINKS: For a deeper dive into systemic racism, click here to listen to last week's incredible talk with Jelani Jefferson-Exum, Dean of the Detroit Mercy School of Law. We talked about a terrible example from the Rick Romley era of gross overcharging of an early client of mine, Jefferson Stackhouse, a 16-year-old boy who pointed an unloaded, antique, shotgun at some neighborhood bullies. They charged Jeff as an adult and tried to put him in prison for decades. It was a sickening example of the unfettered charging power and inhumane treatment that is still commonplace for this office. Talking to Julie Gunnigle brought back a flood of bad memories about this historically horrible office: Click here to watch a riveting 60 Minutes story about Jeff's case. Click here to read, "The Maximum Security Adolescent" a NYT Sunday Magazine article about Jeff's case. A great example of a County Attorney model that involves transparency around racial disparties and data-driven reform, from, as always, BERMAN'S SENTENCING BLOG!

Black Americans and other minorities are disproportionally represented in the numbers of those charged, the kinds of charges they face, and the length of sentences imposed. The question is WHY? The answer is far from simple, but it's one that everyone needs to better understand. Helping us get Set for Sentencing, Dean of the Detroit Mercy School of Law, Jelani Jefferson-Exum. Dean Jefferson-Exum focuses her research, writing, and teaching on sentencing and systemic racism. She is dedicated to introducing new ways to think about the goals of punishment in order to alleviate the consequences of built-in bias in our American system of justice. IN THIS EPISODE: What we really mean when we talk about systemic racism; How the undeniably racist origins of policing render African Americans "presumed punishable"; The important difference between crime "bolstering" vs. crime "revealing" statistics; Empathy and connection as a first step towards antiracism; The opioid crisis and the "de-otherization" of drug addiction; Taking control of the "defund the police" narrative; Some examples of putting antiracism into practice at sentencing; Practical takeaways from Dean Jefferson-Exum's research interviewing judges about what influences their sentencing decisions; How Dean Jefferson-Exum can serve as an expert at sentencing to put guidelines and other issues in the proper context. LINKS: Dean Jefferson-Exum's Curriculam Vitae Dean Jefferson-Exum's TEDx talk: Presumed Punishable Dean Jefferson-Exum's TEDx talk: Death Penalty in the Streets

Helping us get Set for Sentencing, Constitutional scholar and extraordinary criminal defense lawyer, Robert McWhirter. Bob is a nationally and internationally known speaker and author on trial advocacy, immigration law, and the history of the bill of rights. His most recent book, is Fixing the Framers' Failure: 13th, 14, 15th Amendment and America's New Birth of Freedom, available for pre-order on Amazon. Bob's encyclopedic knowledge of not just the law, but the history behind it, makes this conversation particularly unique and fascinating. IN THIS EPISODE: What is the "Framers' Failure" and how do we fix it; Harnessing the power of visual advocacy at sentencing and beyond; The persuasive power of creating "the singular moment"; The importance of telling the "deeper truth" of your sentencing story; The Bill of Rights at Sentencing: the Eigth Amendment Cruel and Unusual punishment and Sixth Amendment Right to Counsel; The origin of the word Draconian and wild story of Draco's demise; The Framers' intent to make the Constitution a LIVING, BREATHING, document that serves an ever-evolving society; Racist & Q-Anon undertones at now Justice Ketanji Brown Jackson's confimirmation hearing regarding interrogation of her past sentencing decisions; Killing "the algorithm" with outside the box sentencing advocacy; LINKS: Fixing the Framers' Failure, on Amazon Bills, Quills & Stills, on Amazon The Constitution & Donald J. Trump | Episode ONE: "The Electoral College", free 7 minute video on Vimeo This video was produced shortly after the election of 2016. It's an incredible primer on the Electoral College, and even more relevant in light of the events of 2020. Constitution & Trump, a free 6 minute video on Vimeo (short clip played during this podcast)

