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

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

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

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

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