Sentencing-Mitigation Videos Raise Concerns, Missouri’s Flag Desecration Law is Unconstitutional, and Dogs are in the Courthouse

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: May 31, 2014

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This week in legal news highlights the use of sentencing-mitigation videos in criminal trials, reminds Americans that laws prohibiting flag desecration are unconstitutional, and reports on the emergence of comfort dogs as witness aids in the courtroom.  

Use of Sentencing-Mitigation Videos Raising Questions in Criminal Courts

The Wall Street Journal reported this week that convicted criminal defendants are increasingly making use of sentence-mitigation videos that portray them in a sympathetic light to jurors.  The videos have their genesis in the offices of public defenders who submitted short documentaries about defendants’ lives to explain, if not partially justify, their criminal activity. Highlighted in the WSJ piece is the video produced by lawyers representing Randy Ray Rivera – a Brooklyn resident who pleaded guilty to conspiring to distribute crack-cocaine.  Mr. Rivera’s video told the story of a young man growing up in a broken home with a heroin-addict mother who died of AIDS in 2004.  The video featured emotional interviews from family members, social workers, and the defendant himself who claimed that he sold drugs in order to feed himself and his family.  Although federal prosecutors sought a sentence of 30 years to life in prison, Mr. Rivera was sentenced to only 12 years for his crime.

Private attorneys and public defenders point to cases like Mr. Rivera’s as an example of the success of sentence-mitigation documentaries.  Federal public defender Doug Passon claims that sentences are “almost always better” after jurors are shown a video, and supports the increased use of the short documentaries.  The videos are designed to engender sympathy for defendants who arguably are driven to criminal activity by difficult family and socio-economic situations.  As the title suggests, sentence-mitigation documentaries are not used during the phase of trial in which guilt is determined – attorneys employ them during sentencing to encourage jurors to fairly evaluate all the circumstances of the crime and come up with an appropriate punishment.

Prosecutors, and some judges, have spoken out against the videos for a number of reasons.  Some believe that it is impossible to show the impact of certain crimes – particularly drug distribution – meaning that jurors will only be presented with part of the story during sentencing.  Judges have also refused use of videos because the documentaries do not give prosecutors the opportunity to question witnesses who are interviewed – an odd position given the fact that federal law allows convicted defendants to “speak or present any information to mitigate the sentence.”  Prosecutors and some judges clearly are put off by emotionally charged videos that seemingly justify criminal behavior, so the use of sentence-mitigating documentaries remains questionably legal.  Proliferation of sentence-mitigation videos in criminal trials suggest that the debate over their admissibility will ultimately be settled by higher appellate courts – potentially even the Supreme Court.

Missouri’s Flag Desecration Statute Struck Down in Federal Court

On Friday, the Eighth Circuit Court of Appeals reminded states and law enforcement that statutes which make illegal the desecration of the American flag are unconstitutional.  The Court’s decision in Snider v City of Cape Girardeau overturned Missouri’s law that reads:

Any person who purposefully and publicly mutilates, defaces, defiles, tramples upon or otherwise desecrates the national flag of the United States or the flag of the state of Missouri is guilty of the crime of flag desecration.

The Eighth Circuit pointed to law established by the Supreme Court in cases like Texas v Johnson (1989) and United States v Eichman (1990), and reminded Missouri that “the Supreme Court clearly established the First Amendment prohibits the prosecution of an individual for using the American flag to express opinion.”  Although many Americans find desecration of the flag to be offensive, the First Amendment is at its best when protecting speech that is widely unpopular, and flag burning is no exception.  Missouri’s law, however popular it may be, is unconstitutional, and the officers who enforced it should have been aware of the long-established legal position on flag desecration. 

Courthouse Dogs Used to Comfort Victims during Testimony

Marion County, Ohio made news this week by becoming the first family court in the nation to employ a dog. Camry, a 2-year-old golden retriever, has begun serving the Marion County Family Court as a witness comfort animal, helping children or other witnesses feel at ease in court and provide the type of testimony that will help judges and juries.  The animals, which are advocated by the national organization called Courthouse Dogs, can be used during civil and criminal trials as comfort to victims, particularly young ones, who are nervous about testifying.  Trained service dogs like Camry reduce stress and anxiety, allowing witnesses to testify.

The use of courthouse dogs is not without criticism, as a number of defense attorneys expressed concern that juries will be emotionally connected to a witness who makes use of a comfort animal.  Earlier this month, a Connecticut appeals court overturned a criminal conviction in part because prosecutors had not demonstrated that the victim needed assistance from a comfort dog, and the animal’s presence may have helped sway jurors.  The risk of the dogs engendering juror sympathy for alleged victims by highlighting the need for comfort is legitimate, and the legal system will need to address proper use of courthouse dogs if Camry and her companions are going to be widely accepted.


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