Understanding, let alone telling, your client's story can be a daunting task. Lawyers often lack the time and resources to peel back the layers of a client's life and properly put their offense in context. Thankfully, they now have a free, powerful, comprehensive and confidential tool to help get the job done – Defense Map.

Helping us get Set For Sentencing is Charlie Asher, the founder/creator of defensemap.com. The mission of Defense Map is to help balance the scales of a criminal justice system rife with wrongful convictions, uninformed and excessive sentencings, and mass incarceration.

Defense Map gives attorneys a powerful, free resource to understand their clients' full defenses and backstories, to engage meaningfully with them, to help clients better understand themselves, and to give their lawyers what they need to persuade decision-makers to do the right thing at sentencing and beyond.

IN THIS EPISODE:

• The free, powerful and confidential online sentencing mitigation tool called "Defense Map"
• Content and categories of Defense Map;
• Examples of how Defense Map is used in developing mitigation;
• Confidentiality of Defense Map;
• How going through the process can help not just the lawyer, but the client;
• How in-custody clients can access Defense Map;
• Defense Map is bi-lingual, offers a juvenile version and audio assistance for those that cannot read;
• Defense Map strengthens lawyer and client relationship;
• Static vs. Dynamic mitigation;
• The constitutional mandate for "balance of forces" in Warrius v. Oregon.

LINKS:

www.defensemap.com

Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) was mentioned a couple of times. Here's an OYEZ link to read the case and hear oral arguments.

Charlie made mention of a sentencing mitigation video I produced for the case involving the kidnaping of the Gov. of Michigan. That video is publically available at THIS YOUTUBE LINK. Sentencing mitigation videos have been around for almost twenty years. I know, because I pioneered this powerful advocacy tool. For more about that, visit www.dougpassonlaw.com

In a criminal case, the contents of your computer can be your saving grace or the nail in your coffin. This is particularly true in cases involving online offenses. But, taking the government's word for what they found during the search of your devices is a very bad idea!

Helping us get Set For Sentencing is computer forensics expert, Tami Loehrs. She brings more than 30 years of legal and computer experience, as well as hundreds of hours of computer forensics training to the table. Ms. Loehrs gives us the straight scoop on how to defend crimes involving computers, particularly at sentencing. Her message is simple -- when it comes to computer forensics, question everything!

WARNING: This episode is not for the faint of heart. Computer forensics issues most often arise in the context of offenses involving child sexual exploitation, either through the downloading and sharing of offensive images, or improper contact with minors online. These are horrible crimes, and we talk in detail about the facts of specific cases.

IN THIS EPISODE:

• The importance of using forensics to put the underlying offense in context at sentencing;
• Just because something is deleted doesn't mean it's deleted;
• How law enforcement routinely attempts to thwart comprehensive forensics evaluations by the defense;
• Just because it's on your computer doesn't mean you're guilty;
• The need to examine devices the government ignored;
• Controlling the "re-victimization" narrative in CP sentencings;
• Do the feds have the digital tools to eradicate CP? If so, why don't they?

LINKS:

Visit, loehrsforensics.com for more information. For articles and other information written by Ms. Loehrs, visit the MEDIA PAGE on her website.

Here's an earlier episdode we did after the Supreme Court confirmation hearing of Justice Ketanji Brown Jackson, where the CP guidelines were front and center. It will give deeper context to the conversation with Ms. Loehrs: Senators Sell Sentencing Snake Oil @ KBJ Confirmation Hearing.

Another related episode is #5, Understanding Autism at Sentencing. Many of the cases involving clients on the Autism Spectrum are online offenses and therefore likely require forensics.

Lastly, if you would like to see the redacted exceprts from the sentencing video played during the podcast, please visit our YOUTUBE Channel for the video version of the podcast. While you are there, please hit the SUBSCRIBE button!

Helping us get Set for Sentencing this week, Patrick Barone, a phenomenal Michigan criminal defense lawyer and certified practitioner of psychodrama, a powerful and popular tool used in psychotherapy.

