When HBO or POV Comes Calling: Defense Counsel’s Role in an Observational Documentary of a Criminal Proceeding
By Regina Austin
“Paradise Lost: The Child Murders at Robin Hood Hills,” “Murder on a Sunday Morning,” and “Gideon’s Army” all took their audiences into courtrooms to witness the actual trial of a criminal case. Imagine the ethical and strategic issues that confront a defense lawyer when a documentary filmmaker proposes to do an observational or vérité treatment of a client’s criminal proceeding. What steps should the lawyer take if her or his client would benefit from the offer? What advice would a lawyer who has participated in such a documentary project give to other defense counsel contemplating doing the same?
I set out to investigate these questions after I saw “15 to Life: Kenneth’s Story,” which recently aired on PBS. I spoke with Professor Paolo Annino of Florida State University Law School, who represented the defendant Kenneth Ray Young, and Nadine Pequeneza, who directed the film, to get the “lawyering backstory” of the making of “15 to Life.” Their approach to the production of an observational documentary of a judicial proceeding should not be taken as the correct approach, but it does provide an interesting basis for a continued dialogue about best practices in this regard.
The Essential Elements of Kenneth’s Story. Floridian Kenneth Young was sentenced to four consecutive terms of life without the possibility of parole (“LWOP”) for armed robberies he participated in during a one-month period just before and just after he turned 15 years old. He had had a tough childhood. His mother was addicted to drugs. He dropped out of school when he was 11 to take care of his older (by 4 years) sister’s children. The adult with whom he committed the crimes was his mother’s 24-year old drug dealer. Once in jail, Kenneth did everything he could to rehabilitate himself despite the lack of opportunities the Florida penal system affords lifers. When the documentary begins, he is 26 years old and has served 11 years with only one infraction (for failing to make up his bed one Saturday morning).
In 2010, in the case of Graham v. Florida, the United States Supreme Court ruled that sentencing juveniles who are not guilty of murder to LWOP is cruel and unusual punishment under the 8th Amendment. Writing for the Court, Justice Anthony Kennedy stated that the state had to give such defendants “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
As a result of that decision, Professor Annino, Kenneth’s attorney, moved to vacate his sentence. A resentencing hearing was ordered for the fall of 2011. That hearing is the subject of “15 to Life.” Given that Florida has abolished all parole, Annino argued that Kenneth should be released based on time served and proof of his rehabilitation. After the presentation of witnesses and arguments by both sides, Judge Daniel Sleet rejected Annino’s position and imposed a sentence of a term of years. (Go to the documentary’s website and its links to social media to learn more about the case and the outreach campaign in which Kenneth’s documentary is being used to support advocacy on behalf of juvenile lifers and the reform of laws that sentence children to die in prison.)
Weighing of the Pros and Cons of a Documentary about Kenneth. As co-director of the Public Interest Law Center at FSU College of Law and director of the Center’s Children in Prison Project, as well as a recognized advocate for abolishing LWOP for juveniles, Professor Annino was contacted by several documentary filmmakers who were interested in his clients as subjects. Canadian Nadine Pequeneza was among them. She learned about Kenneth Young from news reports about Annino’s earlier attempt to obtain executive clemency for him and thought his sentence was “incredibly harsh … for a nonhomicide crime.”
In Annino’s estimation, the pros of Kenneth’s participating in a documentary project like “15 to Life” outweighed the cons. The defense had nothing of a factual nature to hide from the state with regard to the resentencing.Moreover, there were strategic benefits to a film focusing on Kenneth. Graham v. Florida had just been decided. The Florida courts would likely be unreceptive to Kenneth’s claim for release and would need to be educated about the new precedent. Finally, Kenneth was an unusual prisoner because of his successful efforts to rehabilitate himself (which even Judge Sleet acknowledged). His resentencing was not run-of-the-mill. That a documentary was being made about his case affirmed that. At the very least, Annino hoped that the documentary might provoke the appellate court to write an opinion rather than affirm whatever sentence the judge meted out with a perfunctory per curiam ruling. Kenneth’s appeal did result in an authored opinion. See Young v. State, 110 So.3d 931 (Fla. App. 2d Dist. 2013).
Annino did not discuss his assessment of the positive impact the documentary might have for his client with the filmmaker. They were, after all, not partners in the legal representation of Kenneth Young.
Trust and Consent: Sine Qua Nons for Going Forward. Before accepting Pequeneza’s proposal, Annino had to be satisfied on two counts: (1) that the filmmaker was trustworthy and (2) that his client was satisfied with the terms agreed upon and gave his fully informed consent to participating in the project.
