After being found guilty of crimes including Seditious Conspiracy, Elmer Stewart Rhodes, leader of the "OathKeepers" was given the longest sentencing to date for any 1/6 defendant.   Here, we monday-morning quarterback every aspect of Rhodes' sentencing.  There is much to learn from this one, about guideline issues, written advocacy, allocution, and post-sentencing conditions of confinement.  Helping us get Set for Sentencing, my great friend and colleague, Mark Allenbaugh.    IN THIS EPISODE:   Checking in on our guideline predictions from from an earlier episode (on YouTube only) entitled “Sedition Edition” (link below); The somewhat circuitous, but still devastating application of the terrorism enhancement; A statistical reality check for those who feel Elmer got a big break at sentencing; Life expectancy analysis of Rhodes and how his lawyers missed properly arguing it; Analyzing arguments under the “3Rs” of sentencing narrative (Revelation, Relativity, Redemption); Analysis of the stellar written pleadings of the government and the abysmal defense memo; Predicting how much time will Mr. Rhodes will actuall serve; Where he might serve his time and what will his conditions of confinement potentially look like.   LINKS:   SEDITION EDITION - in this early episode, Mark and I did full-on guideline predictions of this case.  Were they all spot on?  Check out this YouTube bonus episode: https://www.youtube.com/watch?v=u7-HXqCcH4A&t=566s Ep. 35:  TRUMP THE TERRORIST?  Rhodes got a "terrorism enhancment" under the federal sentencing guidelines.  We did a deep dive into this in an earlier ep as well, looking at what might happen if Trump ever gets indicted for crimes related to 1/6.  https://youtu.be/vYwlBdzH-ts Ep. 53:  The ZIPPO is on Fire! In today's episode, we discuss how Rhodes wasn’t eligible for the zero point offender reduction (i.e. the ZiPpO) because he was a “leader/organizer” under the guidelines.  If you wanted more info about the ZIPPO, here's that link:  https://youtu.be/NxdEycbtdo8 Walt Pavlo & Maureen Baird: We got some great input from our friends Walt and Maureen.  Walt founded Prisonology, a top line prison consultancy.  Unlike some other so-called prison consultants, Prisonology's expertise goes well beyond the fact that Walt spent some time in federal prison.  He has amassased a team of true experts, most of whom were former high-level  BOP officials.   www.prisonology.com   FREE RESOURCES:   I do (another) deep dive into the "3Rs of Sentencing Narrative."  If this is somehow new to you, and you haven't downloaded my article on this, head on over to the shownotes page at: https://dougpassonlaw.com/podcast/elmer/    

Yes, we came up with a pithy name we are sure will catch on for the new and VERY consequential US sentencing guideline amendment which allows a 2-level reduction for those with zero criminal history points and who aren't excluded based on several listed criterion.   This amendment is a BIG DEAL, and will be retroactive, potentially impacting thousands of inmates in the BOP, and countless clients currently facting sentencing in federal court.  But, some of the language is ambiguious and you must arm yourself with the right legal ammunition and also remember to preserve the issue for appeal.  To that end, bear with as, as we go waaay into the legal weeds by engaging in a mind-numbing conversation about whether “and” really means “and” as it appears in criterion 10 (leader/organizer exclusion) of the new  “ZIPPO” guideline exclusion provisions.  Necessary as this is, it's exactly the kind of mental masturbation that gives me flashbacks to LSATs and law school final exams and makes me wanna throw up in my mouth.  So, to compensate, I barfed up a dumb song about the whole thing.  If you make it past the end credits, you'll hear my debut musical performance on this podcast.  As Maximus Decimus Meridius famously says, "ARE YOU NOT ENTERTAINED???!!!". Yes, this might be the moment where you say Set For Sentencing officially jumped the shark.  I can live with that.   IN THIS EPISODE:   Overview of the “ZIPPO”, or ZERO POINT OFFENDER guideline amendment; Retroactivity means over 7000 people in BOP will likely be given sentencing reductions; The sticky wicket that is Criterion 10 – does “and” mean “and” or does “and” mean “or”? How you can take advantage of this amendment before it inevitably passes on 11/1/23; The Pulsifer case pending at the supreme court may resolve the criterion 10 dilemma (whether and means or); Do not forget to preserve these issues at sentencing; Even if your court finds “and” means “or” – you can still argue for a variance; DO NOT WAIT until 11/1 to ask for these 2 levels off or, consider asking for a continuance until the amendment goes into effect; Doug's dumb ZIPPO song.   OTHER LINKS: We did a general podcast on all of the major new guideline amendments.  We zeroed in on the ZIPPO here b/c it's so important, but if you want a broader view, check out this ep: https://dougpassonlaw.com/podcast/big-guideline-changes-on-the-horizon-with-mark-allenbaugh/  

Yes, NY Congressman George Santos is innocent until proven guilty.  That said, he has already been tried and convicted in the media for a plethora of demonstrably provable falsehoods, which will not bode well for him should he choose to exercise his right to trial on fraud charges.  Will he make the right choice, fall on his sword, resign from Congress, and demonstrate extraordinary remorse and acceptance of responsiblity?  Well, I shook my magic 8-ball and it said, "hell no".  So, now it's time to look at the possible sentence he faces if convicted.  Spoiler alert - it ain't pretty.   IN THIS EPISODE:     Possible sentencing ranges under statutes and guidelines for Mr. Santos;  Unfairness of guidelines in terms of burden of proof and relevant conduct; New guideline 2-level reduction for zero criminal history points; Criminal history issues;  Real world sentencing stats (JSIN and sentencing stats).   LINKS:   These are the former podcast episodes you might want to check out to get the full flavor of this one: Acquitted Conduct Episode:  https://dougpassonlaw.com/podcast/acquitted-conduct/   Elizabeth Holmes episode:  https://dougpassonlaw.com/podcast/elizabeth-holmes-sentencing-post-mortem/   New guidelines podcast (discussing -2 levels for zero criminal history): https://dougpassonlaw.com/podcast/big-guideline-changes-on-the-horizon-with-mark-allenbaugh/   JSIN - Judicial Sentencing Information: https://dougpassonlaw.com/podcast/jsin-will-judicial-sentencing-information-mutilate-the-stats-or-slash-sentences/  And, we talked some about NARRATIVE - a series of events that occur in search of solution to a problem.  If you're interested to learn more, here's a short, cheap book on amazon I co-authored with communication expert, Dr. Randy Olson: https://a.co/d/bHsD1PZ      

