Set For Sentencing
Over a million people a year will face sentencing. For a client and their loved ones, it will be the most important day of their lives. Unlike at trial, there is virtually no limit to the kind of information a lawyer can credibly present to advocate for their client and demonstrate their humanity at sentencing. My passion is helping lawyers and clients craft their most compelling sentencing narratives. So, I was inspired to create this new podcast drawing on my 25+ years of criminal defense experience, my passion for storytelling, my expertise in producing mitigation videos, and my years spent consulting and developing compelling case narratives that get real results. In Set for Sentencing, I present cutting edge resources, world-class experts, and the straight scoop on our often dysfunctional system -- all in service to one goal -- to bring more more justice, more humanity, and more hope to the sentencing process. So, are you ready? Then let's get SET FOR SENTENCING!
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Maxwell's Silver Hammer (PART II): Transfer to Minimum Camp & Sentencing Post Mortem
08/04/2025
Maxwell's Silver Hammer (PART II): Transfer to Minimum Camp & Sentencing Post Mortem
In Part II of our deep dive into the Ghislaine Maxwell case, we begin with BOP Prison consultant, Walter Pavlo of prisonology.com to talk about her transfer to a minimum security camp. Then, we resume with Mark Allenbaugh of sentencingstats.com for one of our famous "sentencing post-mortems" to see what we can learn from Maxwell's sentencing proceeding. IN THIS EPISODE: Maxwell's unprecedented transfer to a minimum camp; Cheers for the government for understanding the power of narrative lies in the specifics; Cheers to the defense for creating a theme (Epstein’s empty chair) and telling her human (redemption) story; Cheers to the defense for zero mention of the Booker case and unnecessary boilerplate – we all know the guidelines are advisory; Cheers to outside the box advocacy where the defense lawyer personally addresses the victims of her own client’s crimes; Jeers for ignoring the stats and life expectancy arguments.
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Maxwell's Silver Hammer: Part I
07/28/2025
Maxwell's Silver Hammer: Part I
The saga of Jeffrey Epstein is ongoing and ever-present in the news. And there are powerful lessons to be learned. But the talking heads are mostly just spinning their wheels. So, if you're seeking some straight talk and inside scoop about all of it, you've come to the right place. This is a 2-part episode, as there is much ground to cover. The title, of course, is an homage to the great Beatles song. But in truth, Ms. Maxwell does indeed wield a hammer. The Trump folks want to use it to do damage control and she's looking to dig a tunnel out of the federal bureau of prisons. It remains to be seen whether Ghislaine Maxwell will be the extinguisher or the accelerant to this dumpster fire of a case. IN THIS EPISODE: Preamble: Ghislaine is talkin’ to the feds, but to what end? Thoughts on whether Epstein took his own life, through the lens of the suicide and mental health epidemic in jails and prisons; The non-prosecution plea agreement that Ghislaine Maxwell says requires dismissal of all her charges; What this really shows is the importance of well drafted plea agreements; Statistical analysis of the “trial penalty”; Fighting the dreaded appeal waiver in plea agreements; Pleading “straight up” when the government is offering you a terrible plea agreement. Stay tuned for PART II!
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Holding Court with Judge Nancy Gertner!
06/23/2025
Holding Court with Judge Nancy Gertner!
An independent judiciary is the cornerstone of a healthy democracy. But judges are under attack. Therefore, we must stand the post and protect judges from intimidation, unlawful prosecution, incredulous calls to impeach, or worse. And, when it comes to federal criminal sentencing, judicial independence is also crucial to the fair administration of justice. But judicial independence has been undermined for decades by adherence to the stringent, dehumanizing, US sentencing guidelines. Since 2005, these guidelines have been discretionary, yet many judges and lawyers continue to use them rigidly, leading to undesirable outcomes for clients. Therefore, attorneys need to be more creative and comprehensive in their sentencing approach, and help the judges understand that the guidelines are not a useful tool to determine a human being’s ultimate fate. This discussion features Nancy Gertner, former US District Court Judge and current Harvard Law Professor, who provides valuable insights on these topics. The first half of our discussion addresses the actions of the Trump administration and its efforts to influence the judiciary. For those interested solely in sentencing advocacy without political context, please proceed to the second half of the podcast, approximately at the 38:00 mark, for a master-class in sentencing advocacy from a former federal judge. This segment offers essential information for every defense lawyer and client facing sentencing. #JudicialIndependence, #SentencingJustice, or #DignityOverData IN THIS EPISODE: Milwaukee Judge Hannah Dugan’s arrest and prosecution for allegedly obstructing ICE; Assessing the merits of the charge against Judge Dugan; How ICE’s conduct presents its own form of obstruction of justice because it denies people their day in court and increases the chances of bringing harm and violence to innocents; The adminstration's effort to target judges for arrest, impeachment, or worse; Whether the administration can defy a judge's orders without consequence; A word on the plight of Kilmar Abrego-Garcia; The new pardon paradigm and how it may impact sentencing; Judge Gertner’s incredible sentencing advocacy advice, which includes the power of narrative, her take on sentencing mitigation films, irrational adherence to guidelines, lackluster attorney performance, the importance of allocution, telling the story of prison, and more! Judge Gertner’s take on using A/I in court (in the context of an A/I generated video of the deceased victim giving his sentencing statement from beyond the grave); The legacy of Justice Souter, who passed away the morning we recorded this podcast.
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For My Enemies, the Law: The Return of Kilmar Abrego-Garcia
06/09/2025
For My Enemies, the Law: The Return of Kilmar Abrego-Garcia
The Trump administration stated that Kilmar Abrego-Garcia would never return to US soil. But they just back-tracked and brought him back. Unfortunately he now faces federal prosecution under a new indictment for conspiracy and alien smuggling. The bigger problem is the govt. has gone to great lengths to wage an extra-judicial smear campaign against him, with a variety of other horrendous allegations. It remains to be seen whether this indictment represents a genuine pursuit of justice or is influenced by political motives. IN THIS EPISODE: The many red flags in the Indictment and Bail Motion; Whether there is substance, on the face of the pleadings to these allegations; The average process and sentences for cases of this kind (alien smuggling); The worst case sentencing scenario if convicted; The resignation of the criminal chief of the Middle District of Tennesse in the wake of this indictment and what that means; What a bail hearing can, and likely should, look like.
