Afleveringen
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Today history is being made, as the first criminal trial of a former president for multiple felony allegations begins in New York.
But none of the pundits seem to be talking about what happens if Trump loses at trial.
Therefore, helping us get set for sentencing is a superb New York criminal defense attorney, Richard Willstatter, to break it all down.
IN THIS EPISODE:
Possible sentencing ranges if convicted; Whether, if convicted, he could be taken into custody upon conviction or sentencing; Whether the judge can consider âother conductâ of Trump at sentencing if convicted; Where Trump might serve a sentence if convicted; How quickly might sentencing occur should he be convicted; Whether Trump could delay his sentencing if convicted.LINKS:
Trump Indictment & Trump Statement of Facts:
https://www.politico.com/news/2023/04/04/read-the-trump-indictment-document-00087925
Richard Willstatter:
http://greenandwillstatter.com/
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Last Thursday, Judge Lewis Kaplan sentenced Sam Bankman-Fried to 25 years in prison. Some think thatâs an appropriate result. Some think it should have been more.
But this sentence far more than necessary to meet the goals of sentencing. The bigger problem is, there were likely missed opportunities to convince the Judge that justice demanded a lower sentence for Sam.
Therefore, here is the straight scoop on SBFâs sentencing (we have the full transcript) and the larger problems it reveals about federal sentencing and beyond.
IN THIS EPISODE:
Judge Kaplanâs âtip of the capâ to the insurrectionists; The missed opportunity to present powerful sentencing statistics, including average federal sentences for murder, kidnaping, sexual abuse, and child pornography; Judge Kaplanâs explicit comments regarding broken guidelines; Autism Spectrum Disorder â the (largely ignored) elephant in the room; SBFâs sentence compared to (spoiler alert, his sentence is HIGHER than all of âem); The missed opportunity of highlighting a LIFE EXPECTANCY analysis at sentencing; The missed opportunity to tell the story of BOP classification issues;LINKS:
Ep. 73: Sam Bankman-Fried: Is Autism the Missing Piece of Mitigation?
https://youtu.be/jkh6eEkvBRg?si=qXJxNu4SBKCqTWEq
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Zijn er afleveringen die ontbreken?
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The guidelines commission is gearing up to make their recommendations for the next round of amendments. Itâs the follow-up album to their first hit record, which included memorable songs like The âZero Point Offender Boogieâ, and âRelease Me (Compassionately)â. The real question is can they top their debut with their sophomore effort? Will there be any hits? Can we dance to it?
Mark Allenbaugh and I hit the highlights, and offer up some B-side pontifications about the death of the administrative state, why Trumpâs immunity claim is destined to die in the Supreme Court, and what rhymes with âacquitted conductâ????
IN THIS EPISODE:
Proposed amendment to reclassify classic âdeparturesâ into a generic category; Proposed amendment to deal with âintended lossâ issue in fraud cases; The possible death of âChevron Deferenceâ and what that could mean for the guidelines (spoiler alert â it will render all commentary meaningless); Remembering the ârule of lenityâ; Proposed changes to âyouthful offenderâ criminal history provision; Following up on âacquitted conductâ; A really cool discussion about Booker and how the guidelines should (and must) interplay with 18 USC 3553; The only true fix to render the guidelines constitution is to implement âcharge offense sentencingâ; Revisiting the proposed amendment to criterion 10 of the Zero Point Offender guideline.LINKS:
Acquitted Conduct Revisited with Mark Allenbaugh & Prof. Doug Berman:
https://youtu.be/iRG6cbZ_YCY?si=VZ_IEDp5Zq8Z8esC
Imperfect 10: The Commissionâs attempt to fix the Zero Point Offender Criteria:
https://youtu.be/amEXfhgMpa8?si=_tZ9-FIOrw-b4huP
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Mitigation has been an integral part of death penalty defense for decades and there are minimum standards that apply in that context. When an early and thorough mitigation workup occurs, good things happen.
But, many non-capital attorneys donât recognize the need to adopt this approach in their everyday criminal matters. Without good mitigation, even in non-cap cases, the sentening results will almost certainly be disastrous.
Itâs time to make MITIGATION a priority for every defense team.
To that end, a phenomenal and deeply important new article makes the case for the creating minimum standards of care for developing mitigation in non-capital cases. In this week's set for sentencing, we talk to the fantastic four authors of this piece, Elizabeth Vartkessian, Thea Posel, Anthony Ginez, and Lela Hubbard!
