Before the video, we had no opportunity. We had no guidance. We had no way of telling our story. Neil had no way of telling his story. All he had was the case over his head and you gave him a voice. This project gave him a voice. The video allowed him to speak, and it allowed people in the courts to see him as a person rather than a mistake he made 20 years prior.” 

– Natasha Whyte, partner of Legal Aid Society client

The United States has more than two-million people in its prisons and jails, more than any other country in the world. This comes at a great human and financial cost and disproportionately impacts people of color and low income communities. This reliance on mass incarceration does not address the root causes of violence or keep our communities safer. Public defenders are faced with an uphill battle of trying to represent clients who are navigating a system that is punitive and dehumanizing. 

Guided by the work of decarceration movements and abolitionist organizers, advocates and public defenders are increasingly employing creative tactics to fight for policy change and provide innovative services to those impacted by an unjust, criminal legal system. The WITNESS U.S. team has been supporting these efforts through providing collaboration and guidance around the use of video for clemency, parole and sentencing mitigation. These videos help to highlight aspects of someone’s personality, achievements or growth that might otherwise get lost in mountains of paperwork being reviewed by a judge, board, or district attorney.

In 2019, we began working with The Legal Aid Society to explore clients’ lives through video to convey their character, aspirations, traumas, difficulties, and often, transformation, and to make this type of mitigation video more accessible to public defenders, social workers and the people they serve. In certain cases, video can be more effective than traditional written mitigation requests, with extraordinary potential for low-income clients.  So far we’ve supported the creation of over 22 videos which have led to drastically reduced sentences, alternatives to incarceration and elimination of bail conditions, resulting in over 55 years of “time saved”. (We borrow the idea of “time saved” versus “time served” from Raj Jayadev from Silicon Valley De-bug, a participatory defense organization who has helped inform our work).  

Watch the new video we co-produced to learn more about the work. Continue reading below for an interview with Nicole Mull, Senior Attorney at The Legal Aid Society who is spearheading these efforts.

Q&A with Nicole Mull, Senior Attorney at The Legal Aid Society

Why did you want to start using video mitigation as a tool for your clients?

Nicole: For the last 25 years as a public defender, I have fought tooth and nail in state criminal court to bring to my clients as close to a system of justice as I could get them, trying to convey to prosecutors and judges that they are human beings, individuals like mothers, co-workers and neighbors with complex lives and histories; all in an effort to have authorities see more than a ID number on a rap sheet, a litany of charges on a complaint. These attempts to humanize my clients have been conveyed orally in bail applications, in person in bench conferences, in negotiations with district attorneys, and in writings carefully crafted with my social worker colleagues. 

As public defenders, the largest weapon in our mitigation arsenal to reduce clients’ sentences has always been the written mitigation report. These psycho-social reports written by and with social workers and mitigation experts can be repetitive and voluminous as they are often accompanied by mental health records, psychological evaluations, certificates of achievement and letters of support, all of which convey information about the client’s background, struggles, mental health issues,  addictions issues, with the goal of obtaining leniency in sentencing. The written mitigation report continues to be quite effective in certain circumstances. The thorough prosecutor or judge who devotes time to examining the entire report, and appreciates the defense team’s commitment to honesty, will get a clear picture of the mitigation in a client’s case by digesting the report. However, to the skeptical or rushed reader, or even the jaded reader who has read tens of hundreds of similarly sounding reports, the written mitigation report may not be convincing enough.

As video editing became more  commonplace with recent developments in mobile phone and computer technology, I began to notice attorneys for clients-of-means, typically white and white-collar, commissioning mitigation videos to  share with prosecutors and judges to humanize their clients and illustrate why they deserve mercy. I  recognized that my low-income clients, typically BIPOC, and their comparatively meagerly funded public defense were missing out on a very effective advocacy tool: the written word is simply not as effective  as video storytelling.  Therefore, with WITNESS’ guidance in 2019, I began working to develop the creation of mitigation videos at the Legal Aid Society. I took classes at the School for Visual Arts and developed  relationships with videographers and volunteers, colleges, and law schools who believed in this cause. Our rag-tag team of three, filmmaker David Simpson, Producer Natalie Carranza and I started from scratch and on a shoestring budget and our team is now working on video number 23, 24, 25 and 26.  