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Due Process Denied (PART II): Kilmar Abrego-Garcia and the "Great Replacement"
06/02/2025
Due Process Denied (PART II): Kilmar Abrego-Garcia and the "Great Replacement"
In understanding the current administration's draconian deportation policies, nothing makes sense except in the light of white supremacy. The underlying animating force of these policies, openly stated by Tom Homan during a white house press conference, is "the great replacement theory". Propagated by white nationalist, white supremacist fascists, operating in and out of government, it's a lie that has resulted in depraved acts of racist and antisemitic violence (See Southern Poverty Law Center link below). Sadly, the DHS, ICE, and other federal agencies have become something resembling the American gestapo, attempting to reduce the number of non-whites in this country, to retain power in perpetuity. In furtherance of these policies, they are arresting judges, conducting warrantless searches of homes and businesses, and even raiding US congressional offices and detaining staffers, again without warrants. They are threatening prison for even speaking out against these actions. In Part 2 of our collaboration with the Truth Be Found Podcast, we talk about the terrifying erosion of our civil rights and the racist rhetoric underpinning the worst actions of our government. IN THIS EPISODE: Justin Yentes describes the prison where Mr. Abrego-Garcia is held; The history of El Salvador President Nayib Bukele’s total erosion of Due Process in his own country; The real risk of harm and even death Mr. Abrego-Garcia faces in this facility; Expert consultant, former gang member describes the BOP’s approach to “gang management”; Practical tips for defense lawyers dealing with gang designation in a Pre-Sentence report; Tom Homan espouses racist, white-nationalist, “great replacement theory” to justify his draconian immigration policies. LINKS: Check out the incredible ! Southern Poverty Law Center:
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Due Process Denied: Kilmar Abrego-Garcia (PART ONE)
05/26/2025
Due Process Denied: Kilmar Abrego-Garcia (PART ONE)
America might have moved on from Kilmar Abrego-Garcia, but we have not. So, ask yourself: What happens when the U.S. government indefinitely sentences someone to a foreign prison without any due process and no one stops them? In this episode (part 1 of 2), I appear on Justin Yentes's podcast "Truth Be Found" to discuss the implications of this case. Justin is an amazing criminal investigator, whom I've worked with in the past, especially on capital matters. We were also joined by former gang member, now consultant, Angel Garcia, to pull back the curtain and talk about about aspects of the case never before discussed. Please watch, share, and keep speaking truth to power. This is not right. It won't stop with him. The adminstration is testing us to see how much the American people will tolerate. Make your voice heard. This is not who we are. IN THIS EPISODE: What due process really means and who it protects; The role of the courts in checking executive power; How cases like this create dangerous legal precedents for U.S. citizens; Sentencing implications for a gang designation, and how to fight it; Since this is a "cross-promotion" the only links here are for Justin, his podcast, and the incredible services he offers. Truth Be Found on Instagram: Connect with Truth Be Found on Facebook: |fr Connect with Truth Be Found on TikTok: Justin's Website:
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George Santos Sentencing Post-Mortem
04/28/2025
George Santos Sentencing Post-Mortem
On Friday, April 25, George Santos learned his fate, at his fraud sentencing in federal court. He had two years since his indictment to walk the walk, demonstrate extreme remorse and acceptance, and take meaningful steps to address the problems that got him here and convince a judge he wouldn’t make the same mistakes again. But the government painted him as an unrepentant fraudster who was bound to reoffend, and the judge agreed, giving him a sentence at the very high-end of the guidelines. Therefore, Mark Allenbaugh and I went live on YouTube to conduct one of our world-famous “sentencing post-mortems” to break down the good, the bad and the ugly of the George Santos sentencing. IN THIS EPISODE: A "cameo" introduction, and ringing endorsement from George Santos himself; A word about the FBI’s arrest of Milwaukee Judge Hanna Dugan; The perfect tequila pairing for this podcast: Santo Tequila; The accuracy of our predictions from our first Santos Podcast two years ago; What we can learn as defense lawyers (and clients) about the George Santos sentencing. LINKS: Our first take on George Santos indictment from two years ago: Hannah Dugan Federal Criminal Complaint: The arrest of a judge is yet another signal of our rapid decent into fascism. Attacking the judiciary is a standard play in the authoritarian handbook. Pay attention.