IN THIS EPISODE:
Going back three generations to develop mitigation; Need for repeated and face-to-face interviews; The need for a team approach to mitigation; The importance of âcoalition buildingâ; Anticipated resistance to uniform mitigation standards in non-cap cases; How uniform standards will force more funding for mitigation; How uniform standards will give attorneys more support for second-look cases; How to bridge the gap between the data and the narrative; Preventing mitigation âbackfireâ; Where we are in the process of securing uniform standards and how you can help.LINKS:
Article under consideration:
https://law.utexas.edu/faculty/publications/2023-when-justice-depends-on-it-the-need-for-professional-standards-for-mitigation-development-/download
Capital guidelines For Mitigation:
https://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v36n03_cc1_guidelines_final.pdf
https://www.americanbar.org/content/dam/aba/administrative/death_penalty_representation/Standards/National/supplementary-guidelines-mitigation-july-2008.pdf
Campaign for fair sentencing of youth: https://cfsy.org/
Community Resource Initiative (now âFull Picture Justiceâ) https://www.fullpicturejustice.org/about
Advancing Real Change (ARC) https://advancechange.org/
FIRST EPISODE WITH DR. LIZ! As we discussed, Dr. Vartkessian was the VERY FIRST guest on Set for Sentencing. For a stroll down memory lane, here is that link:
https://setforsentencing.com/podcast/disrupting-the-dehumanizing-sentencing-process/
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The Bureau of Prisons is dysfunctional, dangerous and dehumanizing. Its failures have been well-documented recently in the press, in OIG reports, and in judicial opinions.
But some judges still don't understand that they have the power and the responsibility to do something about it. Moreover, lawyers don't always know that BOP dysfunction is powerful sentencing mitigation. More specifically, if the BOP is ill-equipped to provide adequate medical care, mental health treatment, programming and safety, then we MUST send less people to BOP and for less time!
This isnât just my opinion â itâs a direct quote from the Director of the Bureau of Prisons, Collette Peters, on her recent appearance on 60 Minutes.
Helping us get set for sentencing is a returning champion, Walter Pavlo, frequent Forbes contributor and founder of prisonology.com, a reputable BOP consulting firm.
IN THIS EPISODE:
The good, bad and ugly of Collette Petersâs recent 60 Minutes appearance; The scathing new opinion from Judge Furman of the SDNY concerning abysmal conditions in MDC Brooklyn; Changes to the sentencing guidelines support giving less time to less people and alternatives to incarceration; Practical advice for presenting BOP problems as MITIGATION in every sentencing and re-sentencing (i.e. compassionate release, clemency, etc.).LINKS:
Walter Pavlo: www.Prisonology.com
60 minutes piece with Collette Peters: https://youtu.be/3l6wdVxr6nE?si=71Wy9-d9WoQkDh6B
Furman Opinion (U.S. v. Chavez): https://www.nysd.uscourts.gov/sites/default/files/2024-01/22cr303%20US%20v%20Chavez%20Opinion%201.4.2024-1.pdf
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Other BOP PODCAST EPISODES:
Prison Consultants and the Myth of the Fixer: https://setforsentencing.com/podcast/prison-consultants-and-the-myth-of-the-fixer-how-to-separate-substance-from-snake-oil/
BOP Stands for Big Ol' Problems: Exposing Dysfunction & Danger at the Federal Bureau of Prisons https://youtu.be/kYn1uq-Hfes?si=b6fWmPDMdc8Soe0_
BOP Stands for âBackwards On Purposeâ With Current BOP inmate Bilal Kahn: https://youtu.be/MQjT-anqAjg?si=sVk0c3yn-T96AyZ
Telling the story of Prison at Sentencing with Maureen Baird: https://youtu.be/fCls6d1pzuA?si=kprd9q2DCaI7XPie
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Recent OIG report on inmate deaths (suicides, medical emergencies, homicides) in BOP:
https://oig.justice.gov/news/doj-oig-releases-report-issues-surrounding-inmate-deaths-federal-bureau-prisons-institutions
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The Federal Prison System is in Crisis. Here are the Top 3 Reasons Why, The Hill, 2/9/24
https://thehill-com.cdn.ampproject.org/c/s/thehill.com/opinion/4457805-the-federal-prison-system-is-in-crisis-here-are-the-top-3-reasons-why/amp/
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The criminal justice system is a tool of social control. And no where is that more evident than on our nation's Indian reservations. American Indians have been the targets of the wrath of the criminal process since the day a renegade Sioux warrior Crow Dog shot Chief Spotted Tail dead in the late 1800's.
We can watch wonderful films like Dances With Wolves & Killers of the Flower Moon to learn about the atrocities committed against American Indians way back when.
But many of us believe those terrible days are behind us and the American Indian now enjoys full and unfettered rights. Of course, thatâs a myth, and no where does that myth come into living color than in tribal and federal court.
Therefore, helping us get Set for Sentencing this week is Arizona attorney, member of the Navajo Nation, and fierce public defender working for the Salt River Pima Indian community in the greater Phoenix Area, Melanie Yazza.
Melanie and I met years ago when we had a mutual American Indian client who was wrongfully accused of sexually assaulting his teenaged step-daughter. It was a hard fought case, and thankfully justice was done.