I've said it before, and I'll keep saying it – at sentencing, narrative is everything. Helping us get Set For Sentencing is a man who knows how to tell GREAT stories. Mark Hsu is an attorney and the author of a sweet, poignant, and incredibly well-written book called, Please Open In the Event of My Death: A Father's Advice To His Daughters In Case Something Horrible Happens (Which Hopefully It Won't But Just In Case), and that title says it all. IN THIS EPISODE: The power of telling your own story and sharing it with others; Advice on how to become a better writer and storyteller; Books & Resources on writing that helped him hone his craft; How learning the craft of writing & screenwriting will make you a better advocate; Why simplicity is the secret sauce of all great narrative persuasive communication; The need for "emotional intelligence" in writing, in the law, and in life; Systemic injustice through the lens of the "cosmic calendar"; and Lots of awesome clips from the audible version of the book! LINKS: Please Open in the Event of My Death on Amazon.com Please Open on social media: Twitter, Facebook, Instagram, & Tik Tok Mark gave us some great suggestions for writing resources. I have a pretty good list as well, including links to sites where you can access free screenplays: 5 Reasons Every Lawyer Should Study the Art of Screenwriting — and a Killer Resource List To Get You Started Lastly, by far the most worthless link I will ever offer, but since we talked about it, here's my Chiuaua William's Tik Tok, @williamvonarsehole.

We are all still reeling from the monumental events at Mar-a-Lago last week. Everyone is presumed INNOCENT until proven guilty and there's still so much we don't know about what's going on. But the search and seizure of the former president's residence is unprecedented & historic. Therefore, it's important to consider the potentially monumental sentencing possibilities if Trump is convicted of the crimes enumerated in the search warrant. Helping us get Set For Sentencing, a returning champion to the podcast, sentencing guidelines expert, Mark Allenbaugh. In this episode, Mark and Doug discuss these fundamental questions: How much prison time would Trump potentially face for the charges listed in the search warrant; Could he be held in custody while awaiting trial; What arguments might be made for and against him at sentencing; Where might he spend his time in custody should he be sentenced; What would the conditions of confinement be in prison (spoiler alert - if you think he's going to a "country club", think again). LINKS: As always, if you want to know more about Mark, go to www.sentencingstats.com

Helping us get Set for Sentencing this week, an amazing human who happens to be not only a former client, but also the subject of the first full-on sentencing mitigation video ever produced in Federal Court, almost twenty years ago! I am so grateful that Dustin Arnold agreed to share his incredible journey from gifted student to deep addiction, from arrest to sentencing, and from rehabilitation to true redemption. His story continues to inspire and amaze. Dustin tells us what it feels like to put his fate and future in the hands of a lawyer. He also talks about what it was like to tell his story in front of a camera for a "sentencing mitigation video". What's a sentencing mitigation video, you ask? Well, take a listen! We didn't know it at the time, but we were setting the wheels in motion for a completely new and powerful way to advocate. Flash forward twenty years and the process is gaining momentum in courts all over the country. Sentencing videos were even the subject of the Simpsons (S. 30, ep. 15, "101 Mitigations"). So buckle up, and let's get Set For Sentencing! IN THIS EPISODE: What it feels like to be a client in the hands of a lawyer who isn't doing their job (and one who is); How the system can actually do more good then harm when the right resources and the right decision-makers are in place; Explanation of sentencing mitigation videos and how they can make all the difference in a case; A case study in why having discretionary sentencing (and a thoughtful judge) is vital; Mitigation videos are not simply for "wealthy" clients who are trying to "buy a lower sentence." This technique was born and raised in the office of the Federal Public Defender; Sentencing videos on The Simpsons?!; The seed that grew into the mighty oak – the evolution of mitigation filmmaking; Dustin's best advice, heart to heart, from a client to a lawyer; Who doesn't love a happy ending???? LINKS: The Simpsons, "101 Mitigations" Snippit of Dustin Arnold Sentencing Video FREE RESOURCE: Doug Passon's Article from The Champion on Sentencing Mitgation Videos: Using Moving Pictures to Build the Bridge of Empathy at Sentencing. Click here to Download

