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.