IN THIS EPISODE:
How a person ends up being charged BOTH tribally and federally for the same offense; Different possible punishments in tribal and federal court; Why the concept of âdouble jeopardyâ does not apply; Whether tribal judges must actually be lawyers; Whether you are entitled to a jury trial in tribal court; Who makes the sentencing decisions in tribal court; The story of Crow Dog & Spotted Tail and how the feds stole jurisdiction away from the tribes for âmajor crimesâ; The story of how we successfully defended a wrongfully accused client; Cultural differences that make a difference in defending an American Indian client and some practical advice to bridge the cultural gap; Drugs on the reservation and mandatory minimum sentences for simple possession.LINKS: If you want some more scoop on the feud between Crow Dog and Spotted Tail and the ensuing Major Crimes Act, hereâs the wiki: https://en.wikipedia.org/wiki/Ex_parte_Crow_Dog
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The government often weaves false sentencing narratives about our clients: they are born bad, uncontrollably violent, no concern for others, no respect for the law. Thereâs always a more truthful, powerful, and humanistic story to tell. And in some of those cases that story could be LEAD POISONING!
The fact is, the probability of those who have been poisoned with lead and other toxins as children are much more likely to run afoul of the law because of frontal lobe damage affecting judgement, impulsivity, executive functioning, and a host of other impairments. Moreover, thereâs a significant correlation between lead poisoning and violent crime. External factors such as stress and trauma exacerbate the effects of lead poisoning.
Iâm sure Iâve missed this issue more than a handful of times in the 1000+ cases Iâve handled, because I didnât know what I didnât know on this subject. I don't want that to happen to you.
Therefore, in order to put this issue on all of our radars, helping us get set for sentencing is a world-class expert on lead poisoning, neuropsychologist Dr. Ted Lidsky.
IN THIS EPISODE:
What are common ways a child can be exposed to lead; How do you quantify or prove lead exposure if it happened so long ago; Half-life of lead in the brain and bones; Some telltale signs of lead poisoning; Lead causing problems with impulse control; Socio-economic disparities of lead poisoning and help to ameliorate the fallout; Why a child can appear normal yet still have significant brain damage; The importance of âeffect modificationâ in developing the whole lead poisoning narrative.If you think you need an expert to deal with a led poisoning issue in your case, reach out to Dr. Lidsky at: [email protected]
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What better way to start off the new year than to review some of the big guideline changes that took effect at the end of the year, and some forward looking sentencing commission proposals for changes that could be coming in 2024? We kick off this year with our friend and colleague, guidelines and sentencing stats guru, Mark Allenbaugh. Heâs drinking coke, Iâm sipping Don Rico tequila.
IN THIS EPISODE:
Some major changes we gave short-shrift to in previous episodes, including the 3rd point for acceptance of responsibility, and changes to status points related to criminal history, and changes to the âsafety valve provisionâ; The need for aggressive pre-trial litigation, and now without fear of losing the 3rd point; Newly proposed amendment pertaining to âacquitted conductâ; Newly proposed amendment moving âintended lossâ into text of guideline, thereby resolving the issue created by Kisor v. Wilkie; Newly proposed amendment related to âcriterion 10â of the Zero Point Offender guideline (ZIPPO), and the need to reach out to the commission to oppose this; Dougâs plans to publish his book on mitigation videos in 2024.CONTACT THE SENTENCING COMMISSION (OR YOUR CONGRESSPEOPLE) ABOUT PROPOSED GUIDELINE AMENDMENTS:
We spent a fair amount of time on the proposed changes to the new Zero Point Offender provision, in particular, the Commissions stated desire to amend the guideline to clarify the leader/organizer exclusion. There is NO EMPIRACAL evidence to support the claim that those who participated in a conspiracy and had an enhanced role in the crime are prone to recidivism!
You can find all proposed amendments here: https://www.ussc.gov/guidelines/amendments/proposed-2024-amendments-federal-sentencing-guidelines
For some proposed language to include in your correspondence, this is the gist of our argument:
The proposed amendment to criterion 10 to place the âcontinuing criminal enterpriseâ language into a separate criterion is not a âtechnicalâ amendment. It would presumably preclude any offender who received an upward adjustment under 3B1.1 from receiving the new downward adjustment under 4C1.1.
The commission prides itself on making data/empiracally based adjustments to the guidelines. However, the Commission has cited no empirical evidence to support such a broad exclusionary criterion. Moreover, given the significant litigation that already has ensured regarding both the prospective and retrospective application of 4C1.1, any amendments now will cause further confusion over application of USSG 4C1.1.
