Don’t Just Say It, Show It: The Use of Video to Change the Outcome of Cases

This piece on De-Bug's "Social Biography Video" concept will appear in the next edition of "Cornerstone", the quarterly journal for the National Legal Aid and Defender Association.

(Emigdio's mother discussed why her son does not deserve a jail sentence. Click image to see sample videos.)

I have sat in countless courtrooms alongside families whose loved ones are being sentenced.  After these hearings most families -- in the parking lot, at home, or elsewhere -- will ask for one wish.  That wish is not that this never happened, or that they could rewind time and rewrite history.  Rather, families often state: “I just wish they knew him like we know him.”

The people referred to as “they” are the prosecutors, the judges, and sometimes even the defense attorneys.  Families and loved ones wish their son, daughter, father, or mother could be understood by those making life-altering decisions beyond the simple information contained a police report or case file.  Families want their loved ones to be understood as human, with the complexities and richness of their lives as part of that knowledge. People wish that the collateral damage of incarceration on a family would be more fully known, understood, and considered by the institutions of the court.  They want their lives, and the impact of the court’s decisions, to be understood – truly understood – not limited by the narrow lens of an assembly-line type court proceeding.  

But in courts across the country, the input of family and community is regularly sidelined from the decision-making process. The result is a tunnel-vision understanding of the defendant – stripped of the larger story of family, community, future, and history (a history which includes more than past convictions).  Of course, while on paper the depiction seems reasonable – the State vs. “Some lone individual” -- that surgical removal of someone’s life context from the people around him or her is not reality. One quick glance into the audience seats at court and it is evident: despite how a person may be painted, even the accused is loved.

And while courts haven’t changed much over the years the world around them has, opening up a new way for family and community voices to penetrate and impact the court process. At my community organization -- Silicon Valley De-Bug, where we support families who have loved ones going through the court system -- we call them “social biography videos.”  Think of them as the 2.0 versions of character letters.

In an era where video is becoming both more accessible to produce and integrated into everyday aspects of daily life – the ubiquity of YouTube and videophones – a production company, expensive equipment, and “professionally trained” videographers are no longer necessary. At my organization, our video-makers are mid-twenty year olds with no formal training, some of whom were former public defender clients themselves; using cameras they bought at Costco. It’s not about the technology, it’s about the story.

Social biography videos are usually 5-10 minute interview compilations that allow the viewer to walk in the defendant’s world – see their home, meet their kids, go with them to their job, learn about how they grew up, and meet who will be waiting for them when they get out. In this context, the medium of video does what it has always done: brings life, context, emotion, and a multi-dimensional understanding of the subject. It can go where traditional avenues for families to share with the courts often fall short.  Composing a letter to a judge is nerve-wracking and limited by one’s writing ability. Testifying in an intimidating court in front of judges and bailiffs is an even more anxiety-riddled experience, limited by time. But to see a mother talk about her son while sitting comfortably on her couch with her kids’ photos behind her, sharing future prospects and family support, produces a very different experience than a letter could.

Since we have been producing these videos, they have been used by defense attorneys in different ways, and with positive results. They have been tools to negotiate down charges with prosecutors, to remove strike priors and to lower sentencing by a judge after conviction. We started initially by helping families produce photo essays.

The idea originated when a community member approached us after he had already pled to a drug charge, but had not been sentenced yet. He was facing a prison sentence, mainly due to the fact he had prior drug charges from his past.  He admitted he relapsed and was determined to address his addiction, but didn’t think prison was the way.  I remember him saying, “I can do the time, but they will end up taking my kids.”  He was a single father of three young girls. We suggested that he take pictures of his experience as a father to show what this loss would mean.  He took pictures of getting the girls ready for school, making them breakfast, dropping them off, picking them up, taking them to volleyball practice, helping them with homework, and tucking them in at night. He walked his probation officer through the binder of photos while they were interviewing him for their probation report (in which a sentence recommendation would be provided to the court), and submitted the photo essay to the court through his attorney. He was facing a maximum exposure of five years in prison.  Instead, he received a six month out-patient program so he could both work on his rehabilitation and keep the family together. The family information, presented through images, impacted the outcome of the case. He was not seen just as a drug user, but as a father, committed to improving himself for his kids.