Understanding, let alone telling, your client's story can be a daunting task. Lawyers often lack the time and resources to peel back the layers of a client's life and properly put their offense in context. Thankfully, they now have a free, powerful, comprehensive and confidential tool to help get the job done – Defense Map. Helping us get Set For Sentencing is Charlie Asher, the founder/creator of defensemap.com. The mission of Defense Map is to help balance the scales of a criminal justice system rife with wrongful convictions, uninformed and excessive sentencings, and mass incarceration. Defense Map gives attorneys a powerful, free resource to understand their clients' full defenses and backstories, to engage meaningfully with them, to help clients better understand themselves, and to give their lawyers what they need to persuade decision-makers to do the right thing at sentencing and beyond. IN THIS EPISODE: The free, powerful and confidential online sentencing mitigation tool called "Defense Map" Content and categories of Defense Map; Examples of how Defense Map is used in developing mitigation; Confidentiality of Defense Map; How going through the process can help not just the lawyer, but the client; How in-custody clients can access Defense Map; Defense Map is bi-lingual, offers a juvenile version and audio assistance for those that cannot read; Defense Map strengthens lawyer and client relationship; Static vs. Dynamic mitigation; The constitutional mandate for "balance of forces" in Warrius v. Oregon. LINKS: www.defensemap.com Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) was mentioned a couple of times. Here's an OYEZ link to read the case and hear oral arguments. Charlie made mention of a sentencing mitigation video I produced for the case involving the kidnaping of the Gov. of Michigan. That video is publically available at THIS YOUTUBE LINK. Sentencing mitigation videos have been around for almost twenty years. I know, because I pioneered this powerful advocacy tool. For more about that, visit www.dougpassonlaw.com

In a criminal case, the contents of your computer can be your saving grace or the nail in your coffin. This is particularly true in cases involving online offenses. But, taking the government's word for what they found during the search of your devices is a very bad idea! Helping us get Set For Sentencing is computer forensics expert, Tami Loehrs. She brings more than 30 years of legal and computer experience, as well as hundreds of hours of computer forensics training to the table. Ms. Loehrs gives us the straight scoop on how to defend crimes involving computers, particularly at sentencing. Her message is simple -- when it comes to computer forensics, question everything! WARNING: This episode is not for the faint of heart. Computer forensics issues most often arise in the context of offenses involving child sexual exploitation, either through the downloading and sharing of offensive images, or improper contact with minors online. These are horrible crimes, and we talk in detail about the facts of specific cases. IN THIS EPISODE: The importance of using forensics to put the underlying offense in context at sentencing; Just because something is deleted doesn't mean it's deleted; How law enforcement routinely attempts to thwart comprehensive forensics evaluations by the defense; Just because it's on your computer doesn't mean you're guilty; The need to examine devices the government ignored; Controlling the "re-victimization" narrative in CP sentencings; Do the feds have the digital tools to eradicate CP? If so, why don't they? LINKS: Visit, loehrsforensics.com for more information. For articles and other information written by Ms. Loehrs, visit the MEDIA PAGE on her website. Here's an earlier episdode we did after the Supreme Court confirmation hearing of Justice Ketanji Brown Jackson, where the CP guidelines were front and center. It will give deeper context to the conversation with Ms. Loehrs: Senators Sell Sentencing Snake Oil @ KBJ Confirmation Hearing. Another related episode is #5, Understanding Autism at Sentencing. Many of the cases involving clients on the Autism Spectrum are online offenses and therefore likely require forensics. Lastly, if you would like to see the redacted exceprts from the sentencing video played during the podcast, please visit our YOUTUBE Channel for the video version of the podcast. While you are there, please hit the SUBSCRIBE button!

Helping us get Set for Sentencing this week, Patrick Barone, a phenomenal Michigan criminal defense lawyer and certified practitioner of psychodrama, a powerful and popular tool used in psychotherapy. Done right, lawyers can deploy psychodrama techniques in and out of court. It gives us a new path to discover credible and heartfelt ways to reframe our sentencing narratives. Perhaps most important, psychodrama deepens the participant's capacity for empathy, which is in short supply in our system. Patrick Barone has fully embraced psychodrama in his practice and his life. After learning about the technique at the famed Jerry Spence Trial Lawyers College, he completed a 1000 hour certification. and went on to receive the highest level of certification as a "T.E.P." (Trainer, Educator and Practitioner) of Psychodrama, Sociometry and Group Psychotherapy. Along with clinical psychologist Dr. Elizabeth Corby, he then founded the Michigan Psychodrama Center which provides workshops, education and trainings. IN THIS EPISODE: Defining psychodrama and its use in criminal case preparation; How psychodrama helps develop a deeper understanding of our clients or other players in the process; Psychodrama as an empathy generator; A deep (psychodrama) dive into Doug's traumatic criminal past (spoiler alert, it was a curfew violation); Using psychodrama to overcome confirmation bias; Using psychodrama to control the sentencing narrative; Psychodrama in capital cases; Using psychodrama to help your client more genuinely express remorse and acceptance of responsibility at sentencing. LINKS: Patrick Barone (www.baronedefensefirm.com) Michigan Psychodrama Center