Done right, lawyers can deploy psychodrama techniques in and out of court. It gives us a new path to discover credible and heartfelt ways to reframe our sentencing narratives. Perhaps most important, psychodrama deepens the participant's capacity for empathy, which is in short supply in our system.

Patrick Barone has fully embraced psychodrama in his practice and his life. After learning about the technique at the famed Jerry Spence Trial Lawyers College, he completed a 1000 hour certification. and went on to receive the highest level of certification as a "T.E.P." (Trainer, Educator and Practitioner) of Psychodrama, Sociometry and Group Psychotherapy.

Along with clinical psychologist Dr. Elizabeth Corby, he then founded the Michigan Psychodrama Center which provides workshops, education and trainings.

IN THIS EPISODE:

• Defining psychodrama and its use in criminal case preparation;
• How psychodrama helps develop a deeper understanding of our clients or other players in the process;
• Psychodrama as an empathy generator;
• A deep (psychodrama) dive into Doug's traumatic criminal past (spoiler alert, it was a curfew violation);
• Using psychodrama to overcome confirmation bias;
• Using psychodrama to control the sentencing narrative;
• Psychodrama in capital cases;
• Using psychodrama to help your client more genuinely express remorse and acceptance of responsibility at sentencing.

LINKS:

Patrick Barone (www.baronedefensefirm.com)

Michigan Psychodrama Center

Helping us get Set for Sentencing this week, extraordinary defense attorney and fantastically empathetic human, Ashley Adams. Ms. Adams brings a unique perspective, having spent several years as an Assistant United States Attorney, prosecuting predominantly white-collar offenses.

This episode is jam packed with incredible information, great stories, new ideas, and tons of heart. It also ends up being a great prelude to two upcoming episodes on the topics of psychodrama and defensemap.com.

Stay tuned and please follow on iTunes and subscribe on YouTube!

IN THIS EPISODE:

• How her experience as a federal prosecutor shaped the defense lawyer she would become;
• The need for prosecutors to better understand their own power and the human implications of their charging, plea and sentencing decisions;
• Real-life stories from the trenches about some of our toughest cases, some even with happy endings;
• The "3 Rs" of sentencing Mitigation: Revelation, Relativity and Remorse;
• The unfortunate ongoing abuse of prosecutorial power at the Maricopa County (Arizona) Attorney's Office;
• The incalculable value of conducting an early & thorough mitigation investigation;
• An introduction to a new powerful, free online resource: a comprehensive, confidential questionnaire called "Defense Map";
• An introduction to "psychodrama" and how it can help lawyers connect with clients and witnesses-- and develop a better understanding of themselves in the process;

LINKS:

Adams & Associates, PLC

Defense Map (Free, confidential, online mitigation & defense tool)

FREE RESOURCES: The "3Rs" of Sentencing Storytelling article by Doug Passon. (Scroll to bottom of page for Download button)

Helping us get Set For Sentencing, Prof. Douglas Berman. He is is the Newton D. Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center, housed in the Moritz College of Law of The Ohio State University. Professor Berman is the creator and author of the widely-read and widely-cited blog, Sentencing Law and Policy. The blog now receives nearly 100,000 page views per month.

In this episode:

• What non-capital defenders can learn from looking at death penalty mitigation and trends;
• Making the case for jury sentencing in non-cap cases;
• How draconian sentencing laws and unfettered prosecutorial discretion corrupts justice and results in innocent people being compelled to plead guilty;
• The hope that the US Sentencing commission will institute meaningful changes to the federal sentencing guidelines;
• The future of compassionate release and First Step Act implementation;
• The debate over scrapping the guidelines vs. implementing incremental change;
• How to leveling the playing field by building more mitigators into the guidelines;
• The "one thing" that must animate all good sentencing advocacy

LINKS:

Sentencing Law and Policy Blog

Drug Enforcement and Policy Center

28 U.S.C. Sec. 994 (j), which essentially creates a presumption of non-incarceration for non-violent, "non-serious", first time offenders. BUT, see these 2021 statistics from the US Sentencing Commission, showing that over NINETY PERCENT of defendants receive a PRISON sentence instead.