As the Commission itself has indicated, criterion 10 (in its current form) is taken from the fourth prong of the safety valve at 18 USC 3553(f)(4). Courts have interpreted 18 USC 3553(f)(4) to exclude from the safety valve only management-level drug traffickers, i.e., only those engaged in a âcontinuing seriesâ of drug offenses âfrom which such person obtains substantial income or resources.â 21 USC 848(c)(2). Excluding such individuals from receiving the Zero Point Offender adjustment makes sense inasmuch as such offenders are, by definition, recidivists.
However, the Commission created 4C1.1 to address the fact that those with zero criminal history points have significantly lower rates of recidivism than those with even a single point. As there is no evidence to suggest that an offender that otherwise meets all the 4C1.1 criteria presents a substantial risk of recidivism merely because the offender received an adjustment under 3B1.1, the Commission should decline to make further amendments to the criteria at 4C1.1 at this time.
Readers may submit their comments to the Commission on or before February 22, 2024 here: https://comment.ussc.gov/apex/r/ussc_apex/publiccomment/home
LINKS TO OTHER RELEVANT SET FOR SENTENCING EPISODES:
Ep. 36: Presumed Guilty: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences:
https://youtu.be/93dOQ76t7tw?si=jx1_CFV2P8JnITt8
Ep. 65: Acquitted Conduct Revisited: Mmmmm... Flavors of Evil:
https://youtu.be/iRG6cbZ_YCY?si=5tOVXg2QWKES--Js
Ep. 72: Imperfect 10: Why thousands will be deemed ineligible for the ZPO and what to do about it:
https://youtu.be/amEXfhgMpa8?si=jEJ_W9fiGvRCDKis
Last, but not least, the wonderful tequila I was sipping in this episode, is Don Rico (Don Rico Tequila | ÂĄAy QuĂ© Rico! | Austin, Texas (ayquerico.com)) I donât get compensated for these endorsements. I just love talking about (and sipping) great tequila! The cool thing about Don Rico, besides it being delicious and confirmed additive free on Tequila Matchmaker, is that the company was started by a fellow lawyer, Rick Olivo. Rick represented a major brand, fell in love with tequila, and started his own brand. Itâs not yet available in every state, but hopefully it will be soon.
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Hey everybody. We've been dropping new episodes every week for for about 80 weeks now. It's time to sit back, relax and ride out the rest of 2023. We'll be back in full force come 2024. Until then, enjoy some old episodes, like, share, subscribe and spread the word. Together we will make meaningful and lasting change in our broken sentencing system. Until then, keep the faith, hang in there, and take care of yourselves.
www.setforsentencing.com
www.dougpassonlaw.com
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David DePape did something terrible, breaking into the San Franscisco home of Nancy and Paul Pelosi, attempting to Kidnap the former Speaker of the House, and savagely attacking her husband with a hammer. He was just convicted in federal court for his crimes, with more to come in state court.
He is more than just his crimes. But sadly, the likely truth of DePapeâs mitigation story has yet to be, and may never be fully told.
So letâs get set for sentencing with Doug Passon and Mark Allenbaugh!
IN THIS EPISODE:
Sentencing guidelines discussion; Why DePape faces an almost certain life sentence; DePapeâs potential incarceration location; The ongoing terrible dysfunction of the Federal Bureau of Prisons; Discussing DePapeâs possible mental health issues and why they have not yet come into play; The BOPâs inadequacy providing mental health (or any health) treatment.LINKS:
We talked about data Mark obtain from the Judicial Sentencing INformation database, or "JSIN". We did a podcast on this a while back:
https://setforsentencing.com/podcast/jsin-will-judicial-sentencing-information-mutilate-the-stats-or-slash-sentences/
Doug mentioned that the crimes here were very similar to that of the plot to kidnap the govenerner of Michigan (Gretchen Whitmer) and livestream her "trial". The difference here, at least as it comes to defendant Ty Garbin, was that Mr. Garbin came to understood how wrong his beliefs and conduct were, and went to great lengths to atone for his crimes. As such, unlike his co-defendants who went to trial and fought to the bitter end, he received a very lenient sentence. The same fate does not await Mr. DePape, who also is still unfortunately unyeildingly entrenched in his conspiracy theories. If you'd like to see the sentencing mitigation video Doug Passon produced for Mr. Garbin's case, his lawyers made it available here:
https://youtu.be/AOhOY3uuvRQ?si=AOxezRfKx-0bYkfX
Lastly, Doug mentioned a case involving a client with Delusional Disorder. He litigated that case with an extraordinary attorney by the name of Donna Elm. Donna and Doug did a podcast on this subject a while back. Take a listen!
https://setforsentencing.com/podcast/rotting-with-your-rights-on-indefinite-detention-for-incompetent-clients/
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Three lawyers (so far) have plead guilty in the Georgia State RICO case. I had so many questions about what these pleas and sentencings really meant - for the lawyers who entered them, the remaining defendants, and the pending federal matters.
But, I don't practice in Georgia state court.