Helping us get Set for Sentencing this week, extraordinary defense attorney and fantastically empathetic human, Ashley Adams. Ms. Adams brings a unique perspective, having spent several years as an Assistant United States Attorney, prosecuting predominantly white-collar offenses. This episode is jam packed with incredible information, great stories, new ideas, and tons of heart. It also ends up being a great prelude to two upcoming episodes on the topics of psychodrama and defensemap.com. Stay tuned and please follow on iTunes and subscribe on YouTube! IN THIS EPISODE: How her experience as a federal prosecutor shaped the defense lawyer she would become; The need for prosecutors to better understand their own power and the human implications of their charging, plea and sentencing decisions; Real-life stories from the trenches about some of our toughest cases, some even with happy endings; The "3 Rs" of sentencing Mitigation: Revelation, Relativity and Remorse; The unfortunate ongoing abuse of prosecutorial power at the Maricopa County (Arizona) Attorney's Office; The incalculable value of conducting an early & thorough mitigation investigation; An introduction to a new powerful, free online resource: a comprehensive, confidential questionnaire called "Defense Map"; An introduction to "psychodrama" and how it can help lawyers connect with clients and witnesses-- and develop a better understanding of themselves in the process; LINKS: Adams & Associates, PLC Defense Map (Free, confidential, online mitigation & defense tool) FREE RESOURCES: The "3Rs" of Sentencing Storytelling article by Doug Passon. (Scroll to bottom of page for Download button)

Helping us get Set For Sentencing, Prof. Douglas Berman. He is is the Newton D. Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center, housed in the Moritz College of Law of The Ohio State University. Professor Berman is the creator and author of the widely-read and widely-cited blog, Sentencing Law and Policy. The blog now receives nearly 100,000 page views per month. In this episode: What non-capital defenders can learn from looking at death penalty mitigation and trends; Making the case for jury sentencing in non-cap cases; How draconian sentencing laws and unfettered prosecutorial discretion corrupts justice and results in innocent people being compelled to plead guilty; The hope that the US Sentencing commission will institute meaningful changes to the federal sentencing guidelines; The future of compassionate release and First Step Act implementation; The debate over scrapping the guidelines vs. implementing incremental change; How to leveling the playing field by building more mitigators into the guidelines; The "one thing" that must animate all good sentencing advocacy LINKS: Sentencing Law and Policy Blog Drug Enforcement and Policy Center 28 U.S.C. Sec. 994 (j), which essentially creates a presumption of non-incarceration for non-violent, "non-serious", first time offenders. BUT, see these 2021 statistics from the US Sentencing Commission, showing that over NINETY PERCENT of defendants receive a PRISON sentence instead.

At least 1 in every 54 Americans are on the Autism Spectrum. But prosecutors and judges often fail to understand what Autism is, why those on the spectrum can be morally blameless for the crimes they have committed, why they are they unlikely to reoffend, and why sending them to prison is cruel and unusual punishment. Helping us get Set For Sentencing this week, Attorney Jamie Sparks and Dr. Toni Sparks, Asst. Prof. of Practice, Disability & Psychoeducational Studies at the Univ. of Arizona. A dynamic duo, these two sisters combined their expertise to achieve an incredible result for their Autistic client accused of a serious online offense. IN THIS EPISODE: What is Autism Spectrum Disorder (ASD) and why it always matters to the outcome of your case; How do we recognize when a client may be on the spectrum; Tackling the gross misconception that those with ASD are incapable of empathy; Why those with ASD are particularly vulnerable to abuse in the system; Why the term "High Functioning" Autism is the ultimate misnomer; Why finding the right expert is critical, as not all psych professionals fully understand Autism; Tackling the daunting task of educating the prosecutor and judge about Autism and its relevance; The exponentially punitive nature of a prison or jail sentence for those with ASD; Overcoming government skepticism when there has been no ASD diagnosis prior to arrest; Disability laws that give rise to client rights & protections if they are sentenced to jail. LINKS: Law Offices of Jamie Sparks Toni Sparks, Asst. Prof. of Practice, Disability and Psychoeducational Studies, University of Arizona

The 1/6 hearings are in full swing. We don't know what will come of it. What we do know is that there have already been two major indictments brought by the DOJ alleging the crime of "Seditious Conspiracy". But, it is a total mystery what kind of sentences a judge may impose if convictions ensue. This crime has little precedent in American jurisprudence, and the sentencing guidelines contain more questions than answers. So, we thought it be good to unravel this whole mess with our resident federal sentencing guideline expert, Mark Allenbaugh of sentencingstats.com! This is a "YouTube Bonus" episode, because Mark has great visual aids, so the audio stream only tells half the story. Also, we are trying hard to build our YouTube presence, so we would be eternally grateful if you could, go to our YouTube channel (as the cool kids say), "smash that like and subscribe button!"