When a public defender approached us and said she had an 18-year-old undocumented client named Emigdio who was facing jail time, but was having a hard time convincing the prosecutor why he was over-charging, we produced a video to “show” her argument through video. We did interviews of the young man’s family in their small, scant, yet tidy home, where mother and father spoke about how their detained son was the main breadwinner of the house, the reason they are able to pay rent for their family of five. While the two younger siblings played in the background, the mother talked about how the younger kids looked at Emigdio as a second father, how he cooks and cleans for the household. The father took us to a nearby golf course, where Emidgio cleans the golf carts, and interviewed a manager who said he has his job waiting for him for when he gets out. We also interviewed an immigration lawyer who pointed out how there were new forms of immigration relief available to Emigdio, all of which would vanish if he was convicted with the current charges. The attorney called weeks after we turned in the video and informed us the prosecutor agreed to resolve the case with Emigdio doing weekend work program, and never had to “take a step in jail.” The resolution also preserved his vital immigration relief.  The video worked to show what she had been attempting to communicate the whole time – that there was significant collateral damage if the charges stayed at this felony level.

One of our more recent videos was used for a Proposition 36 re-sentencing hearing. Voted in by California voters last year, the law makes those serving a life sentence due to three strikes eligible for re-sentencing if their third offense was not serious or violent. A public defender reached out who had a Prop 36 client, Will, who did eighteen years for a non-violent offense. If his last offense was not a strike, he would have been released years ago. The attorney was concerned the district attorney’s office would contest the re-sentencing, and asked us to produce a video on the 27-year-old daughter Angela – the main support system for his re-entry if released. Angelaspoke eloquently about how despite his physical absence throughout her growing up, he was still an involved parent, and how in many ways he has been with him as she went through college, a master’s degree, and now into her professional life – all through heart to heart phone calls and letters. We showed photos from prison visits coupled with shots time-lining significant moments of her life, as she narrated how her father always emboldened her to continually strive for better. She spoke practically; explaining how she is prepared to ensure that he has housing, employment, emotional support and family to make sure he doesn’t re-offend if given a chance. She spoke about what it would mean for her life to have him back, and how she dreamed of a day to just have breakfast with her dad. The attorney showed the video to the Three Strikes Panel, a group of prosecutors, as part of his larger presentation.  The panel decided not to contest. Will had breakfast with Angela a couple weeks after the video was viewed, as a free man. In delivering us the news, the Public Defender wrote, “The video made a substantial impact! It allowed us to introduce our client’s daughter Angela to the District Attorney’s Office in a very meaningful way. By getting to know Angela the DA’s Office found that our predictions of re-entry success for her father were credible and viable.”

While Will’s video was about the future, social biography videos can also provide important windows to the past. A video we did earlier this year for a juvenile case showed how impactful telling the back story can be when deliberating on charges and sentences, or even understanding current behavior. We were able to eliminate two strikes from the charges for this 16 year old by producing a video for the defense attorney that illustrated he was a teenager that the foster care system -- and really every single adult in his life -- had either abused or turned their back on. We showed footage of the abandoned lot behind a fast food joint where he would sleep at night because he had nowhere else to go. We showed, by putting motion to a map, all of the cities across the state he was bounced around to through the foster care system, never experiencing any sense of stability. The video was not to refute the claim of the charge; it was to explain the story and context of a teenager who, as his relative says in the video, “grew up feeling and knowing he had nothing and nobody in the world.”

And though the ultimate measuring stick for a video is whether or not an attorney was able to use it to impact a case, there is an important byproduct of the process. Namely, the creation of a video allows for new points of collaboration between families and the attorneys who represent their loved ones. To know how to use a social biography video assumes the defense attorney is already processing the larger story of their client – already creating more involved advocacy. That families get a chance to assert their voice, if only to tell the story of their loved one, is empowering in arguably the most disempowered moments of their lives.

Technology has allowed new possibilities to change the way courts have worked for years, but ultimately, the capacity to transform the courts rests where it always has -- the power of families, communities, and attorneys partnering to bring fairness and justice to those the system is attempting to de-humanize.

About Raj Jayadev

Raj Jayadev is the coordinator of SV De-Bug and coordinates the Albert Cobarrubias Justice Project, an organizing model for families and communities to impact their local court systems. He is an Ashoka Fellow.

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