What impact has this work had on your clients, LAS, and/or on you personally?

Nicole: We have achieved unprecedented results in the vast majority of our cases.  Our clients have had years taken off of their sentences.  Mitigation videos have humanized our clients by delving into the mitigating aspects of their lives in  a way that the written word cannot. They literally have put a face on our clients for the viewer, helping them understand our clients’ lives and circumstances that led them to be sucked into the criminal justice system. The mitigation video distinguishes one client from the next and hearing from family members, experts and other legal professionals can be an impactful way to provide a more nuanced and compelling story of our clients to viewers.  The viewer gets to know the person’s family, surroundings, personal history, issues, and personality.  Video can convey mood, tone, pain, and humility in a way that a few paragraphs or still photographs cannot. It also gets the attention of the increasing number of viewers who favor sound bites and memes over the eloquence and persuasiveness of a well written, albeit lengthy, document.  The mitigation video, which under certain circumstances can include words from the client, allows the client to speak and be heard in a legally safe way, humanizing them to the prosecutor and/or judge without jeopardizing their case. 

I am particularly proud of our team’s efforts in 2020.  When Covid hit, we seamlessly switched to virtual interviews and filming.  And videos that typically took months to create were done in days to immediately get vulnerable clients off of Rikers Island.  I’m proud to have been part of a team so dedicated that videos supporting the writs responsible for the release of sick and dying clients, were being edited 24/7. We passed them from virtual hand-to-hand across the country’s time zones where volunteers, interns, and students from NY to California, Hawaii and back, would waste not one minute of the day getting the work done to remove our clients from the documented cesspool that still to this day is Rikers.  

Can you share 1-3 things you’ve learned in the process of doing this mitigation work?

Nicole:

  1. Persistence Persistence Persistence. With the backing of the Legal Aid Society, an organization that truly believes in innovation in the field of public defense, I discovered that even on a shoestring budget, when there is a will, there is a way.  Even with Covid, lack of proper funding for criminal defense, and crushing caseloads, we made it work for our clients, who deserve every bit the same defense as those with bankrolled legal dream teams.
  2. People don’t like change and are skeptical of new things. It has been a challenge to move long standing institutions, like the criminal justice system, towards more tech savvy and visual approaches to advocating for our clients.
  3. Word of mouth is a powerful tool.  Spread the word and the support will come.  If I can make this happen with a handful of volunteers, interns and students, imagine what we could accomplish with paid staff!  

What is your vision for this work moving forward?

Nicole: My goal is to create a system whereby video mitigation pieces could be accessed by public defenders all over the country for their low income clients to benefit from this valuable advocacy tool.  I would like to see the creation of a video unit at the Legal Aid Society that not only creates a larger number of mitigation videos but also trains lawyers, social workers and filmmakers across the country on how to start  in-house video units within public defender offices.  

My vision for establishing an in-house video unit within the Legal Aid Society is to both streamline the process of creating powerful and effective videos that drive tangible outcomes in cases, but more importantly become leaders in innovative advocacy through emergent technology and storytelling techniques. This unit would be creating and leading best progressive  practices in mitigation all over the country. 

Currently we are doing the work for a small number of clients at the Legal Aid Society.  With more financial support, we could do more, for more of our clients, but also we could begin training public defender offices across the country to show others how they do not have to break the bank, and how with an inhouse team this can be achieved on a public defender budget. 

I would like to see video mitigation be an established part of every major state public defender office in the country. I would like to see more law schools connect with public defender offices and work on these projects so that years from now, just like social work departments, they are naturally embedded in the work.

What would you tell other public defenders, law students or social workers who are interested in getting involved or creating their own videos?

Nicole: Let’s talk!  You can learn more about the work and get in touch with us on our Video Mitigation Project page.

Find additional tips and resources for creating mitigation videos on the WITNESS Legal Video Advocacy page.

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