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Sentencing Mitigation Videos: Blurring the Cultural Divide Between Judges and Indigent Defendants

One day at work this summer, my supervisor, an Assistant Public Defender in Kanawha County, called me into her office. She had a new assignment for me. One of her clients had a sentencing disposition hearing in a few weeks. The client pled guilty to Fleeing while Driving under the Influence. The client was 56 but in very poor health. He had been an alcoholic for 40+ years but was ready to make a change in his life. My supervisor wanted me to represent the client at his sentencing disposition. She wanted me to stand up in front of a circuit court judge and explain why our client should serve his mandatory 3-10 years on home confinement instead of prison. My heart sank into my stomach. My supervisor continued telling me about my assignment. Not only did she want me to argue on behalf of our client, my supervisor wanted me to make a sentencing mitigation video.

My supervisor recently returned from a conference with a program for public defenders called Gideon’s Promise. Gideon’s Promise is an organization that partners with public defender offices around the country to create a community of passionate, talented advocates. The organization provides a supportive community for public defenders and offers multiple training programs throughout the year.

Gideon's Promise

At her most recent training, my supervisor attended a lecture about sentencing mitigation videos. Sentencing mitigation videos are mini documentaries featuring the defendant. You may see the videos as inadmissible hearsay, but judges routinely consider hearsay statements at sentencing. Defendants are allowed to speak or present any information that would mitigate the sentence. Families are allowed to send the judge personal letters to depict the defendant’s character. Sentencing mitigation videos bring those written statements to life. However, defense attorneys should be careful about making a video for every client. They should be used sparingly. We believed our client was a strong candidate for an effective video because of his poor health. A video of our client struggling to walk and shaking uncontrollably would be more persuasive than describing his physical health conditions to the judge.

Sentencing mitigation videos have never been used before in Kanawha County. In creating our client’s video, my supervisor and I traveled from Charleston to Wayne County, where our client lived. We went to the Wayne County Day Report Center to interview the client’s home confinement officer. Our client had been on home confinement because of his poor health; the jail didn’t have the resources to take care of him. The officer said our client had a perfect record on home confinement—he paid all his fees and never had any violations. Next, we visited our client at his home. We did an interview and got some shots of him around his house. We wanted the judge to see him in his own environment. Sentencing videos help blur the cultural line between the judge and the defendant.

Though my first time editing skills were weak, the judge watched the video and decided to let our client serve his sentence on home confinement.

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