Therefore, I put out the "bat signal" on the NACDL listserve and found two wonderful lawyers to help us break it all down: Thomas Church & Jeff Brickman.
IN THIS EPISODE:
First Offender Act sentencings in Georgia; Consequences for violating these agreements; Remorse, acceptance, and letters of apology; Significant differences between state and federal diversion pleas; The efficacy of pleading in GA, when they still likely face federal charges; The possibilty of deals being already in place with Jack Smith (i.e. "global resolution"); The beef over Jennaâs legal fees; Predictions for what comes next. -
The day after Halloween, all of the proposed guideline changes went into effect! We've talked about many of them in detail on previous podcasts, but here, we do a quick run-through of all eigiht categories of amendments. So what's in our candy bags the day after? Well, in truth, most of what we got were TREATS, but we have a few TRICKS as well. There's plenty to love here, but there are also a few catagories of offenses that could result in increased guideline calculations.
Helping us get Set for Sentencing, our returning champion, guidelines guru Mark Allenbaugh to help run through all of it.
IN THIS EPISODE:
The EIGHT categories of guidelines changes that went into effect on 11/1/23 Some practical tips and tricks for dealing with them: Compassionate release (treat) Criminal History (treat) Acceptance of Responsibility (treat) New enhancement under the firearms guideline (trick) Career Offender guidelines (trick) Safety Valve (treat, but a lame circus peanut cleanup treat) Fentanyl enhancement (another weak treat) Sexual Abuse of a Ward Enhancement (itâs a trick for the staff of the Federal Bureau of Prisons, who seem to have a sexual abuse problem in their facilities, and most definitely a treat for their many victims.) Why the commission is starting to move âcommentaryâ into the guideline itself, in order to bypass new law (Kisor) that renders commentary non-binding on judges. If you have a case involving INTENDED LOSS under the fraud guidelines, be aware of the Kisor argument that gives you a solid argument (in some circuits) that thereâs no such thing as âintended lossâ; The connection between the Sexual Abuse of a Ward enhancement and the new expanded grounds for Compassionate release, and some practical tips for inmates who are victims of abuse in prison.OTHER PODCAST EPISODES WORTH CHECKING OUT:
IMPERFECT 10 - Beware criterion 10 of the Zero Point Offender provision that seems to preclude the 2-level reduction where a person previously received a "role enhancment". Don't give up so easily on this issue!
https://setforsentencing.com/podcast/imperfect10/
GOIN' RETRO: RETROACTIVE APPLICATION OF ZERO POINT OFFENDER AMENDMENT:
https://setforsentencing.com/podcast/goin-retro-retroactive-application-of-zpo-and-status-point-amendments/
The First ZERO POINT OFFENDER PODCAST: THE ZIPPO IS ON FIRE!
https://setforsentencing.com/podcast/zippo/
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Itâs Halloween! What better time to talk about FEAR!!!???
Many think fear is the great motivator, but it can also be the great debilitator. Fear prevents lawyers from "going for it" at sentencing and making the extraordinary ask on behalf of their clients. Fear also prevents those clients from communicating their own truth on the big day.
Therefore, helping us get Set For Sentencing is Prof. Heidi K. Brown, author of âUntangling Fear in Lawyeringâ. Sheâs here to tell us how to let go of fear and help our clients do the same.
Prof. Brown teaches legal writing at New York Law School, she's an acclaimed author, speaker, avid boxer and rabid U2 fan.
IN THIS EPISODE:
Prof. Brown's 4-step process for "untangling fear"; Understanding "somatic intelligence" how our bodies react to fear; Tips for physically preparing for a stressful interaction (like a court appearance); Tips for helping clientâs prepare for stressful moments in their case; How the âsweet scienceâ of boxing can save your soul; The connection between fear and creativity; Lawyer wellness; How fear impacts non-verbal communication.LINKS:
https://www.theflourishinglawyer.org/
Heidi K. Brown on Instagram: https://www.instagram.com/theflourishinglawyer/
Heidi K. Brown on Twitter: https://twitter.com/introvertlawyer
One of the reasons I was drawn to Prof. Brown's work was the 3-part podcast series I did on "FEARLESS LAWYERING". These are all examples of brave lawyers who shot for the moon at sentencing and acheived astounding results. If you haven't heard those episodes, check them out:
Fearless Lawyering Vol. 3: New Mexico Attorney Joel Meyers gets a mind-blowing result in a career-offender high level drug trafficking offense:
https://setforsentencing.com/podcast/joelmeyers/
Fearless Lawyering Vol. 2: Asst. Federal Defender Kara Hartzler helps expose the racist history of federal immigration laws:
https://setforsentencing.com/podcast/racist1326/
Fearless Lawyering Vol. 1: Asst. Federal Defender Sharon Hicks gets probation on a resentencing for a DUI/Manslaughter case:
https://setforsentencing.com/podcast/fearlesslawyer1/
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In a âPOST TRUTHâ society, it can be hard to determine if what you are watching is the actual truth. In reality TV, documentary filmaking, and even the so-called "news", truth is not always a sacred value.