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Seismic Shift: Big Changes to the Sentencing Guidelines & the Country
04/21/2025
Seismic Shift: Big Changes to the Sentencing Guidelines & the Country
Although we often complain about the sentencing guidelines, this week, I find myself thankful that we still live in a country that has courts and due process, in the federal criminal courts. At least for now. So today, we celebrate the death of guideline departures, lament the death of due process in immigration, and worry for the future of this democracy. That's why we start off talking about the plight of Kilmar Garcia-Abrego, a person lawfully in this country who was abducted by brownshirt immigration thugs and stolen away in the night to a concentration camp in El Salvador. No notice. No hearing. No due process. No contact with a lawyer or loved ones. No prospect for release – ever. That’s why we start off talking about the plight of Kilmar Garcia-Abrego, a person lawfulfully in this country who was abucted by brownshirt immigration thugs and stolen away in the night to a concentration camp in El Salvador. No notice. No hearing. No due process. No contact with a lawyer or loved ones. No prospect for release – ever. This is who we are now. Pay attention. IN THIS EPISODE: Kilmar Garcia Abrego: authoritarianism is here, and we are in a full constitutional crisis. If they can do this to him, they can do it to ANYBODY… and they will. Lost Lore tequila! New changes to the Supervised Release guideline; A warning – if you are successful in arguing against supervised release, you could impact your client’s ability to earn early release from prison; The goal of S/R, in no incertain terms, is REHABILITATION! But courts are using it as punishment, and routinely imposing prison terms for said violations. Therefore, the new guideline amendments make clear that this is not, by default, the appropriate result! The death of “upward departures” and simplification of the “three step process”; The difference between guideline “departures” and “adjustments”; The vindication of the need to telling our clients’ life stories; Things in the “goddamn Sentencing Reform Act that were directed to the Commission 40 years ago to take into consideration when it promulgated the fucking guidelines, that it still has not done.” (Mark’s colorful language), the biggest one being the sad state of affairs at the Federal Bureau of Prisons. Talk of moving BOP to DHS and the future banishment to concentration camps of US Citizens. LINKS: "Reader-friendly" guidelines amendments from Sentencing Commission: Timothy Synder's On Tyranny: 20 lessons from the 20th century: Last episode we talked about the lesson of language (domestic terrorism). Today we talk about not “obeying in advance” when an authoritarian begins to test the limits of his power. If we let what is happening to Mr. Abrego Garcia and those like him, we are lost. Here's a great video of John Lithgow reciting all 20 lessons. Learn them. Take action. There's a new "open letter" circulating on Facebook and beyond, purportedly written by Liz Cheney. She's not the author. But the letter is right on. It's a blueprint for resistance. Take a look. Mark Allenbaugh Law Review Article: Sentencing in Chaos: How Statistics Can Harmonize the “Discordant Symphony”. To Download a Copy of Mark's article, please visit the Set For Sentencing main page for this episode:
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Reign of Terror: Tesla, Luigi Mangione, & Beyond
04/07/2025
Reign of Terror: Tesla, Luigi Mangione, & Beyond
I'm back. I've been in hibernation for the last couple of months, basically paralyzed by what can only be described as a rapid descent into authoritarian hell. In his seminal work, "On Tyranny", Timothy Snyder warns: "Listen for dangerous words. Be alert to the use of the words extremism and terrorism. Be alive to the fatal notions of emergency and exception. Be angry about the treacherous use of patriotic vocabulary." So, today's podcast is brought to you by the letter "T" for "terrorism". The government is going to great lengths to brand anyone who dares question the authority of the POWERS THAT BE, a domestic terrorist. Today we talk about three cases where the terror label is applied and the potential or actual consequences, with the incomparable Mark Allenbaugh. IN THIS EPISODE: -Breaking down the "Tesla" indictment against Frederick Cooper and the government's toothless threat of "20 years, no negotations"; -Delving into the terror element of the Luigi Mangione case, where AG Bondi just announced the govt. is seeking death because the crime was "politically motivated"; -A massive injustice in North Dakota where the government and judge abused a domestic terrorism provision in the guidelines as a show of cruelty against a 50 year old autistic man, sentencing him to 25 years in prison; CAMERON SMITH - A CRUEL & VENGEFUL OUTCOME IN NORTH DAKOTA: If you want to know more about Cameron Smith's Case, here is an article in the New York Times. If you'd like to support his defense in any way, reach out to me (). His appeal is pending, and we will not abandon this fight. ON TYRANNY: Do yourself a favor and grab this book. If you want the summary of all of his lessons, here you go: ON A LIGHTER NOTE: I'm back on the tequila train. If you've listened to previous episodes, many involve a tequila tie-in and recommendation for a great sip. It helps the medicine (of authoritarianism) go down. Today I had my choice of two: Tequila Chamucos (i.e. "Diablo Blanco") and Mijenta Blanco Maestra Secltion No. 1 Tequila. Mijenta was the clear winner both in flavor and in theme. Mijenta, in Spanish is derived from "Mi Gente" which means "My People." This particular expression was made from agave grown from seeds, not clones. And if you take away nothing from the events of the day is that this great American experiment of ours is meant to be "by the people and for the people" and at the end of the day, the people have the power. It's time to fight, by all peaceful means necessary, the rapid slide into authoritarian rule. We have to plant the seeds of resistance and let them grow, unafraid, and undaunted.
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Anchor's Aweigh: New Policies and New Proposed Guidelines Find Us Unmoored in 2025
02/03/2025
Anchor's Aweigh: New Policies and New Proposed Guidelines Find Us Unmoored in 2025
I call this episode “Anchor’s Aweigh” for two reasons. First, there is a potential seismic shift in federal sentencing coming, which would go far to eliminate what we call the dreaded “anchoring effect” of the draconian and deeply dysfunctional sentencing guidelines. If this passes, it will likely be the biggest change in guideline sentencing since Booker was decided twenty years ago. The other reason for the title is because the achor’s up on the new ship of state, and anyone paying attention should feel deeply unmoored. The vessel is powering through dark and dangerous waters, with seemingly nothing other than doom on the horizon, particularly when it comes to our criminal system. If you are not a guidelines nerd, and you’d like to hear our take on recent pardons and relevant executive orders from the new administration, then fast forward to 24:30. Lastly, please excuse the bad quality of the recording. I had the pleasure of being in the same physical space ("IRL" as the kids call it) with Mark Allenbaugh, which is a very rare occurrence. So we hunkered down in a booth at Jack’s Steakhouse and Seafood in Bismark, North Dakota (https://jackssteakhouse.net), and recorded this episode. The "live" element without my good sound stuff explains why the recording is a little wonky. IN THIS EPISODE: Proposed guideline amendments eliminating departures and limiting supervised release; Thoughts on the sweeping pardons issued by both the Biden and Trump administration; Thoughts on some of the new executive orders that will significantly impact federal criminal law. LINKS: Link to public comment on guideline page: Link to proposed amendments: Past Set For Sentencing Episode on Pardons – This episode (105) dropped at the beginning of January, before Pres. Biden cleared federal death row and issued sweeping “pre-emptive” pardons for his family and others:
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The Truth About Restitution in Federal Criminal Cases with Ashley Adams, Esq.
01/20/2025
The Truth About Restitution in Federal Criminal Cases with Ashley Adams, Esq.