At least 1 in every 54 Americans are on the Autism Spectrum. But prosecutors and judges often fail to understand what Autism is, why those on the spectrum can be morally blameless for the crimes they have committed, why they are they unlikely to reoffend, and why sending them to prison is cruel and unusual punishment.

Helping us get Set For Sentencing this week, Attorney Jamie Sparks and Dr. Toni Sparks, Asst. Prof. of Practice, Disability & Psychoeducational Studies at the Univ. of Arizona. A dynamic duo, these two sisters combined their expertise to achieve an incredible result for their Autistic client accused of a serious online offense.

IN THIS EPISODE:

• What is Autism Spectrum Disorder (ASD) and why it always matters to the outcome of your case;
• How do we recognize when a client may be on the spectrum;
• Tackling the gross misconception that those with ASD are incapable of empathy;
• Why those with ASD are particularly vulnerable to abuse in the system;
• Why the term "High Functioning" Autism is the ultimate misnomer;
• Why finding the right expert is critical, as not all psych professionals fully understand Autism;
• Tackling the daunting task of educating the prosecutor and judge about Autism and its relevance;
• The exponentially punitive nature of a prison or jail sentence for those with ASD;
• Overcoming government skepticism when there has been no ASD diagnosis prior to arrest;
• Disability laws that give rise to client rights & protections if they are sentenced to jail.

LINKS:

Law Offices of Jamie Sparks

Toni Sparks, Asst. Prof. of Practice, Disability and Psychoeducational Studies, University of Arizona

The 1/6 hearings are in full swing. We don't know what will come of it. What we do know is that there have already been two major indictments brought by the DOJ alleging the crime of "Seditious Conspiracy".

But, it is a total mystery what kind of sentences a judge may impose if convictions ensue. This crime has little precedent in American jurisprudence, and the sentencing guidelines contain more questions than answers.

So, we thought it be good to unravel this whole mess with our resident federal sentencing guideline expert, Mark Allenbaugh of sentencingstats.com!

This is a "YouTube Bonus" episode, because Mark has great visual aids, so the audio stream only tells half the story.

Also, we are trying hard to build our YouTube presence, so we would be eternally grateful if you could, go to our YouTube channel (as the cool kids say), "smash that like and subscribe button!"

Lawyers are fundamentally problem solvers; and narrative is, as Dr. Randy Olson tells us, is "a series of events that occur in search of a solution to a problem." So, if you want to persuade decision makers to reach the right result at sentencing, you must communicate in narrative.

Helping us get set for sentencing this week is communications expert, author, filmmaker, and teacher Dr. Randy Olson.

Dr. Olson has cracked the code of narrative structure. He has taken the myriad complex and often inaccessible story models developed over centuries, and boiled them down to the elegantly simple, immediately actionable, format of "AND, BUT, & THEREFORE". These three magic words embody the indispensible pillars of all great communication: agreement, contradiction & consequence.

Randy has authored several books on narrative communication, including the legal edition of his "Narrative Gym" series, of which I am a co-author. This episode marks our first deep dive into the world of narrative, and I'm so excited to start this conversation with you!

IN THIS EPISODE:

• Lawyers are problem solvers, narrative is problem solving;
• Why we must embrace, not fear, the word "story" at sentencing;
• How to craft a compelling narrative guaranteed to engage a listener and compel them to action;
• Brain science behind narrative communication;
• The difference between "story" & "narrative";
• The "rule of replacing" – a simple technique that can help transform boring and confusing written communication into something clear and persuasive;
• The "Dobzhansky" template & the power of finding ONE narrative thread to tie your presentation together;
• Dobzhansky at work in the OJ Simpson case;
• The magic of "arouse and fulfill" in persuasive advocacy;
• The need to heed "Shirley's Law", and take control over your sentencing story;
• Analysis of MLK's "I have a dream" speech as an example of a perfect "ABT" narrative construction.

LINKS:

The Narrative Gym For Law: Introducing the ABT Framework for Persuasive Advocacy (Amazon)

www.abtframework.com

Prison is not just a potential outcome of sentencing; it can and should be an influencer at sentencing. Where a person will serve their time, how a person will serve their time, and what information follows them into an institution are all integral components of a comprehensive, empathy-based, sentencing presentation.