Lawyers are fundamentally problem solvers; and narrative is, as Dr. Randy Olson tells us, is "a series of events that occur in search of a solution to a problem." So, if you want to persuade decision makers to reach the right result at sentencing, you must communicate in narrative. Helping us get set for sentencing this week is communications expert, author, filmmaker, and teacher Dr. Randy Olson. Dr. Olson has cracked the code of narrative structure. He has taken the myriad complex and often inaccessible story models developed over centuries, and boiled them down to the elegantly simple, immediately actionable, format of "AND, BUT, & THEREFORE". These three magic words embody the indispensible pillars of all great communication: agreement, contradiction & consequence. Randy has authored several books on narrative communication, including the legal edition of his "Narrative Gym" series, of which I am a co-author. This episode marks our first deep dive into the world of narrative, and I'm so excited to start this conversation with you! IN THIS EPISODE: Lawyers are problem solvers, narrative is problem solving; Why we must embrace, not fear, the word "story" at sentencing; How to craft a compelling narrative guaranteed to engage a listener and compel them to action; Brain science behind narrative communication; The difference between "story" & "narrative"; The "rule of replacing" – a simple technique that can help transform boring and confusing written communication into something clear and persuasive; The "Dobzhansky" template & the power of finding ONE narrative thread to tie your presentation together; Dobzhansky at work in the OJ Simpson case; The magic of "arouse and fulfill" in persuasive advocacy; The need to heed "Shirley's Law", and take control over your sentencing story; Analysis of MLK's "I have a dream" speech as an example of a perfect "ABT" narrative construction. LINKS: The Narrative Gym For Law: Introducing the ABT Framework for Persuasive Advocacy (Amazon) www.abtframework.com

Prison is not just a potential outcome of sentencing; it can and should be an influencer at sentencing. Where a person will serve their time, how a person will serve their time, and what information follows them into an institution are all integral components of a comprehensive, empathy-based, sentencing presentation. Helping us get set for sentencing is Maureen Baird. Ms. Baird retired after a distinguished career with the Federal Bureau of Prisons (BOP), including serving as warden of some of the toughest prisons in the system. Ms. Baird now serves as a consultant and expert witness on all things related to the BOP. IN THIS EPISODE: Hope and fear in the BOP; The counterproductive outcomes of draconian sentencing laws; The lack of meaningful care and treatment necessary to facilitate rehabilitation; How telling the story of the "where and how" a person will serve their sentence can influence the outcome of a sentencing hearing; Some practical ways to integrate BOP/Prison issues into your sentencing presentation; Sample testimony Maureen has given in sentencing mitigation video subsmissions (28:30); Sentencing and BOP issues for elderly clients and clients with extraordinary mental or physical health issues; Serving time during a pandemic; How to attack the BOP's boilerplate response when lawyers raise the issue of lack of proper care; The essential role the pre-sentence report plays in BOP placement; Understanding the BOP's "security scoring system"; How to craft a meaningful placement recommendation for the judge. LINKS: Maureen Baird @ LinkdIn: https://www.linkedin.com/in/maureen-baird-37637b73/ "Earning Early Release Under the First Step Act" Bloomberg Law, Maureen Baird, Mark Allenbaugh, Alan Ellis: https://news.bloomberglaw.com/us-law-week/earning-early-release-under-the-first-step-act?context=search&index=1 www.prisonology.com FREE RESOURCES: Visit the podcast page for more information and free resources related to this episode!