Restitution is often imposed to compensate crime victims for their losses. Done correctly, it can help victims recover and allow offenders to move on after serving their sentence. However, defense attorneys sometimes overlook restitution issues, resulting in burdensome payment orders. These can extend prison time and hinder reintegration after release, making restitution effectively a lifelong punishment. So, in Episode 106 of Set for Sentencing, we welcome back Ashley Adams, a former united states attorney and incredible white collar criminal defense attorney in Phoenix, AZ. Together, we take a deep dive into the wonderful world of restitution. IN THIS EPISODE: Exemptions under state law don’t necessarily apply with the feds; The “20 year rule” for restitution orders; Negotiating restitution issues in the plea negotiations; Whether and how a payment schedule can be modified; What happens when you catch the “FLU”, or rather the “FLU” catches you (i.e. what does debt collection look like with the Financial Litigation Unit of the DOJ; The ins and outs of the “Inmate Financial Responsibility Program” Navigating probation or supervised release with a restitution order; Vulnerability of a spouse’s assets in a “community property” state; Charging orders in partnerships; The government going after kids’ college funds; Whether and how the government can go after foreign assets. LINKS: Ashley's first appearance on Set for Sentencing: Episode 7: Stories from the Frontlines of Justice -- From Prosecution to Defense: My MUSIC! Ashley and I had a little chat about music at the end, and so I couldn't resist the opportunity to plug my new album, ONE GOOD THING. It's available on all streaming services, including Youtube. I also just released the record on vinyl. Hit me up if you want a copy. Otherwise, here's the YouTube page for the record:
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The Truth About the Presidential Pardon Power With Margaret Love & Mark Allenbaugh
01/06/2025
The Truth About the Presidential Pardon Power With Margaret Love & Mark Allenbaugh
It’s January 2025, and we’re in the final days of the Biden administration. He has had a busy last month or so issuing pardons and commutations. This unfettered power is rightly scrutinized but often misunderstood. The bigger problem is, the whole damn process appears to be broken. And although Pres. Biden has done some good things with his power, it still represents a small fraction of those languishing in prison who deserve action. Margeret Love was the head of the US Pardon office from 1990-97, she had a front row seat to the pardon process, and continues to represent clients seeking pardons. Mark Allenbaugh needs no introduction. His stats help us put many of these decisions into the proper perspective. Both of them join us on the first episode of the new year to lend their unique perspective to this very timely issue! IN THIS EPISODE The Hunter Biden Pardon The 1500 commutations of those who BOP had released to home confinement during Covid; The difference between pardons and clemency; When did things really start to go off the rails in the US Pardon office? (spoiler alert, it was the Clinton years); Is it true that when you accept a pardon it is an admission of guilt? Trumps promise to pardon the January 6th defendants; Can a president pardon himself? Why the pardon essentially makes the president the "DOJ’s Janitor"; How the pardon power should be managed going forward; Michael Conahan commutation (the judge embroiled in “cash for kids” scandal); Rita Crundwell (Dixon, IL Comptroller fraud) commutation. LINKS: For more info on the Rita Crundwell Case, there's a great documentary produced by Prof. Kelly Richmond Pope called "All the Queens Horses" currently available on Amazon Prime (). She also writes about it in her book, "Fool Me Once" I had Dr. Pope on the podcast to talk about this case a while back As for the "Kids for Cash" judge who just had his sentence commuted, here's his wiki page: Here's our two previous episodes on Hunter Biden. The first talks in detail about the political nature of his prosecution and his original plea bargain falling apart and the next happened live after he pled guilty in California: Ep. 64: Too Cute by Half: Why Hunter's Plea Went South: Ep. 92: Livestream Bonus: Hunter Biden Edition: (make sure you forward through the first two minutes of tech disaster) And we talk in depth about the concept of "lawfare".
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2024 United States Sentencing Guideline Amendments: A Front Row Seat to the Kabuki Theatre
11/25/2024
2024 United States Sentencing Guideline Amendments: A Front Row Seat to the Kabuki Theatre
On November 1, several amendments to the United States Sentencing Guidelines took effect. Some of these changes are significant, offering advantages to the defense, while others are less beneficial. However, ultimately, this process amounts to nothing more than "Kabuki Theatre," meaning the tortured guideline applications become merely performative, because 18 U.S.C. § 3553, enables discerning judges to overlook the sentencing recommendations provided by the guidelines. Thus, it is crucial to be informed about these amendments to argue effectively whether and how they should be considered in the final analysis. IN THIS EPISODE: Some eye-popping facts and stats after forty years of guideline sentencing; Relevant conduct amendment to now exclude acquitted conduct (but it comes with a big but…) Possibility that new litigation may void the Kisor fix because of commission overreach by overriding congress and/or resolving circuit splits; The “Kisor” work-around to fix the intended loss issue under the fraud guideline; The implication and larger application of the Kisor workaround – i.e., support for the argument that for other guidelines, if it’s in the commentary, it doesn’t count; Clarification of the new Zero Point Offender provisions (ZPO) to deny eligibility for anyone who gets an upward role adjustment; And, perhaps the one bright spot, adding a potential downward departure for “youthful offenders” (mid-20’s or less); Practice tips for navigating the new guidelines provisions; Information on reaching out to the commission for future proposed guideline amendments. LINKS: United States Sentencing Guidelines online: My new Album! The guidelines are 40 years old, which is also when I picked up my first guitar. So, yes, I had to give a shameless plug for my first rock record, "One Good Thing", which is available everywhere you stream your music! Music is another creative outlet that keeps me sane and quiets my brain: FAREWELL 2024!!!! This will be the last new episode of 2024. As always, I wanted to thank you for listening, constributing, liking, subscribing and spreading the word about Set for Sentencing. We have been going strong for over two years now, and the show was recently ranked #7 among the 35 “must-follow” Criminal Defense podcasts in 2024, via Feedspot (). So, per a tradition I started in 2023, I’ll be taking the rest of the year off! The remaining episodes of the year will be re-broadcasts of either other podcasts I have appeared on or some earlier episodes I adore and may have been overlooked when the audience was smaller. 2025 will be a wild ride, and we’ll be right here with you, buckled up and ready to roll. Until then, I’m grateful for all of it, and I hope you find some peace, light and love as the year winds down.