The US Sentencing Commission created "JSIN" (sounds like "Jason") as a resource for Judges who want to understand how defendants are really being sentenced under the guidelines.   And, currently thirty-one federal jurisdictions are now incorporating JSIN data into the pre-sentence report. But, are the stats accurate?  Could these numbers help or harm our clients? Therefore, helping us get Set For Sentencing... duh... who else could it be besides Mark Allenbaugh, the quintessential sentencing statistics guru?!   IN THIS EPISODE:    JSIN’s attempt to fulfill the neglected mission of the Sentencing Commission – data collection; Flaws, kinks and glitches in the database; Practical tips for doing your own JSIN database searches (check that box!); Why the data excludes 5K, substantial assistance/cooperation departures; Why CJA lawyers should now ask for expert funds to combat JSIN numbers in Pre-Sentence Reports; How JSIN data will help not just for sentencing, but for appeal, compassionate release motion, and plea negotiations. LINKS: For a list of the 31 jurisdictions that now include JSIN data in presentence reports; visit the  shownotes, at:   www.setforsentencing.com/jsin

What can you do when your client with two prior felony drug convictions gets arrested and charged for a new and very serious drug trafficking offense?  Most lawyers, looking at this history, the substantial weight of drugs involved, a pile of money, and a gun, would resign themselves to epic defeat.  This man was facing a sentence that could easily have landed this client in prison for the rest of his life.    But, attorney Joel Meyers was going to do everything in his power to achieve a different result.  He knew that his client had a story to tell.  More importantly, he knew that if he did his homework, developed that story with credible witnesses, experts, and evidence, there was hope.    I was fortunate to play a role in this result, as Joel, an "old friend" from our law school days, reached out to me to do a sentencing mitigation video in the case. He knew that the story was everything, and in this case, there was likely no better way to persuade the judge of the truth of our mitigation narrative.  The end result was nothing short of astounding.   IN THIS EPISODE: Cooperation as a way to demonstrate extreme remorse; Why former prosecutors don’t always make great defense lawyers; Why psychological evaluations can be critical to help put the crime in proper context; The decision process for making a sentencing mitigation video; How the video inspired the attorney making it, the client who saw it, and the judge who insisted on having the whole courtroom watch it; The astoundingly good outcome achieved in the case, which included not only a low term of custody, but release at sentencing so that he could self-surrender to serve the rest of his sentence; The power of past, present and future redemption stories; The importance of building the right team of experts at sentencing.   Hopefully you never need the services of Joel Meyers.  But if you do: https://www.linkedin.com/in/joel-meyers-973b254/   We talked about Prison Consultants, including Maureen Baird (former BOP warden) and Walt Pavlo, President of Prisonology.  Here are two recent podcast episdoes featuring both of them: https://dougpassonlaw.com/podcast/prison-consultants-and-the-myth-of-the-fixer-how-to-separate-substance-from-snake-oil/ https://dougpassonlaw.com/podcast/telling-the-story-of-prison-at-sentencing/   Also, at the beginning of this episode, I lament my lost radio career.  Here's the man who crushed my dreams... but I'm not bitter! https://youarecurrent.com/2019/09/09/carmel-clay-historical-society-exhibit-features-whje/   FREE RESOURCES: NACDL ARTICLE ON SENTENCING MITIGATION VIDEOS - visit shownotes at www.setforsentencing.com/JoelMeyers NACDL ARTICLE on THE "3Rs" of SENTENCING NARRATIVE.  - visit shownotes at www.setforsentencing/JoelMeyers  