But in my world, nobody would be surprised to hear me say, the truth is hard to discern.
But, many presume that those who advocate for the accused and convicted do not seek the truth. In my experience, particularly in the sentencing world, it's the government that has no concern for the deeper truth of the case and client.
I read sentencing memos from the government describing defendants I do not recognize. I listen to some callous judges pronounce sentences against defendants and I donât know who they are talking about.
So how do we get to the real truth at SENTENCING? I can make a credible case that my passion, video sentencing advocacy, is the TRUEST form of legal advocacy there is. It gives the decision maker a front row seat to the clientâs story, her demeanor, her credibily, and her sincerity. Itâs objectively verifiable if the interviews and editing are done properly.
Perhaps most importantly, unlike any other form of media, the lawyers who engage in this process are bound by the rules of ethics. There are no ethical standards in journalism, reality TV, or regular documentary filmmaking.
Therefore, how cool is this? Helping us get Set For Sentencing is Debbie Levin, a long-time Hollywood creative professional who has spent most of her 18 years in the world of Reality Television, working on shows weâve all lovingly binged, including the Real Housewives of OC/NJ, Top Chef, and many more. We had a GREAT conversation around the truth about truth!
In this episode:
Is legal filmmaking true? Whatâs the difference between âliteral truthâ and âemotional truthâ? The inside scoop on reality TV (including the âBethany Frankel Clauseâ); How even nature documentaries, supposedly unvarnished views into the natural world sometimes lie for entertainment value; The wonderful world of âfrankenbytingâ which we reality shows can do, but legal documentaries cannot (and the greatest example of all time from the Simpsons); The very best advice for telling the truth of your clientsâ stories.LINKS:
Just what the hell are "sentencing mitigation videos" anyway? Wanna see one? Here's an example from a case I worked on involving the plot to kidnap the governer of michigan:
https://youtu.be/AOhOY3uuvRQ?si=ikj47EHiqsNy9d7P
I referred to a New York Times "Op Doc" that was made about the work that I do producing "sentencing mitigation videos". Here is the link to see that piece, called "No Jail Time, the Movie"
https://www.nytimes.com/video/opinion/100000005581635/no-jail-time-the-movie.html
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Sam Bankman Fried is almost certainly on the Autism Spectrum. And, if his lawyers can fully understand ASD, they would have a better chance at acquitting their client by explaining to the jury why his actions may not have been nearly as intentional and calculated as they seem. Moreover, if heâs convicted, ASD would go far to present a compelling mitigation narrative.
But, there seems to be zero mention of ASD in the case thus far. That means, SBF is not only almost certainly going to be convicted in short order at trial, but the judge will punish him more severely at sentencing due to the inevitable weak-sauce mitigation story his lawyers will end up telling.
We talk about all of this, including SBFâs sentence exposure, and predictions for the sentencing outcome in the case. Itâs a long episode, but it jammed packed with useful information.
Defense lawyers: NOW IS THE TIME TO LEARN ABOUT AUTISM SPECTURM DISORDER. We have all had clients on the spectrum. Weâve missed it. It matters at every stage of the proceeding. There are experts who know these issues inside out and they often help achieve seemingly impossible results in our cases.
IN THIS EPISODE:
Why autism matters at every stage of the proceeding; SBFâs guidelines if convicted; Possible mitigation narratives for sentencing; How the guidelines do not expressly call for âstackingâ when the guidelines exceed the statutory maximum on any given count of conviction; Why SBF may still qualify for the âZero Point Offenderâ reduction (and why it won't matter); Even though heâs looking at potentially 110 years if convicted, how Mark Allenbaughâs sentencing stats analyses could save his life; Potential fine ranges if convicted (Doug and Mark disagree with the fine potential); How the instability of cryptocurrency is sentencing mitigation; Life expectancy as mitigation; The deplorable conditions of BOP âcampsâ which will create excruciating conditions of confinement for SBF; Mark and Doug make their (wildly divergent) sentencing predictions if convicted.USEFUL LINKS:
We made reference to a potpourri of past podcast episodes, so here are thinks in case you haven't heard:
Episode 46, Defending Autism with Mark Mahoney (PART ONE):
https://setforsentencing.com/podcast/defending-autism-mark-mahoney-pt-1/
Episode 46, Defending Autism with Mark Mahoney (PART TWO):
https://setforsentencing.com/podcast/mark-mahoney-pt-2/
Episode 5, Understanding Autism at Sentencing with Jamie and Toni Sparks:
https://setforsentencing.com/podcast/understanding-autism-at-sentencing/
Episode 66, Straight to Sentencing: Pre-Trial Detention Through the Lens of SBF and DJT:
https://setforsentencing.com/podcast/straight-to-sentencing-pre-trial-detention-through-the-lens-of-sam-bankman-fried/
Episode 3, Telling the Story of Prison at Sentencing (with Maureen Baird):
https://setforsentencing.com/podcast/telling-the-story-of-prison-at-sentencing/
Episode 72, Imperfect 10: Why Thousands Will be Deemed Ineligible for the Zippo and What to Do About It:
https://setforsentencing.com/podcast/imperfect10/
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On Nov 1, the Zero Point offender Amendment to USSG goes into effect. WE CALL IT THE ZIPPO (ZPO).