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BOP Programming With Dr. Alix McLearen
11/11/2024
BOP Programming With Dr. Alix McLearen
We’ve spent a lot of time running down the BOP, and not without good cause, BUT we don’t give as much attention as we should to the positive things happening inside those walls. Lawyers need to learn about and advocate for beneficial programming placements for clients, especially those with special needs. Therefore, helping us get set for sentencing is Dr. Alix McLearen, former acting director of the BOP and psychologist who is responsible for the creation of some really important programs, including the Skills program for clients on the Autism spectrum, IN THIS EPISODE: The Skills Program (for those on Autism Spectrum or have other special needs); The F.I.T. program (Female Integrated Treatment); Directory of First Step Act approved programs; Advice for lawyers to improve their advocacy at sentencing when it comes to prison; Dr. Mclearan's services LINKS: Contact Dr. Alix McLearen at: OTHER BOP PODCAST EPISODES: Please visit or YouTube ( for several other episodes on the functioning (or more likely dysfunctioning) of the federal prison system, including, Ep. 99 (BOP Horror Stories); Ep. 83 (BOP Stands for Back Off Punishment!); Ep. 70 (BOP Stands for Backwards on Purpose); Ep. 67 (BOP Stands for Big Ol' Problems); Ep. 44 (3 Years of Hell: Covid & the BOP); Ep. 3 (Telling the Story of Prison at Sentencing). Directory of Programming at BOP: Federal Prison Guidebook (Alan Ellis):
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The Future of Federal Fraud with Mark Allenbaugh
11/07/2024
The Future of Federal Fraud with Mark Allenbaugh
We spend so much time and engergy trying to develop our knowledge and skill to better represent our clients. And keeping abreast of all major developments in the law is paramount to a successful legal practice. But there’s one thing every lawyer needs, and it does not exist – a crystal ball. If we were clairvoyant we could anticipate favorable changes in the law that we could use to our advantage right now, even before the ruling happens. The bigger problem, especially in federal court, is that if we enter a plea agreement (which is almost every case), we almost always waive our right to challenge changes in the law that would even prove a client is innocent of the crime to which he pled! Therefore, in an effort to aid in your clairvoyant powers on the subject of federal FRAUD cases, we give you Thompson v. United States, a “sleeper case” headed for the Supreme Court. Reading the tea leaves of prior recent court decisions on fraud crimes, the muck at the bottom of the mug tells us that if the Court continues on their quest to narrow the scope of federal fraud prosecutions, could result in a seismic shift in many cases where the fraud is predicated on the accused making “false statements. “ IN THIS EPISODE: Summary of the Thompson case; The distinction between “false statements” versus “misleading statements”; The need to make a record before, during, and after a plea; Consider negotiating a conditional plea that preserves your right to appeal should the Thompson case go our way; How long it may take to get a ruling from the court on Thompson; Plea implications of Thompson; Sentencing implications of Thompson (relevant or acquitted conduct). FREE DOWNLOAD: Visit the shownotes (link below) for this episode for a free download of the article we discussed in this episode laying out the Thompson case and its potential impact on the future of federal fraud! AFTERTHOUGHT: It occurred to me when editing this podcast a very important practice tip now that there is this great body of S.Ct. law limiting fraud and cert having been granted on Thompson: We should strongly consider asking for a “Bill of Particulars” in every case, to make the government state, with specificity what the alleged fraudulent conduct was, as if it was an omission or a misleading statement, rather than an outright LIE, then you may have a fighting chance at defeating the charge, and/or mitigating your sentence. LINKS: Mark Allenbaugh: Check back here soon for an updated link to Mark's Law 360 article on this topic!
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The Why of the Where: Mitigation Geo-Narratives with Dr. Julie Urbanik
10/14/2024
The Why of the Where: Mitigation Geo-Narratives with Dr. Julie Urbanik
Where we are born, how many times we were forced to relocate, and the kinds of things happening, or not happening, in our communities, our schools and other institutions in those locations are all important to give context to a client's life and choices. But how do we tell those stories at sentencing? Thankfully, there's an amazing expert that can do it with compassion, grace and an unparralled skill set: Social Geogrpaher, Dr. Julie Urbanik! Her outside the box approach to mitigation is something that should be on every defense attorney's radar. IN THIS EPISODE: The connection between geography and criminal defense; Explanation of “mitigation geonarratives”; Explanation of “body maps”; Explanation of “memory walks”; Other uses of video to tell the mitigation story; LINKS: Julie’s website is Email contact: Here is the link to Dr. Urbanik's peer-reviewed publication on the topics we discussed, including several examples of her work: Lastly, we mentioned a couple of other podcasts with incredible legal professionals that can attest to Dr. Urbanik's great work: Episode 58 - Life in the Shadow of Death with Atty Cyndy Short: Episode 28: The Heart & the Head: Holistic Sentencing with Mitigaiton Specialist Victoria Rusk
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Mitigation Films: Harnessing the Power of Visual Narrative to Humanize our Clients
09/30/2024
Mitigation Films: Harnessing the Power of Visual Narrative to Humanize our Clients
I can’t think of a better topic for our 100th episode of Set For Sentencing – the topic that is so near and dear to my heart – MITIGATION FILMMAKING! Mitigation films are arguably the most powerful and persuasive weapon in our advocacy arsenal. They offer an unparalleled way to humanize a client and show the truth of their journey, rather than simply telling it. However, there’s currently a significant gap in learning and leadership within the world of mitigation filmmaking. With no established standards and a lack of a supportive community, many well-intentioned individuals—whether new to the legal field or even the supervising lawyers—often lack the comprehensive skill set needed to produce these films effectively. This gap can be detrimental to both the client and the broader cause. That’s why a group of dedicated, highly experienced professionals is coming together to form REEL DEFENSE: A MITIGATION FILM COLLECTIVE! This non-profit entity is committed to educating, building community, and producing these essential films for those who might not have the resources to do so themselves. Visit www.reeldefense.org and consider making a tax-deductible donation to support this worthy endeavor! IN THIS EPISODE: What is a mitigation film and why is it such a powerful persuasive tool of advocacy? Announcing a new, non-profit endeavor – the mitigation film collective! Examples of great results gained through use of video advocacy Why your judges will love these (even the ones that say they hate ‘em); Why the claim that these are just for “rich people” is a false narrative; How you can support the newly formed, non-profit mitigation film collective! Mitigation movies and the Simpsons!? Bad Actors in the Mitigation film arena Upcoming training opportunities with the collective LINKS: To make a tax-deductible donation or learn more about the Collective, please visit: Sample sentencing videos: If you've never seen one, here is a sample. This was done for the first defendant to plead guilty and be sentenced in the plot to kidnap the Gov. of Michigan. He received, by far, the most favorable sentence of any of the individuals charged, and the video played a big part in that: New Book on Holistic Defense: Early in the episode, I told you about Katie Carter's new book, Holistic Defense: a Practice. It's a must read for anyone doing criminal defense work. You can buy it here: EXTRA: The Saga of Lance Oppenheim: One reason for the colletive is to guard against “bad actors” who either enter the space without the proper perspective to do the work, or who simply seek to exploit the medium for their own gain. We talked specifically, in this context, about a filmmaker named Lance Oppenheim. While we spared the audience much of the gory details, suffice it to say, Lance manipulated his way into the defense community and behaved badly in order to further his own ambition. And, while we're here to uplift and inspire, sometimes people just need a reality check. Back around 2014, Lance was a Harvard undergrad with big ambition. He took advantage of legal professionals (myself included) that thought they were helping him with a school project, and then preyed on our vulnerable clients by using portions of their mitigation films without permission. He neglected to mention that the little supposed “student film” he was making was actually going to be submitted to the New York Times for the world to see. The story of Lance and his careless attitude about what we do and who we do it for, is a cautionary tale of why only those who are trustworthy and hold the mission of providing quality, holistic, representation sacred can be allowed into the inner circle of mitigation filmmakers.