Helping us get set for sentencing is Maureen Baird. Ms. Baird retired after a distinguished career with the Federal Bureau of Prisons (BOP), including serving as warden of some of the toughest prisons in the system. Ms. Baird now serves as a consultant and expert witness on all things related to the BOP.

IN THIS EPISODE:

• Hope and fear in the BOP;
• The counterproductive outcomes of draconian sentencing laws;
• The lack of meaningful care and treatment necessary to facilitate rehabilitation;
• How telling the story of the "where and how" a person will serve their sentence can influence the outcome of a sentencing hearing;
• Some practical ways to integrate BOP/Prison issues into your sentencing presentation;
• Sample testimony Maureen has given in sentencing mitigation video subsmissions (28:30);
• Sentencing and BOP issues for elderly clients and clients with extraordinary mental or physical health issues;
• Serving time during a pandemic;
• How to attack the BOP's boilerplate response when lawyers raise the issue of lack of proper care;
• The essential role the pre-sentence report plays in BOP placement;
• Understanding the BOP's "security scoring system";
• How to craft a meaningful placement recommendation for the judge.

LINKS:

Maureen Baird @ LinkdIn: https://www.linkedin.com/in/maureen-baird-37637b73/

"Earning Early Release Under the First Step Act" Bloomberg Law, Maureen Baird, Mark Allenbaugh, Alan Ellis:

https://news.bloomberglaw.com/us-law-week/earning-early-release-under-the-first-step-act?context=search&index=1

www.prisonology.com

FREE RESOURCES: Visit the podcast page for more information and free resources related to this episode!

Helping us get set for sentencing is David Rudolf -- attorney, author, and lead counsel in the acclaimed Netflix documentary, "The Staircase", which is now a controversial HBO mini-series.

Mr. Rudolf has been on the front lines of justice for decades as one of the nation's preeminent trial lawyers. He has dedicated his life to giving voice and vindication to a special class of victims in our system -- those convicted and sentenced for crimes they did not commit.

He recently published a riveting look at our dysfunctional system, American Injustice: Inside Stories from the Underbelly of the Criminal Justice System.

In this whirlwind discussion, we cover:

• Rudolf's new Book, American Injustice;
• The Staircase documentary and the new, highly fictionalized HBO miniseries;
• Draconian sentencing statutes and guidelines;
• How confirmation bias and tunnel vision can corrupt every aspect of the criminal justice process;
• The need for accountability for prosecutors and police when the innocent are wrongfully convicted;
• How becoming a client made him a better lawyer;
• Advice for criminal defense lawyers struggling with work life balance;
• The coercive nature of plea bargaining;
• How to handle sentencing when your client maintains innocence;
• AND, the very best ways to inject humanity back into our broken system;

Oh, yes, for all you diehard Staircase fans, we do discuss "the owl theory"!

LINKS:

David Rudolf's Website: https://davidsrudolf.com/

Abuse of Power Podcast:

https://www.audible.com/pd/Abuse-of-Power-with-David-Rudolf-and-Sonya-Pfeiffer-Podcast/

Incredible 3-hour CLE offering on the Staircase:

https://www.nacdl.org/Event/The-Staircase-Lessons-from-the-Michael-Peterson-Mu

https://vimeo.com/332364136 (staircase CLE teaser)

HBO Rebuttals:

https://www-newsweek-com.cdn.ampproject.org/c/s/www.newsweek.com/i-was-michael-peterson-lawyer-still-believe-hes-innocent-1708072?amp=1

https://variety.com/2022/tv/news/staircase-michael-peterson-lawyer-david-rudolf-criticizes-hbo-max-show-1235279215/?fbclid=IwAR2rJLrLZWlNLhQZtQTYKNXanxTANQU9H6MtA6kEpTibXBmbTJjzJKlO2Ew#

the owl theory:

https://amp-charlotteobserver-com.cdn.ampproject.org/c/s/amp.charlotteobserver.com/entertainment/tv/article261821775.html