Helping us get set for sentencing is David Rudolf -- attorney, author, and lead counsel in the acclaimed Netflix documentary, "The Staircase", which is now a controversial HBO mini-series. Mr. Rudolf has been on the front lines of justice for decades as one of the nation's preeminent trial lawyers. He has dedicated his life to giving voice and vindication to a special class of victims in our system -- those convicted and sentenced for crimes they did not commit. He recently published a riveting look at our dysfunctional system, American Injustice: Inside Stories from the Underbelly of the Criminal Justice System. In this whirlwind discussion, we cover: Rudolf's new Book, American Injustice; The Staircase documentary and the new, highly fictionalized HBO miniseries; Draconian sentencing statutes and guidelines; How confirmation bias and tunnel vision can corrupt every aspect of the criminal justice process; The need for accountability for prosecutors and police when the innocent are wrongfully convicted; How becoming a client made him a better lawyer; Advice for criminal defense lawyers struggling with work life balance; The coercive nature of plea bargaining; How to handle sentencing when your client maintains innocence; AND, the very best ways to inject humanity back into our broken system; Oh, yes, for all you diehard Staircase fans, we do discuss "the owl theory"! LINKS: David Rudolf's Website: https://davidsrudolf.com/ Abuse of Power Podcast: https://www.audible.com/pd/Abuse-of-Power-with-David-Rudolf-and-Sonya-Pfeiffer-Podcast/ Incredible 3-hour CLE offering on the Staircase: https://www.nacdl.org/Event/The-Staircase-Lessons-from-the-Michael-Peterson-Mu https://vimeo.com/332364136 (staircase CLE teaser) HBO Rebuttals: https://www-newsweek-com.cdn.ampproject.org/c/s/www.newsweek.com/i-was-michael-peterson-lawyer-still-believe-hes-innocent-1708072?amp=1 https://variety.com/2022/tv/news/staircase-michael-peterson-lawyer-david-rudolf-criticizes-hbo-max-show-1235279215/?fbclid=IwAR2rJLrLZWlNLhQZtQTYKNXanxTANQU9H6MtA6kEpTibXBmbTJjzJKlO2Ew# the owl theory: https://amp-charlotteobserver-com.cdn.ampproject.org/c/s/amp.charlotteobserver.com/entertainment/tv/article261821775.html

I can think of no better guest to officially launch the Set For Sentencing Podcast than the incomparable Liz Vartkessian! As the Executive Director of Advancing Real Change, Inc., she understands that narrative is everything at sentencing. She knows that our clients are more than their worst deed, and more than just a stack of paper in a file. Her amazing organization takes an undeniably essential humanistic approach to the development of crucial sentencing mitigation in capital and serious non-capital cases. I have learned so much from Liz and the fantastic trainings her organization provides over the years, and I can't wait for you to meet her. DISCUSSED IN THIS EPISODE: How narrative is everything when it comes to sentencing mitigation; How to mine for the raw materials of a winning mitigation narrative; The fantastic work Advancing Real Change does in capital and non-cap cases; Some basic, but essential, things a lawyer can do to develop a humanizing mitigation narrative; The importance of understanding and recognizing trauma; Knowing when you do and do not need an expert; Dr. Vartkessian's groundbreaking research on the Capital Jury Project and what motivates juries to impose a life, rather than death, sentence; Advice to help lawyers communicate the humanity of their client to the decision maker(s) in their case; How to prepare innocent clients for allocution; What working with those who have committed murder can teach us about justice (and Liz's book in the works on that very subject). FREE RESOURCES: RECORD RELEASE FORMS:As Dr. Vartkessian discusses, one simple thing a lawyer can do is keep a release of records in every new file. That way, your client can sign releases at the outset and you and your team can get started on record collection. Even if you don't recognize the need to find a particular record, you will be happy to have these signed releases when something comes up and you need to act fast. SEND ME AN EMAIL AT [email protected] with "sample forms" in the subject line and I will send you the ones I use! LINKS: Advancing Real Change, Inc. Website More information on the Capital Jury Project

The powers-that-be would like to pretend that Covid is over, the prisons are safe, and Compassionate Release is no longer necessary. This is simply not the case. Set for sentencing is a brand new podcast. Officially launches end of the month. But some topics are just too timely to wait for the official release. Therefore, enjoy this web extra with the incomparable Mark Allenbaugh, who returns to to talk about the current state of federal compassionate release cases. We dig in to the hard facts and cool graphs to tell the truth about deceiving data, specious arguments, and flat out false information most commonly deployed to defeat meritorious claims for compassionate release. Please subscribe to start receiving our weekly regular episodes starting on May 30, 2022!

The Set for Sentencing Podcast is close to launch and I can't wait for you to see/hear it. But, the recent Senate Confirmation Hearings for Justice Kentanji Brown Jackson were heavily focused on federal sentencing law. Therefore, I could not wait to dig in. I had a lively conversation about all of the misinformation and disinformation happening at the hearing concerning questions about the judge's sentencing record.