If you’ve been paying attention, you’ve heard me talk, ad nauseum, about the use of sentencing statistics in Federal cases.   But did you know that sentencing statistics are also relevant in your STATE CASES?    But, state sentencing data is often harder to access, and may require a tenacious investigator to fight arduous public records request battles.   Therefore, helping us get Set for Sentencing, an extraordinary investigator, Rich Robertson of R3 Investigations, tells us how he conducts "sentencing studies" in state cases and uses them to great effect on the big day.    He speaks of the first case he saw a sentencing study deployed by a judge to justify a probationary sentence (Bishop Thomas O'Brien's infamous hit and run), and two recent Arizona voter fraud/ballot harvesting cases.  If you are a state-level criminal defense investigator, this is YOUR golden opportunity to carve out a niche in your jurisdiction, doing “sentencing studies”.    IN THIS EPISODE:     How the Bishop was saved by a sentencing study; Unwarranted obstruction by the powers that be when it comes to legal obligations to make public information available to the defense;  Using data to predict outcomes and manage client expectations about the ultimate result; Narrative-based sentencing outcome analyses; Challenging death penalty aggravators in the well-known Hidalgo capital case; Rich’s sentencing studies on two recent Arizona voter fraud cases; Using sentencing data to give judges the cover they need to do justice (i.e. give a low or no sentence).   LINKS & RESOURCES: This is where you'll find Rich if you need him:  R3 Investigations That said, Rich has been all over, having worked on some incredibly high profile cases in AZ and around the country.  He's been on Dateline, 48 Hours, and many major news programs.  Google him!  But here's a taste: (2) Private investigator in Lori Vallow case details ‘bizarre’ circumstances | CUOMO - YouTube You've heard me talk about the "3Rs" of sentencing storytelling.  This whole episode is really about the 2nd "R", RELATIVITY stories.  It can be an effective part of sentencing to compare the case at hand, with other similar cases for the judge to have a broader perspective on what other (hopefully lower) sentences judges have imposed.  If you haven't gotten a free copy of my 3Rs Article from NACDL's "The Champion", go to the shownotes on my website, and download a copy --- www.setforsentencing.com/sentencingstudy   JUAN MARTINEZ - A DISBARRED, DISGRACED, FORMER PROSECUTOR:   In this episode, we invoked this infamous ex-prosecutor’s name a couple of times, but it occurs to me the average listener may not get the reference.  If you’re curious, google him.  He was a deeply unethical and offensive death penalty prosecutor, perhaps best known for prosecuting the Jodi Arias case.  He was disbarred when 20+ years of shenanigans finally caught up with him, including multiple allegations of sexual harrasment.  It's important we tell his story, because he represents everything wrong with the criminal justice system, and judges and supervisors enabled his conduct for years.  Unfortunately, this happens more than you might think.  Our system is only as good as the people who toil in it, and this guy was garbage of the highest order.  Good riddance.  https://www.abc15.com/news/region-phoenix-metro/central-phoenix/juan-martinez-disbarred-no-longer-able-to-practice-law-in-arizona https://www.phoenixnewtimes.com/news/arias-prosecutor-juan-martinez-reassigned-after-misconduct-complaint-11363444

Criminal immigration matters make up some 70 percent of all federal cases charged.  But the statutes our government uses to prosecute and sentence undocumented human beings to serious prison time, was motivated by racism and discriminatory intent.  Therefore, a team of fearless lawyers mounted a massive undertaking to challenge these statutes in federal court -- and WON.   On August 16, 2022 Judge Du of the United States District Court for the District of Nevada issued a first-of-its-kind ruling, finding that Section 1326 of the Immigration and Nationality Act (INA) is unconstitutional because of its racist origin. Therefore, helping us get Set for Sentencing today, one of the aforementioned fearless advocates for justice, attorney Kara Hartzler.  Ms. Hartzler walks us through the fascinating and dark history of these laws, the arguments that took them to task, and what the future holds. IN THIS EPISODE: The racist history behind U.S. Immigration policy; How eugenics and the US policy of “final selection” became a precurser for much of the rationale and policy in place for Hitler’s “final solution”; The Undesirable Aliens Act of 1929 and The Hart-Seller Act of 1965; The litigation challenging the statute as violating equal protection; The “Arlington Heights” test for discriminatory intent; How storytelling won the day in the Nevada constitutional challenge;  Parallels between immigration laws and the Major Crimes Act, giving the federal government jurisdiction over certain crimes on Indian Reservations (i.e. supposedly sovereign nations); The legal effect of the Nevada challenge and what happens next; How to use these arguments at sentencing RIGHT NOW; The importance of working with people outside of the legal community to broaden the perspective of the lawyer and the arguments she can make.   LINKS: We talked about an incredible organization, the Florence Project, which helps immigrants in ways big and small.  We would love for you to check it out, and maybe even hit the donate button on the home page:  Home - The Florence Project (firrp.org)   If you'd like to listen to Oral arguments at the Ninth Circuit, argued by renowned Constitutional Law Prof., Irwin Chemrinsky, click here:  https://www.ca9.uscourts.gov/media/video/?20221208/21-10233/   As we discussed, regardless of the final outcome, fearless lawyers will continue to point out the racist origin of this statute at sentencing.  If you would like to download a fantastic sample sentencing memorandum raising these issues, please visit the shownotes at www.setforsentencing.com/racist1326      