It is retroactive, and thousands facing sentencing and already sentenced should be eligible to have their sentences reduced.
BUT what happens if you received a guideline bump under 3B1.1, for being a âleader organizerâ?
Because of the imperfect drafting of "CRITERION 10", the Sentencing Commission presumes that any defendant who receives this role adjustment to be ineligible for the ZPO. BUT THEY ARE LIKELY WRONG.
In this episode, we discuss why the reading of "CRITERION 10" is flawed, and why it is only defendants who receive a role adjustment while engaged in a continuing criminal enterprise, i.e., an on-going drug distribution conspiracy, are ineligible.
This is significant because the Commission estimates that only approximately 11,500 currently incarcerated inmates are eligible for retroactive application of the ZPO. Since fiscal year 2013, on average roughly 3,000 defendants receive a 3B1.1 roll adjustment each year, but no more than half of them were convicted of drug distribution offenses.
Thus, the Commission may be underestimating the number of ZPO eligible inmates by half. In other words, if offenders who have received a role adjustment are not automatically precluded from receiving the ZPO, there actually could be well more than 20,000 inmates currently eligible for a sentence reduction pursuant to the ZPO.â
IN THIS EPISODE:
The breakdown of the relevant provisions and the analysis as to why leader/organizers should still qualify for the ZPO; Using the recent Pulsifer âsafety valveâ case to bolster our argument;LINKS & FREE RESOURCES:
I was a contributing author to part 2 of a two part series on prospective and retroactive application of the ZPO in Law 360. Visit the shownotes to download free copies of the full series: www.setforsentencing/podcast/imperfect10
Don't forget to check out:
zeropointoffender.com
dougpassonlaw.com
sentencingstats.com
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A jury convicted Danny Masterson of two counts of forcible rape in California state court, and the judge just sentenced him to thirty years. It was a daunting task for his lawyers, because Masterson maintained his innocence to the bitter end. If the lawyers could have successfully threaded that needle, then Masterson would have potentially received fifteen years instead of thirty.
Unfortunately, the sentencing presentation hit all the wrong notes. Moreover, there was massive blowback over the sentencing letters submitted on his behalf, particularly the ones from his famous friends, including Ashton Kutcher and Mila Kunis. The letters did more harm than good, not only for Mr. Masterson, but for those who, with all good intentions, were offering their support.
Therefore, join us for a whole lotta teachable moments as we dissect every aspect of Masterson's Sentencing with our good friend and colleague, Mark Allenbaugh.
IN THIS EPISODE:
Quality over quantity when it comes to sentencing letters; How to tell a mitigation story for a client who maintains their innocence at sentencing; How lawyers must lead and actively manage the mitigation narrative, particularly when it comes to sentencing letters; How tone deafness can result in the deafening sound of your bell being rung on the big day; The dangerous territory of using your kids/family as a sympathy ploy at sentencing; What we can learn from how the victimsâ statements far outweighed the supporters statements in terms of their emotional power and persuasion.LINKS & FREE RESOURCES:
www.sentencingstats.com
www.zeropointoffender.com
We talked a lot about a great article by a former federal Judge, Mark Bennett about his five rules for sentencing allocution. To download the article, visit the shownotes for this episode at www.setforsentencing.com/podcast/masterson/
Lastly, we talked about the "3Rs" of sentencing mitigation. If this is new to you, and you want to download the article Doug Passon wrote on this subject, same deal... visit the shownotes for this episode! www.setforsentencing.com/podcast/masterson/
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What is the purpose of prison? Most people think the very fact of being removed from society, loved ones, and life in general, is the punishment. But thatâs only the beginning. Once you get inside the walls of the BOP, the real punishment begins. Intentionally or not, those in charge of BOP facilities make the time a client spends inside exponentially more punitive by exposing them to daily indignities, deprivations, and unfathomable risks to their physical and mental well-being.
Judges need to understand the truth about the dysfunction and chaos inside the walls of the BOP and consider alternatives to incarceration, particularly when it comes to non-violent, first time offenders.
Helping us get set for sentencing, our 2nd conversationwith Bilal Khan. He's a current inmate in the federal BOP and he is not afraid to speak his truth about what life is like on the inside.