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The BOP Horror Show & What We Can Do About It
09/16/2024
The BOP Horror Show & What We Can Do About It
It's not even October yet, but this episode feels tailor made for Halloween. It's no secret that the BOP is deeply dysfunctional, dangerous, and dehumanizing. And the stories of deprivation and death inside the walls of the BOP abound. But lawyers are not telling these stories enough at sentencing, and as a result, Judges often have no idea of the real scope of punishment they are inflicting. Therefore, it's important to share these true stories, and then act on them- in every case, and in every way you can. IN THIS EPISODE: Horror stories of death and deprivation in the BOP; The BOP’s form letter parlor trick; The danger of going to an FMC; The danger of being in transit; How inmates are threatening suicide to get adequate medical treatment; Stories of hope – how lawyers and their experts are slowly but surely achieving results by telling the story of prison; A list of action items for telling the story of, and hopefully FIXING, the BOP. LINKS: OIG Compendium of BOP issues: Expert Prison Consultants (Maureen Baird & Jan Perdue): Walter Pavlo: 60 minutes piece with Collette Peters: Furman Opinion (U.S. v. Chavez): ————— Other BOP PODCAST EPISODES: Prison Consultants and the Myth of the Fixer: BOP Stands for Big Ol’ Problems: Exposing Dysfunction & Danger at the Federal Bureau of Prisons BOP Stands for “Backwards On Purpose” With Current BOP inmate Bilal Kahn: Telling the story of Prison at Sentencing with Maureen Baird: --------------------------- BILAL KHAN BOOK LINKS: SURVIVING PRETRIAL, by BILAL KHAN, ON AMAZON: THE 2255 MOTION HANDBOOK: A POST-CONVICTION RELIEF GUIDE FOR FEDERAL INMATES: ----------------------- BOP IN THE NEWS: 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: ----------------------------- LIVE CLE SEMINAR WITH DOUG PASSON AND PATRICK BARONE! Lastly, here’s a link to register for our psychodrama and storytelling at sentencing seminar (social atom) CLE in Michigan, in October, here’s the link and don’t forget the podcast discount code : S4S10
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Federal Pre-Trial Diversion With Jon May
09/02/2024
Federal Pre-Trial Diversion With Jon May
Deferred Prosecution Agreements (DPAs) can help avoid prison and even a keep a person's record felony-free. And, the Biden DOJ has encouraged it's regional US Attorney offices to devise their own policies for DPAs and to be more liberal with their application. But, local federal prosecutors seem to be ignoring their boss's mandate. They're reluctant to make new policies, let alone to actually offer diversion. Therefore, we need to be more aggressive about adovocating for DPAs and unearthing local policies. To that end, we welcome back attorney and author Jon May, who has been at the forefront of this fight. IN THIS EPISODE: Becoming aware of federal diversion; Advocating for diversion policies nationwide; Suggestions on how to position your case for diversion. LINKS: Episode 38: Who Says You Can't: Strategies for Creative Lawyering with Jon May Jon’s Latest Book: Who Says You Can’t? Strategies and Tactics For Becoming a More Creative Criminal Defense Lawyer: Attorney General's 2022 Memo on DPAS: Jon May's Website: Jon's Substack:
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On Deaf Ears: When Sentencing Goes Wrong
08/19/2024
On Deaf Ears: When Sentencing Goes Wrong
It’s a gloomy night in Oklahoma City. I’m holed up in a hotel working on a capital case. But I’m in a dark place. Last week I saw a terrible injustice occur in a matter in which I was involved as a consultant. The lawyers did a fantastic job of making their case for a non-custodial sentence, but all of their arguments and impassioned pleas fell on deaf ears. We spend a lot of time on this podcast talking about our triumphs. But anyone who does this work knows that epic losses are part of the deal. And they hurt. So let’s talk about it. This is a departure from my usual episode. I’ve always had a guest. Today, it’s just me. Putting it all out there. It was cathartic. Probably indulgent. Hopefully there’s something in there you can take away. IN THIS EPISODE: Autism; Avoiding the bus bench lawyer; The truth about flat fees; Working with a competent legal team; Telling the story of prison; The need to walk the walk when it comes to remorse and acceptance – do something to right the wrong; The criminal justice system is a (rigged) lottery. LINKS: First Autism Episode with Jamie and Toni Sparks; Defending Autism With Mark Mahoney (Part One): Defending Autism With Mark Mahoney (Part Two): Bilal Khan Episode: Is My Lawyer Any Good? Bilal Khan Book (Surviving PreTrial) On Deaf Ears – this is the part of the soundtrack of my misery this week. Music is the salve that heals any wound. I adore this song (and album) from “Joseph the Spouse”, which is fronted by Chris Sullivan, an incredible actor you’ve seen as Toby in “This is Us” and Tom Cleary in “The Knick”. Anyway, it’s the bomb. Take a listen.