On April 5, 2023, the United States Sentencing Commission voted to make several substantive changes to the federal sentencing guidelines.  If approved (or not acted upon) by Congress, some of the most significant amendments in recent memory will go into effect on Nov. 1, 2023.   These changes will effect anyone currently pending sentencing in federal court, and anyone currently serving a sentence in the federal Bureau of Prisons.   In this episode, we are joined by my genious pal, Mark Allenbaugh, to give you the scoop on the two biggest amendments, and talk about a couple of others, including the one that didn't pass:  the big white whale that is acquitted conduct (see Ep. 36, with Mark Allenbaugh and Prof. Doug Berman). IN THIS EPISODE:  USSG amendment to allow for 2 level reduction for having no criminal history and reducing impact of “status” points for criminal history (point assessment for being on probation, parole or supervised release) when committing a new offense; Amendment expanding the criteria/eligibility for Compassionate Release; Commission punting on acquitted conduct and predictions about what the Supreme Court might do with this issue; What you can do RIGHT now to make use of these changes, even though they do not go into effect until Nov. 1, 2023; What you can do to ensure the contested compassionate release provisions do not get vetoed by Congress. LINKS AND OTHER INFO:  Ep. 36:  Acquitted conduct episode:  PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences. - Doug Passon Law The Sentencing Commission's detailed report on all amendments:  https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20230405_prelim-RF.pdf 18 USC § 3661 (Referred to by Allenbaugh during this episode): No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. Proof that the BOP is inept at handling Covid: https://oig.justice.gov/reports/capstone-review-federal-bureau-prisons-response-coronavirus-disease-2019-pandemic WRITING YOUR CONGRESS-PEOPLE IN SUPPORT OF COMPASSIONATE RELEASE AMENDMENTS: We mentioned that the CR amendments was the only one passed without unanimous consent. It was split on party lines (4 Dems in favor, 3 Repubs opposed).  Therefore, it would be useful for you to reach out to your Senate/House members to voice your support for the changes. You could also reach out to some criminal justice-friendly congresspeople as well (see below for a few suggestions).  Here is some suggested language for your email or calls: Dear ___ I am writing to voice my support for the United States Sentencing Commission's recent amendments to the Compassionate Release Guidlines.  I believe in second chances for those who deserve it.  I believe that prison has diminishing returns.  I believe that every human is capable of redemption.  I believe that changes in the law and other new factors warrant a second look at sentencings that are often too long.  I know this amendment may be objectionable to some, but it's hard to understand why.  The First Step Act was legislation passed during the Trump Adminstration with overwhelming BI-PARTISAN support.  The Compassionate Release amendments, merely implement the policies expressed in the First Step Act. I hope you continue to lend your bi-partisan support to this much needed criminal justice reform. Sincerely (Jane Q. Voter in your District)   Here are some CJ-friendly congress-folk: COREY BOOKER: https://www.booker.senate.gov/contact/write-to-cory JAN SHAKOWSKY: https://schakowsky.house.gov/zip_authentication?form=/contact/email-me JOEL OSSOF:  https://www.ossoff.senate.gov/contact-us/message/ DICK DURBIN: https://www.ossoff.senate.gov/contact-us/message/ CORI BUSH:  https://bush.house.gov/contact/email-me -------------- Last, but not least, WTF is "OLD EBBIT"??????? I have a confession to make.  I had no fuckin’ idea what Allenbaugh was talking about when he twice mentioned the “Old Ebbit”.  I was too ashamed to expose my ignorance, and so I had to do some googlin'.   Old Ebbitt Grill | Washington, DC Restaurant & Bar  

This week, we continue our crucial conversation on Autism with Mark Mahoney, America's leading Autism defense attorney (harringtonmahoney.com). There is so much we don’t know when it comes to ASD, and because it's so prevalent, lawyers must be on the lookout for this issue in every case.  It matters.  It matters to culpability, it matters to recidivism, it matters to conditions of confinement.   This episode is for every lawyer, every judge, every prosecutor, and every PARENT with a child on the spectrum.  Please listen and pass it on. IN THIS EPISODE: The Myth of “High Functioning”; The importance of doing “adaptive testing”; Camouflaging and masking as hiding the true deficits of a client; Vetting a defense attorney to test true autism experience – red flags that your attorney isn’t qualified to handle an autism case; The danger of Flat Fees in Autism cases; The importance of telling the story of prison; With early intervention, the results can be astoundingly good; Why the “late diagnosis” of ASD shouldn’t hinder your defense; The importance of the “parent narrative”; The need to incorporate VIDEO into ASD advocacy and some practical advice about the moments that need to be captured; The low recidivism rates among the ASD population. LINKS: www.harringtonmahoney.com MARK MAHONEY AUTISM MASTERCLASS WITH NACDL: https://members.nacdl.org/online-store/merchandise-details/?&dialog=yes&action=edit&id=13da2079-ab15-e811-90ce-000d3a00af06&isAdminSite=0&browserId=1ad284be-36cf-41a8-81e4-4375b4a3d09f We began this conversation with Attorney Jamie Sparks and Psychologist/Professor Dr. Toni Sparks, on Episode 5:  "Understanding Autism at Sentencing".  Understanding Autism at Sentencing - Doug Passon Law

We began this conversation in Ep.5,  “Understanding Autism at Sentencing”.  But the topic is so important, and so close to my heart and the work that I do, it’s time to dig in deeper. In the first of a two-part episode, we talk with the nation’s premiere criminal defense attorney when it comes to representing those on the autism spectrum who find themselves charged with crimes, particularly online offenses – Mark Mahoney. There is so much we don’t know when it comes to ASD, and lawyers need to look out for this issue in every case.  It matters.  It matters to culpability, it matters to recidivism, and it isn’t easy to understand. This episode is for every lawyer, every judge, every prosecutor, and every PARENT with a child on the spectrum.  Please listen and pass it on.   IN THIS EPISODE:  Defining Autism Spectrum Disorder in the criminal context; Mind-Blindness/Theory of Mind; Empathy; Moral Reasoning; Dr. Ami Klin and his animation experiment (see link below); ASD and Internet Vulnerability; Rule following and Recidivism. LINKS: Mark Mahoney:  Mark J. Mahoney | Harrington & Mahoney (harringtonmahoney.com) Episode 5, "Understanding Autism at Sentencing" (With Jamie Sparks and Toni Sparks) Understanding Autism at Sentencing - Doug Passon Law   YOUTUBE VIDEO - Heider Simmel (shapes video):  https://youtu.be/VTNmLt7QX8E        