IN THIS EPISODE:
Deprivation, indifference, even DEATH inside the walls of the federal BOP; Understaffing and Staff morale; Lack of accountability for staff and inmates; Safety and security issues, violence, sexual assaults; Contraband inside the walls of Ft. Dix; The myth of the âcountry clubâ environment of minimum security satellite camp facilities; The importance of filing administrative remedies and making a record; The importance of making sure all pertinent information goes into your clientâs Pre-Sentence Report; The importance of reaching out to your representatives (House and Senate) to demand action.LINKS:
Don't take the inmate's word for how bad things are inside the walls of the BOP. Check out this recent episode we did with former BOP officials who confirm virtually every claim made by Mr. Khan: BOP stands for Big Ol' Problems, With Maureen Baird, Janet Perdue and Walt Pavlo at prisonology:
https://setforsentencing.com/podcast/bop-stands-for-big-ol-problems-exposing-dysfunction-danger-at-the-federal-bureau-of-prisons/
Also, this is Mr. Khan's 2nd appearance on Set for Sentencing. He recently authored the Book "Surviving Pretrial", available now on Amazon. Here's the link to our last conversation, and a link to purchase his book:
https://setforsentencing.com/podcast/surviving-pretrial-vol-1-is-my-lawyer-any-good/
SURVIVING PRETRIAL, by BILAL KHAN, ON AMAZON: https://a.co/d/9ZhE9h5
By total coincidence, this compelling and comprehensive NPR article came out right before this podcast episode dropped - it documents the high rate of DEATHS in the federal BOP due to failure to render prompt medical care, short staffing, and other issues:
https://www.npr.org/2023/09/23/1200626103/federal-prison-deaths-butner-medical-center-sick-inmates
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Telling your client's true and powerful mitigation story is the most important part of sentencing. But we lawyers are never taught how to do it right. The bigger problem is, a lawyer's failure to take control over the narrative can lead to disastrous consequences on the big day.
Therefore, we need expand our horizons and learn from story professionals inside AND outside of the legal world.
Park Howell is exactly that guy. Park is a brand storytelling strategist and keynote speaker. He is the creator of the Business of Story Podcast, recently ranked the #1 business podcast in the world by Feedspot. He is the co-author of the Narrative Gym for Business (a companion book to my Narrative Gym For Law) among other great works.
In this episode, Park brings his business/marketing storytelling acumen to make narrative concepts relevant and real to our legal community. And, perhaps most fun, the two of us of spend a lot of time geeking out on what we can learn from our favorite (and not so favorite) movies and TV shows!
IN THIS EPISODE:
How to focus on the true hero of your criminal defense story; Great examples from the marketing/business world lawyers and clients can apply in their persuasive advocacy; The âAnd, But, Thereforeâ narrative framework; The beating heart of narrative: âfind the hurt, amplify the pain, heal the woundâ â what it means and how to do it; The importance of injecting emotion into your narrative; The power of the word âbecauseâ; A whole lot of fun examples from movies and television to elucidate the concept of âfind the hurt, amplify the pain, heal the woundâ The value of âfinding your tornadoâ â the thing that throws your whole story into motion (another expression of the âBUTâ statement of the ABT); A little bit of the big man, Joseph Campbell, because no discussion of narrative is complete without it; A word about the lawyer show âSuitsâ, cause you know, that seems to be what everyoneâs watching these days.LINKS:
The Business of Story Website: www.businessofstory.com
The Business of Story Podcast: www.businessofstory.com/storytelling-podcast/
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The Zero Point Offender and Status Point modifications to the Sentencing Guidelines go into effect on November 1. They are RETROACTIVE.
But not everyone knows whether they may benefit from the changes or how to go about getting that benefit.
Therefore, helping us get Set for Sentencing, Mark Allenbaugh, and Keith Hilzendeger to tell us everything you everything you need to know.
This episode is for those who have resources to engage private counsel to fight this fight, or for those who may need help from the Federal Public Defender.
Either way, change is coming, and we must be ready.
IN THIS EPISODE:
PART ONE: MARK ALLENBAUGH
Overview of the âZIPPOâ, or ZERO POINT OFFENDER guideline amendment; Overview of the âstatus pointsâ adjustment changes; Retroactivity and the February 1, 2024 target date; 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! Using compassionate release motions to effectuate the change on the grounds that if you are immediately eligible for release, you shouldnât have to wait until February 1, 2024; Covid is still a thing, and why it matters to Zippo motions; What to do if your sentencing is set before the changes take effect (11/1/23).PART TWO: KEITH HILZENDEGER, ASST. FEDERAL PUBLIC DEFENDER
Advice for clients who cannot afford to hire counsel to deal with Zippo/Status Point changes.
LINKS:
For an overview of the Zero Point Offender (ZIPPO) amendment, check out episode, ___ where we go into all the basics.
https://setforsentencing.com/podcast/zippo/
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