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Psychodrama at Sentencing: (PART TWO)
08/05/2024
Psychodrama at Sentencing: (PART TWO)
Psychodrama has been used by trial lawyers for decades. But it hasn't been effectively deployed for use at SENTENCING.... until now. While psychodrama action therapy requires a trained professional to implement, there good news is there are psychodrama-adjacent techniques that can help any lawyer dig for, develop, and deliver a powerful and persuasive sentencing presentation! In this episode, Patrick Barone, a 30+ year criminal defense attorney and certified trainer, educator and practitioner of psychodrama introduces us to two such "psychodramatic action techniques" - the social atom and psychodramatic letter-writing. This is a TWO-PART EPISODE!. The timing of its release was deliberate, as Barone and Passon just co-authored an article for "The Champion", the premiere criminal defense publication of the National Association of Criminal Defense Lawyers (NACDL). The issue will soon be in NACDL member's mailboxes. For those without a subscription, we will soon make the article available (for free) for download at . Lastly, if anyone is interested in registering for our first CLE in Michigan, in October, here's the link and don't forget the podcast discount code : S4S10 IN THIS EPISODE: - Doug's Social Atom Psychodramatic Letter Writing Our upcoming live CLE presentation DOWNLOADS: FOR THE FOLLOWING DOWNLOADS, PLEASE VISIT THE SHOWNOTES AT THE SET FOR SENTENCING WEBSITE: www.setforsentencing.com/psychosentencing SOCIAL ATOM INSTRUCTIONS AND SAMPLE & NACDL CHAMPION ARTICLE: The Story of a Life: Uncovering Deep Levels of Sentence Mitigation Using Psychodramatic Action Techniques by Patrick T. Barone and Doug Passon: OTHER LINKS: Original Psychodrama Podcast (Psychodrama 101) With Patrick Barone: https://setforsentencing.com/podcast/sentencing-psychodrama/ Barone Defense Website: https://www.baronedefensefirm.com/patrick-t-barone.html Michigan Psychodrama Center (Patrick Barone and Dr. Elizabeth Corby): https://www.michiganpsychodramacenter.com/
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Psychodrama at Sentencing (PART ONE)
07/22/2024
Psychodrama at Sentencing (PART ONE)
Psychodrama has been used by trial lawyers for decades. But it hasn't been effectively deployed for use at SENTENCING.... until now. While psychodrama action therapy requires a trained professional to implement, there good news is there are psychodrama-adjacent techniques that can help any lawyer dig for, develop, and deliver a powerful and persuasive sentencing presentation! In this episode, Patrick Barone, a 30+ year criminal defense attorney and certified trainer, educator and practitioner of psychodrama introduces us to two such "psychodramatic action techniques" - the social atom and psychodramatic letter-writing. This is a TWO-PART EPISODE!. The timing of its release was deliberate, as Barone and Passon just co-authored an article for "The Champion", the premiere criminal defense publication of the National Association of Criminal Defense Lawyers (NACDL). The issue will soon be in NACDL member's mailboxes. For those without a subscription, we will soon make the article available (for free) for download at . Lastly, if anyone is interested in registering for our first CLE in Michigan, in October, here's the link and don't forget the podcast discount code : S4S10 IN THIS EPISODE: - A brief overview of psychodrama 30:00: The Social Atom DOWNLOADS: FOR THE FOLLOWING DOWNLOADS, PLEASE VISIT THE SHOWNOTES AT THE SET FOR SENTENCING WEBSITE: www.setforsentencing.com/psychosentencing SOCIAL ATOM INSTRUCTIONS AND SAMPLE & NACDL CHAMPION ARTICLE: The Story of a Life: Uncovering Deep Levels of Sentence Mitigation Using Psychodramatic Action Techniques by Patrick T. Barone and Doug Passon: OTHER LINKS: Original Psychodrama Podcast (Psychodrama 101) With Patrick Barone: https://setforsentencing.com/podcast/sentencing-psychodrama/ Barone Defense Website: https://www.baronedefensefirm.com/patrick-t-barone.html Michigan Psychodrama Center (Patrick Barone and Dr. Elizabeth Corby): https://www.michiganpsychodramacenter.com/
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Outside the Box Defense with Investigator Justin Yentes
07/08/2024
Outside the Box Defense with Investigator Justin Yentes
A good investigator can be essential to winning cases at trial or sentencing. They bring a fresh perspective and outside-the-box techniques that help lawyers better communicate the truth of their sentencing story. This week, we’re thrilled to have Justin Yentes, one of the best investigators in the business, on our podcast! Justin’s wealth of experience in the criminal and civil world, including death penalty cases, makes this episode a must-listen. During our time together, Justin shares super practical case advice, captivating war stories, and even dives into some tequila talk. If you haven’t already, check out his new podcast, ‘Truth Be Found,’ available on all major platforms. Also, because we talked about cutting edge video investigatory techniques, and showed several video samples, this may be a good episode to watch on YouTube rather than just audio. In any event, wherever you go, please like, subscribe and leave a review! IN THIS EPISODE: Using Drones, Go Pros, VR, and other cutting edge investigation tools; A journey into gang-ridden El Salvador; immersive storytelling to bridge the gap of cultural understanding; Tips for working with investigators; Pimps up, hos down; Tequila! LINKS: EQUIPMENT RENTAL! Justin and I talked about the option of RENTING video equipment rather than buying, which is always my go to option. My favorite place to rent top quality equipment, for very reasonable prices and easy shipping is Lensrentals.com. Here is my "refer a friend link". If you use it, you get 25 bucks off your first rental! #LegalInsights #InvestigativeTechniques #JusticeMatters #CriminalLaw #SentencingStories #PodcastRecommendation
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The First Step Act (with Walt Pavlo)
06/24/2024
The First Step Act (with Walt Pavlo)
The FSA is meant to give non-violent offenders a chance to significantly reduce their term of incarceration through programming and good conduct. But, the BOP is proving to be unwilling or unable to properly implement the law. Helping us get set for sentencing this week is Walt Pavlo, founder of prisonology.com and frequent contributor to BOP issues for Forbes online. Walt and I discuss all the issues with FSA (and Second Chance Act) implentation, as well as offer many useful practice pointers. LINKS
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Bonus YouTube Livestream: Hunter Biden Conviction - What To Expect at Sentencing and is Lawfare Really a Thing?
06/15/2024
Bonus YouTube Livestream: Hunter Biden Conviction - What To Expect at Sentencing and is Lawfare Really a Thing?