March 19, 2023 is the 3-year anniversary of the first recorded Covid infection in the Federal Bureau of Prisons.  But the true story has not been told of the BOP’s failure to protect inmates and prevent the spread of the virus with all of its deadly, disastrous, and long-term consequences.  Therefore, it is imperative that we continue to tell the story of BOP’s incompetence, indifference, and obfuscation.  We must step up our efforts to litigate (the ever-expanding) compassionate release elements, and credibly tell the story of the broken BOP at sentencing every chance we get.  Warning:  This is a looong conversation.  That’s what happens when you get two lawyers in a room together, and throw some tequila into the mix.  But it’s jam packed with useful, actionable information.  So hang in there until the end!  Maybe listen to it on double speed 😊. IN THIS EPISODE: Data collection and reporting failures of the BOP that continue to undermine confidence and obfuscate the truth of what’s going on behind the walls; Reluctance of inmates to self-report Covid Symptoms; The unduly harsh punishment inmates face during Covid Home confinement during the pandemic; The coming wave of overcrowding that will fuel the BOP as covid nuclear reactors; Covid deaths over three years compared to overall deaths in BOP over eighteen years;  BOP clearly fudging numbers of Covid tests currently administered; How the BOP is likely falling short on vaccines; How most of the BOP is back to business as usual, operating as if the pandemic is over; Why legislation designed to reduce the inmate population did not achieve its goal; Practical advice for how to weaponize all of this information at sentencing; How the sentencing commission is trying to broaden eligibility for compassionate release; Compassionate release and long Covid; A call to Judges to NULLIFY sentences until the BOP can prove it’s capable of caring for our clients; Getting back to pre 1986 where the DEFAULT sanction in federal court was PROBATION. OTHER LINKS: OIG REPORT - Shortly after we recorded this, the Office of the Inspector General released it's own evaluation of the BOP's performance.  Suffice it to say, it was not a glowing review. https://oig.justice.gov/reports/capstone-review-federal-bureau-prisons-response-coronavirus-disease-2019-pandemic The big issues the OIG identified were: • Serious failures in the BOP’s use of single-celling of inmates during COVID-19 modified operations; the BOP reported to the OIG that seven inmates died by suicide from March 2020 through April 2021 while housed in single-cell confinement in quarantine units related to COVID-19. • The BOP should explore permanent facility modifications to help it more easily implement future infection control measures. • The BOP Should Assess How It Can More Effectively Utilize Its Home Confinement Authorities. While the BOP transferred a substantial number of inmates from prisons to home confinement during the first few months of the pandemic, the BOP actually transferred fewer inmates during the first year of the pandemic than it had during the year immediately preceding the pandemic. • The pandemic exacerbated the effects of preexisting BOP staffing shortages and strained staff morale, and we concluded that the BOP should improve how it communicates available staff support resources. • We identified a significant deficiency in the BOP’s communication with inmates’ families regarding COVID-19 related serious illnesses. • The BOP did not always provide clear guidance on staff and inmate use of healthcare protective equipment and compliance with healthcare safety guidance.   CDC WARNING OF MENTAL HEALTH ISSUES AND COVID:  Underlying Medical Conditions Associated with Higher Risk for Severe COVID-19: Information for Healthcare Professionals | CDC   RELATED PODCAST EPISODES: I mentioned an earlier episode with Prison Consultant Maureen Baird, called, "Telling the Story of Prison at Sentencing."  Here's the link: Telling the Story of Prison at Sentencing - Doug Passon Law   Mark and I earlier did a deep dive into the "acquitted conduct" section of the guidelines and the seismic shift it could have on sentencing.  Here's the link to that:  PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences. - Doug Passon Law        

Have you ever wondered if Rikers Island is really as bad as it is portrayed on TV?  Did you know NYC held newly sentenced prisoners in something called “the tombs”?  How does New York State sentencing compare to federal?  You’re about to have all of those questions answered and more, with Craig Rothfeld, a New York State prison consultant. IN THIS EPISODE:   From “the Tombs” to Rikers Island; Is there “self-surrender” in New York State; Are there minimum security “camps” in New York; The ins and outs of the NY State prison complex; The NYS sentencing scheme; The prevalence of “negotiated pleas” in NYS; Work release & work furlough in NYS.  LINKS:   www.insideoutsideltd.com Harvey Weinstein Adds ‘Prison Consultant’ to His Entourage - The New York Times (nytimes.com)  

Many with serious mental illness and intellectual and developmental disabilities find themselves caught in the web of the criminal justice system.  But these issues are complex.  We need help recognizing the issue, finding the right expert to make sense of it, and properly integrating it into a client's mitigation narrative.  Therefore, behold attorney Elizabeth Kelley, who has spent a career cultivating the knowledge necessary to be of service to lawyers and clients.  IN THIS EPISODE:  Practical tips for recognizing when a client may be struggling with mental health issues; The importance of developing a network of trusted experts; Being open to layers of diagnosis AND multiple experts/evaluations – i.e. it’s often not just “one thing” interfering with your client’s ability to function in the world; The importance of balancing mental health mitigation with “hope” – now that we have identified the problem, here’s what we can do about to make sure we are never in this kind of trouble again; Practical advice for relating to and communicating with clients with serious mental health issues; Making the diagnosis matter at sentencing; The importance of team defense; How Sentencing Videos can be especially powerful to show the court the truth of your client’s mental health challenges. LINKS:  ELIZABETH KELLEY - HOME (elizabethkelleylaw.com) ELIZABETH KELLEY PUBLICATIONS:  BOOKS - ELIZABETH KELLEY (elizabethkelleylaw.com) Understanding Autism at Sentencing - Doug Passon Law PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences. - Doug Passon Law  

Welcome back to the thrilling conclusion of my 2-part episode with Dr. Paul Zak!   Dr. Zak’s new book, Immersion, the Science of the Extraordinary and the Source of happiness is a powerful reminder that if we lawyers want extraordinary results at sentencing, we must create extraordinary, immersive experiences at sentencing.  It’s what I strive to do in every case, and Dr. Zak’s years of research have been an integral part of my success.  I’m humbled and grateful that he came on S4S and was so generous with his time.  If you haven't heard episode 1, you really should check that out first.  IN THIS EPISODE: Dr. Zak’s five step "SIRTA" process to achieve immersive storytelling; How to turn a judge into a superfan with story; Why every judge and prosecutor should spend a day in prison and witness an execution;  Why every lawyer needs to understand that we are now living in an “experience economy”; Running 3 minutes of Doug's sentencing video through the immersion platform; Why music is integral to storytelling.   LINKS: Dr. Zak's Immersion Platform - https://www.getimmersion.com/ Immersion: The Science of the Extraordinary & the Source of Happiness, by Dr. Paul Zak on Amazon.com   https://a.co/d/2XTNSoy This short video, "The Future of Storytelling," was my introduction to Dr. Zak and his groundbreaking work.  It details one of his earlier studies of the effect of narrative on the brain.  It's six minutes and worth a look. It will have a profound impact on the way you approach law and life.    https://youtu.be/DHeqQAKHh3M IMMERSION RESULTS FOR SENTENCING VIDEO:  Dr. Zak ran a few minutes of one of my videos through the system.  We talked about the results during the last 1/2 of the podcast.  If you'd like to see for yourself, here is a link to the Immersion report:   https://sharing.getimmersion.com/analyze/0612a024-fb3f-44ee-a76f-1514cdd28406  

