reframing resentencing

change the tenor of your hearing by changing the nature of the conversation

change the conversation with yourself

•purpose of the hearing •process driven, not outcomes-driven • restorative justice model •capital case model • the “ultimate question”

the only question that matters: can he someday rehabilitate?

change the conversation within your case

•your client•your client’s community•victims and survivors•experts

your client

• relationship + rapport • restorative justice materials•proximity + safety • local transportation•multiple team members •giving •what has your client given?•what else can he give?

giving

•motivation• letters/direct actions • victims• survivors• client’s family/community•meaningful indirect actions• spiritual• recovery• advice to others

your client’s community

•does your client’s community believe that he can rehabilitate? • family• teachers/counselors • spiritual figures • COs

your client’s community

• relationship + rapport •empowerment•bring them together •give them jobs •storytelling + concrete examples as exhibits

your client’s community

victims + survivors

•your motives + intentions•your communication style •strategy concerns • stoke vs. diffuse

•your expectations

no expectations

experts

•opine on the ultimate question?•prison expert• juvenile brain development •advantages vs. pitfalls • clear record • trust •overreaching•opening the door

change the conversation in court: Miller factors, not sentencing factors

framing the briefs

framing the briefs • sentence is unconstitutional unless court

considers Miller factors

• aggravating vs. mitigating factors are secondary considerations and are encompassed within Miller factors

• frame + relate everything to miller factors • sentencing briefs • exhibits and documents • live testimony• opening + closing statements

framing the hearing

• administrative expectation-setting• multiple days• live witnesses• special setting • briefing schedule

• substantive expectation-setting• acknowledge victims + survivors• opening statement

good morning

mitigation video

• admissibility• the mitigation video of family members is nothing

more than a collection of “unsworn written statement[s]” and, as such, is permitted in a criminal sentencing.

• EC 250 (“writing”)• California Rules of Court 4.4115

• supplement/alternative to live witnesses • short thematic snapshot • logistics: language, distance, cost• humanizing, comfortable environment• props • fragile witnesses

mitigation video

live testimony

• your client’s community • prepared through purpose• difficult cross questions (can backfire for DA) • counterbalances live victim/survivor testimony

• experts• allows for court questions• more thorough explanation• different learning/absorption styles• setting traps

your client’s testimony

• motivation• preparation• purpose• cross-examination practice • even if you don’t think you need it …

• timing

• admissibility of other important documents• healing • empowerment