We went live the day after Hunter Biden was convicted in Federal Court on three firearms charges. Not only do we take a deep dive into Hunter Biden's sentencing issues, we also peel back the layers of this new-ish word permeating the lexicon of the right/Trump supporters -- LAWFARE. Lawfare refers to the supposed "weaponization" of the criminal justice system. The term has been deployed on right wing media and social media, in refernce to the many Trump civil and criminal cases, and all of the folks in the Trump orbit who now find them selves having to defend themselves in courts across the land. Is "Lawfare" really a thing? If so, what does that term really mean? And, if it applies, should it not apply to the Hunter Biden prosecution? IN THIS EPISODE: How prevalent are these specific federal gun charges? What are the guidelines and sentencing stats for these offenses of conviction? What other sentencing arguments can/will Mr. Biden present? How will these convictions and sentencing impact his next (tax) prosecution? Sentencing predictions? Is Lawfare real?
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Marilyn Mosby Sentencing Post-Mortem
06/10/2024
Marilyn Mosby Sentencing Post-Mortem
Marilyn Mosby, Baltimore’s former top prosecutor, made headlines for her bold actions during her tenure. She fearlessly took on the Baltimore police, charging those involved in Freddie Gray’s death, and advocated controversial positions, including refusing to prosecute low-level drug offenders. However, her own legal journey took an unexpected turn. Accused of federal fraud violations, she faced trial and ultimately received a non-custodial sentence. Was this an outlier? Did she receive special treatment? Join Doug Passon and Mark Allenbaugh as we delve into these questions and more on this week’s episode of Set for Sentencing! IN THIS EPISODE: The backstory of the Marilyn Mosby Prosecution; Digging into the sentencing data and the facts to determine whether her non-custodial sentence was warranted; Critique of the sentencing memoranda (spoiler alert, the defense memo was F’ing fantastic); In praise of the Federal Public Defender; Gender disparity at sentencing; Walking the tightrope of using your kids as mitigation; Why lawyers should be less scared about going to trial; Remember that the guidelines actually suggest NON-CUSTODIAL sentences for ALL first time offenders!; Arguing collateral consequences at sentencing; Navigating the pitfalls of not accepting responsibility after trial. LINKS: "The 3Rs of Sentencing Narrative": In this I make a few references to something I call “relativity” and “redemption” stories, which are 2 of the “3Rs” of sentencing. If you’d like to dig into the full 3Rs, visit the shownotes on the website and you'll find a link to an article I wrote on the subject for the Champion.
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DePape (Pelosi Attacker) Sentencing Post-Mortem
05/27/2024
DePape (Pelosi Attacker) Sentencing Post-Mortem
It shocked the nation when David DePape, driven by insane QAnon conspiracy theories, violently attacked Paul Pelosi, husband of former Speaker Nancy Pelosi. A federal judge recently sentenced DePape to 30 years in prison. With that de facto life sentence looming, we uncover a legal twist: the judge’s oversight during sentencing denied him the chance to speak in his own defense. Now, a follow-up hearing is in the offing, leaving us wondering—will DePape break his silence, and will the sentence change? More importantly, at sentencing his lawyer reveals that DePape has documented mental health disorders, including Autism Spectrum Disorder. Yes, we're going there -- again. In this episode, we explore the intersection of radicalization and vulnerability, particularly online, among individuals with ASD. Could this condition render them more susceptible to extremist ideologies? #DePapeCase #SetForSentencing #Radicalization #MentalHealth #Autism LINKS: Original DePape Podcast: Alan Ellis - Articles about What Judges Look For At Sentencing: For a copy of Judge Bennett's Article, go to shownotes at the Set for Sentencing website:
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Pre-Sentence Reports
05/13/2024
Pre-Sentence Reports
The pre-sentence report is arguably the most crucial sentencing document. Not only does it serve as a vital tool for judges during sentencing, but it also acts as the “bible” that the Bureau of Prisons (BOP) relies on to make critical decisions about our clients. Unfortunately, many lawyers struggle to properly prepare their clients or ensure the report’s accuracy before it reaches the BOP. In this episode, we’re fortunate to have Leslie Lockwood as our guest. Ms. Lockwood spent her career as a pre-sentence report writer in the Eastern District of NY, including several years as a supervisor. She’ll provide valuable insights into federal pre-sentence reports, covering topics such as best practices for pre-sentence interviews, the role of pre-sentence writers, and more.
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The Artificial Lawyer: A Debate About the Usefulness of A/I in the Legal Arena
04/29/2024
The Artificial Lawyer: A Debate About the Usefulness of A/I in the Legal Arena
Artificial intelligence is here and it’s getting more sophisticated and more ubiquitous every day. Indeed, the legal community seems to be largely embracing A/I with open arms. But the jury is still out whether this somewhat terrifying new technology is going to be our savior or our destroyer. Therefore, helping us get set for sentencing this week are two great gentlemen: a lawyer (Patrick Barone) and communications expert (Dr. Randy Olson) to debate the pros and cons of A/I in life, and in law. IN THIS EPISODE: Using A/I as an editor in legal writing; Using A/I to help a client prepare to allocute at sentencing; Using A/I to summarize voluminous discovery and creating summaries for clients; A/I’s limitations; The concept of “prompt engineering” and it’s importance in generating the best A/I results; The importance of infusing meaning into our sentencings, our stories, and our lives. OTHER LINKS: We spent a fair amount of time discussing the "ABT" Narrative template. It's a simple way of powerfully communicating in narrative form in any setting. I co-authored a book on this with Dr. Randy Olson and have done a few podcasts on the topic. Here's Episode four: Here's a link to buy the book: As we discussed, the big fault with all of this new technology is the risk that it robs your pursuits of all meaning! This goes to the core of what Randy’s big critique about A/I is at this moment, it’s MEANING that makes our lives worth living. That’s why we love telling, watching, reading, and listening to stories so deeply – great stories are infused with big meaning- universal truths about life. I wrote about this on my blog a few years back in the context of the epic Tarantino Film, “Once Upon a Time in Hollywood”. Take a look: More on Patrick Barone: More on Randy Olson:
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Trump on Trial
04/15/2024
Trump on Trial
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 “other conduct” 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: Richard Willstatter:
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