We all want to be more persuasive communicators, especially when the big day of sentencing is upon us.  But, many of us don't know whether our oral, written, or visual communications are grabbing and holding our audience, and most importantly, moving them to make the right decision in a case. Therefore, helping us get Set for Sentencing is Dr. Paul Zak!  He has spent over two decades researching the neuroscience behind narrative, communication, and human connection.  He's here to introduce you to the concept of IMMERSION. Immersion is a neurologic state that engages your audience and motivates them into action.  For our work, immersion is everything.  He knows how you achieve immersion in your communication and, more importantly, he designed a tool to measure it! Dr. Zak was so generous with his time, we couldn't pack all of this into one episode.  So, enjoy part one of our discussion, and I promise you'll want to come back for part 2.  At the end of this, we actually get to analyze a few minutes of one of my sentencing mitigation videos through Dr. Zak's immersion platform, which uses biometric responses smart watches to measure audience engagement with your message.  This is amazing technology that is already in use in the film industry, in advertising, by fortune 500 corporations, and beyond.    IN THIS EPISODE: The crucial difference between empathy v sympathy; How narrative “immersion” leads to audience action; Brain response to immersion; The importance of "opening hot"; How long immersion lasts and why the brain needs a break; The importance of strategic placement of a “call to action” in your narrative communication; Neurologic responses to written, spoken and visual communication; Why traditional “focus groups” are ineffective; Using multiple story lines to sustain immersion; Pauses – a speaker’s superpower. LINKS: Dr. Zak's Immersion Platform - https://www.getimmersion.com/ Immersion: The Science of the Extraordinary & the Source of Happiness, by Dr. Paul Zak on Amazon.com   https://a.co/d/2XTNSoy This short video, "The Future of Storytelling," was my introduction to Dr. Zak and his groundbreaking work.  It details one of his earlier studies of the effect of narrative on the brain.  It's six minutes and worth a look. It will have a profound impact on the way you approach law and life.    https://youtu.be/DHeqQAKHh3M Again, stay tuned for next week's thrilling conclusion, where we finish our discussion and do an immersion analysis of one of my sentencing mitigation videos.   

Sharon Hicks is the epitome of a fearless lawyer.  When she had a case with bad facts, a seemingly intractable judge, and a prosecutor seeking the maximum sentence, she made a case for probation.  Everyone, even her closest legal confidants told her she was dreaming.  But she knew this client had a story to tell, that was never told before.  With a thorough mitigation investigation and a powerful sentencing mitigation video, she did what everyone told her was impossible.  This is billed as "Volume 1", because, as you might imagine, I work with lawyers to get incredible results. I will be profiling more of them as we go, the work we do together, and the extraordinary outcomes we achieve. IN THIS EPISODE: The story behind the McGirt resentencing cases and federal Indian Country jurisdiction for major crimes; How to effectively integrate a sentencing video/defense documentary into your larger presentation; Never being afraid to shoot for the moon at sentencing; Never run from bad facts at sentencing- develop them and embrace them; Chat GPT is fucking terrifying, and it exposes the tepid ridiculousness of sentencing letters; Credible ways to mitigate culpibility by Illuminating the action/inaction of other parties or entities. Don’t be afraid to ask for more time to prepare for sentencing, and don’t be afraid to ask for as much as possible if you need it; Whether judges come to sentencing hearings with their mind made up and the importance of doing your homework when it comes to knowing your judge; The “3Rs” of sentencing storytelling; The power of sentencing mitigation videos. RESOURCES: Free Dowload, Doug's article in NACDL's "The Champion", the "3Rs of Sentencing Narrative".  Sharon and I spoke at length about the "3Rs" (Revelation, Relativity, Redemption) that can exist in any mitigation narrative.  This case had all three.  If you'd like to learn more, visit the shownotes page for this episode (www.setforsentencing.com/fearlesslawyer1) and scroll to the bottom of the page where you'll find the download button.

Jon May is a gentleman, a scholar, and a phenomenal criminal defense lawyer based in the Miami area.  His new book, Who Says You Can’t? How To Become a More Creative Criminal Defense Lawyer embodies his practice and his prolific writing on various aspects of criminal defense. It was an honor to hold court with him as he helps us get Set for Sentencing. IN THIS EPISODE: The concept of “trying your case at sentencing” Never shying away from putting your offense in the proper context;  Convincing prosecutors to drop the case because your client is either not guilty, or they will likely lose at trial; A deep dive into the pros and cons of pleading guilty “straight up” (i.e. without any agreement with the government);        Trying the case with the probation officer during the pre-sentence process;        The value (or lack thereof) of sentencing letters. LINKS:  Jon May Website: www.jonmayteamdefense.net Jon's Latest Book:  Who Says You Can't? Strategies and Tactics For Becoming a More Creative Criminal Defense Lawyer: https://members.nacdl.org/online-store/merchandise-details/?action=view&id=68fcfb2a-c07b-ed11-a76e-0003ff66b1f0 SAMPLE CASE WITH SENTENCING VIDEO:   Jon and I talked about never being afraid to put the offense in proper context at sentencing by pushing back on the worst aspects of the crime and telling a powerful true story around it.  I used the example of the alleged "doctor drug dealer narrative" in a fentanyl death case in federal court. In this case, the client was a medical doctor who sold fentanyl resulting in death.  The government referred to him as a “doctor drug dealer”, and that was a gross misrepresentation.  Yes, he was a doctor, and yes, he sold a dose of fentanyl, and yes, it took the life of the man who ingested the drug.  But there was a deeper story to tell, and because we were not afraid to tell it, the client received a substantially lower sentence.  In that case we prepared a sentencing video to tell the story in a deeper, truer way.  You can view that video at this link:  https://vimeo.com/743589899 DOUG'S BOOK ON LEGAL STORYTELLING:  I am grateful to Jon that he included a reference to my legal storytelling book.  During our conversation, I pulled from that work, referring to what we call “Shirley’s Law”, meaning if we don't tell our own stories, someone else will tell them for us, and we won't like it. The book I co-authored with story and communications expert Dr. Randy Olson, is called The Narrative Gym For Law: Introducing the ABT Framework for Persuasive Advocacy.  And again, of course, thank you to Jon May for referencing that book in his new book!  If you’re interested in The Narrative Gym, it’s cheap and short, and packed tight with easy to understand and implement narrative technique.  Here's a link to buy on Amazon:  https://a.co/d/axGvZkB FREE RESOURCE: Jon and I had a long conversation about the pros and cons of sentencing character letters.  For a free download of Doug’s guidelines for writing a compelling sentencing letter, visit the shownotes page for this episode: www.setforsentencing.com/jonmay      

We have an attorney general, who serves as the chief prosecutor for federal or state government. So, why, if we claim to have equal justice under the law do we not have a defense counterpart?  Author and attorney extraordinaire, Andrea Lyon, makes the case for exactly that in her new book, Fixing Legal Injustice In America: The Case For A Defender General of the United States. She has graciously agreed to help us get Set for Sentencing! I love this episode, because I love great stories.  And Andrea Lyon is full of them.  But those stories aren’t just for fun, they accentuate the need for a seat at the proverbial political table for the criminal defense bar.  Those with the power of the purse, and the power to pass draconian laws, the power to steal lives with overcharging and wrongful convictions, need someone to speak truth at that table.  IN THIS EPISODE: Andrea Lyon’s origin story and a TON of other great stories that illuminate the cause of the creation of Defender General; What is Defender General of the United States and what that would the position entail;; What YOU can do to help turn this dream into reality. LINKS: Fixing Legal Injustice The Case for a Defender General of the United States on Amazon.com https://a.co/d/ebAI94b Andrea Lyon's Website:  https://andrealyon.com/ Andrea mentions the confirmation hearings of Justice Ketanji Brown Jackson as an example of the level of disdain in which politicians hold the defense bar.  It made me think of the VERY FIRST episode of Set For Sentencing, where Mark Allenbaugh and I do the post-mortem of those proceedings:  https://dougpassonlaw.com/podcast/senators-sell-sentencing-snake-oil-at-kbj-confirmation-hearing/ ACTION ITEMS: There are those in Congress who might very well support the idea of defender general.  Here are a few, hyperlinked to their emails, so please click, and send them an email!  Here’s some proposed text! Dear ___ I am writing to talk to you about the importance of creating a defense counterpart to the Attorney General, called the “Defender General”.  This is an idea championed by Andrea Lyon in her new book, Fixing Legal Injustice The Case for a Defender General of the United States.  Ms. Lyon talks about this more on a recent podcast I heard (set for sentencing) and I truly believe it’s an idea whose time has come.  If we claim to be a system built on the idea of "equal justice under the law," then those who give voice to the voiceless, must have a seat at the table of policy and decisionmaking.  I would greatly appreciate if you would read Ms. Lyon’s book, and join her in championing this brilliant and desperately necessary idea that will move our beloved country closer to the ideal of equal justice: COREY BOOKER: https://www.booker.senate.gov/contact/write-to-cory JAN SHAKOWSKY: https://schakowsky.house.gov/zip_authentication?form=/contact/email-me JOEL OSSOF:  https://www.ossoff.senate.gov/contact-us/message/ DICK DURBIN: https://www.ossoff.senate.gov/contact-us/message/ CORI BUSH:  https://bush.house.gov/contact/email-me  

In a perfect world, the presumption of innocence is sacrosanct.  If you are found not guilty by a jury, common sense and the constitution dictate that acquitted conduct should not later be used to enhance your sentence on other charges.   But in federal court, it is not only possible, but commonplace to increase punishment based on acquited, uncharged and dismissed conduct.  The good news is, that might be changing soon. Helping us get set for sentencing, Prof. Doug Berman and Mark Allenbaugh to talk about the proposed amendment to the United States Sentencing Guidelines on acquitted conduct.  Prof. Berman is not only a federal sentencing expert, but wrote the Amicus brief for U.S. v. Daytona McClinton, an “acquitted conduct” case currently pending Cert. at the Supreme Court.  Of course, we all know Mark Allenbaugh (www.sentencingstats.com) who completes what turns out to be an “all Allenbaugh January”. Warning: this episode is not for the faint of heart.  No, there’s no sex, drugs, or rock n’ roll.  There are probably not even that many f-bombs dropped by Doug.  It’s just a really, really, really deep dive into the inner machinations of our broken federal sentencing process.  So strap in, and let’s get Set for Sentencing! In this episode: The pervasiveness of acquitted conduct enhancements; Acquitted conduct’s role in coercive plea bargaining; The five cases waiting to be heard by the Supreme Court; Why using acquitted conduct to enhance punishment flies in the face of the presumption of innocence; The Watts case and the shaky origin story of acquitted conduct; A debate over how many cases this really affects; Burdens of proof at sentencing; Looking at the Derek Chauvin sentencing to see how proof beyond a reasonable doubt for sentencing enhancements can and should work; The possible broader implications for dismissed and uncharged conduct enhancements to fall along with acquitted conduct; What you can do to help get these amendments ratified. LINKS: Full list of Proposed Sentencing Guidelines amendments: https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20230112_prelim_RF.pdf?utm_medium=email&utm_source=govdelivery WHAT YOU CAN DO:  Believe it or not, your input matters.  You can (and should) go to the sentencing commission home page at: www.ussc.gov .  There, you’ll find a new portal that allows you to easily submit comments on all proposed guideline amendments.  The commission is listening, and they absolutely want to hear from you. RELATED EPISODES: https://dougpassonlaw.com/podcast/the-devil-we-know-the-funny-math-of-the-guidelines-proposed-fixes-and-lessons-learned-from-capital-defense/ Berman’s Sentencing Law and Policy Blog: https://sentencing.typepad.com/sentencing_law_and_policy/ Mark Allenbaugh:  www.sentencingstats.com

Well, January is shaping up to be an all Allenbaugh affair.  Although we finished our marathon session on December’s metric ton of high-profile federal sentencings, there was one other bombshell that we couldn’t leave untouched:  Congress’s criminal referral to the Dept. of Justice of the former  president, Donald J. Trump, on a series of alleged federal crimes surrounding his involvement in the attempted overthrow of our government. Yes, the presumption of innocence attaches, but if you are curious as to the possible sentences Trump could face if incited and convicted, this episode is for you. Perhaps the most serious aspect of these allegations concerns the possible application of the “terrorism enhancement” in the United States Sentencing Guidelines.  We look at the enhancement and its application to another set of serious sentencings last month: the Michigan militia members convicted in the plot to kidnap Michigan’s governor, Gretchen Whitmer.  Both of these men received the terrorism enhancement and could have each received life sentences.  But would such a thing apply in Trump’s (hypothetical) case? IN THIS EPISODE: Explaining the specific federal charges referred for prosecution; Guideline analysis of each charge and terrorism enhancement; Looking at the current 1/6 prosecutions for guidance; Applying this in context of recent sentencing of Michigan militia/Whitmer kidnap case; A discussion of “the trial penalty”; Continuing to bang the drum of the life expectancy analysis; The fate of another Michigan defendant, Ty Garbin, who pled guilty early, cooperated fully, and presented a powerful redemption story to the judge at sentencing (spoiler alert, he was home for Christmas); How to handle “sentencing disparity” arguments after going to trial; Predictions about whether a 1/6 indictment really happens for Trump, including whether he would be “remanded” to custody upon arrest. LINKS: MARALAGO-ING TO PRISON? This isn't first rodeo when it comes to possible Trump Sentencings.  If you haven't watched or listened to "Maralagoing to Prison?", Ep. 12, Check it out: Youtube:  https://youtu.be/gUt2XnY4JPE Website: https://dougpassonlaw.com/podcast/mar-a-lago-ing-to-prison-worst-case-scenarios-if-djt-ends-up-in-the-bop/ MARK’S SPIFFY CHARTS:  As always, if you just doing the audio version of the podcast, you may want to visit the shownotes page to see his great charts: www.setforsentencing.com/trumptheterrorist TY GARBIN SENTENCING VIDEO:  We talked about Michigan Kidnap defendant, Ty Garbin and referred to the sentenicng mitigation video I produced for that case.  While the two defendants convicted at trial received 16 and 19 years, Ty's sentence is already finished. You can watch his sentencing video here: https://youtu.be/AOhOY3uuvRQ Lastly, we talked about an incredible organization, Parents For Peace, that can assist when you or a loved one falls down the rabit hole of radicalization:  https://www.parents4peace.org/  

It was a long wacky December in the world of federal sentencing. I can’t remember a month with more high profile proceedings, and Mark Allenbaugh (www.sentencingstats.com) and I covered all of it in a marathon, 4-hour session. Here is part 3, dissecting the sentencings of Julie and Todd Chrisley, the star of USA Network's reality shitshow, "Chrisley Knows Best." This husband and wife duo were convicted after trial of multiple fraud charges. After a lackluster performance from the defense, Todd received a 12-year sentence, his wife received 7.  So, what went wrong? IN THIS EPISODE: Gender disparity in federal sentencing; Yet another missed opportunity to argue life expectancy; Explaining the very basics of sentencing memos; Why the defense memos were among the worst we’ve seen; How and why the power of story lies in the details; Remembering Rodney King and Stacey Coon!? – if you are still talking about your case being outside of the “heartland”, you're 20 years behind schedule; The ongoing saga of the sentencing letter. LINKS: Last episode:  We started this conversation in EP. #31 (Sunny Balwani Sentencing Post Mortem) by doing comparative statistical analysis of Avenatti’s sentencing with Holmes, Bulwani and the Chrisleys.  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 at: www.setforsentencing.com/balwani 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/abs/10.2105/AJPH.2012.301148  We talk about the importance of telling a story with detail and making it relevant to punishment, using Mr. Chrisley’s “fibromyalgia” as the prime example.  The defense informed the judge of his diagnosis yet said nothing of symptoms and how it would affect him in prison.  Another huge opportunity missed.  If you’d like to know more about Telling the story of prison, check out EP.  3, with prison expert and former warden, Maureen Baird.  https://youtu.be/fCls6d1pzuA  

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)