Professor Annino and FSU’s Public Interest Law Center exercised due diligence with regard to Pequeneza. He examined her about her past films, her goals for the project, the research she had done, and others she had spoken with. He looked at her previous work. He concluded that there was nothing sensational or gimmicky about it. In addition, Corinne Koeppen (now Lojo), a graduate fellow at the Center, contacted Patrick McGuinness, the former Jacksonville Public Defender who was the lead counsel for the innocent defendant in “Murder on a Sunday Morning,” to see what, if any, advice he had on developing a contract or agreement with the documentary crew.” In a brief written comment to me, Koeppen explains that the attorneys “were in the process of writing their own [agreement] and so we wanted some more input on certain conditions we should include.”
The process of obtaining Kenneth’s consent was deliberate and patient. It took a month or so. There was no hurry. It began with a letter from Pequeneza to Kenneth outlining the project. Annino negotiated on his client’s behalf. The agreement between Kenneth Young and Pequeneza was a consent form tailored to the situation. Pequeneza was given the right to record conversations between Kenneth’s lawyers and expert witnesses. Annino was given the right to review the rough cut, though it is not entirely clear on what basis he could require changes. I have not seen the written agreement which is confidential. Annino says that he was entitled to exclude anything that was damaging to his client. Pequeneza says that Annino’s review was restricted to factual inaccuracies. (In the end, no changes were made.) Annino also insisted that no footage could be “published” or shown until Kenneth’s state court appeals of the resentence were completed. That was done.
Once the agreement was signed, Annino’s involvement in the production process was minimal. He describes himself as keeping the documentary project at “arm’s length.”
Consent from the Filmmakers’ Point of View. Pequeneza, for her part, wanted Kenneth’s fully informed consent. In general, she wants her subjects to know what they are getting themselves into. In her view, “more people are watching documentaries,” while the documentaries themselves have “longer lives” and are accessible in more venues and on more platforms than compared to, say 1966, when the first of the “Paradise Lost” series premiered. Pequeneza added that documentaries are “more powerful and influential” now. There can be lasting “repercussions” on the lives of those who participate in a documentary, which imposes more of a “responsibility” on everyone, “especially on the lawyers who are intermediaries” between the clients and the filmmaker.
Furthermore, explanations at the outset may not totally convey the commitment a documentary project truly entails. Pequeneza feels the need for continual by-in from participants throughout production to prevent them from being “disappointed or pulling out of the project part of the way through.” Subjects can interrupt observational or vérité filming, and disrupt or take over the project by, in essence, editing the piece in the camera. According to Pequeneza, the filmmaker has to maintain “a relationship of trust” and keep the subjects convinced that they and the filmmaker “are working toward the same aims.” If interruptions continue, Pequeneza will stop the project.
Pequeneza noted that Paolo Annino was a subject of “15 to Life” too and his informed consent was important. At the same time, though, it was essential that he not function as a producer. Such a role would have impacted his credibility. Pequeneza believes that restrictions on his right to make changes in the rough cut were tied to the audience’s expectation that the documentary was “the truth.” By that I assume that Pequeneza means some notion of “objective truth.” If the subjects were making the film, Pequeneza maintained, the film would have “to be promoted in that way.” Professor Annino’s keeping an “arm’s length” distance from the filmmaking was fine with her.
Pequeneza worked out the details of recording Kenneth’s resentencing hearing with the judge’s staff. Florida has very liberal court regulations regarding cameras in the courtroom. The state gave its permission. It also supplied the surveillance video of the robberies shown in the documentary. The judge, the prosecutor, and the victims who testified declined to be interviewed after the proceeding was over.
The State’s Role in the Face-to-Face Meetings between Kenneth and the Filmmaker. In an online conversation with POV executive producer Cynthia Lopez, Pequeneza describes her first face-to-face meeting with Kenneth Young in the Tampa jail where he was housed before the hearing. Two guards were present and they were joined by an investigator from the state’s attorney’s office who proposed to record the interview in order to use what Kenneth said against him at the hearing. Kenneth called off the interview. It was rescheduled for right after the hearing.
When the recorded interview of Kenneth did take place, there were guards present. Pequeneza concluded that Kenneth was as honest and forthright as he could be given that Kenneth’s life was still under the control of the state department of corrections. Koeppen, who served as Annino’s co-counsel during the hearing, was also present. She wrote that she was “[b]asically … there to make sure that nothing incriminating came out. Nadine let us know of the topic areas she was covering beforehand, and she stuck to those as agreed.”
Prison rules and regulations differ from jurisdiction to jurisdiction with regard to whether recording of prisoners by the media is permitted, whether defense attorneys can be present during interviews, and whether the state can assert a right to be privy to what is said. Defense counsel’s obligations vary accordingly.
Impact of the Camera on the Participants and the Outcome. One of the concerns generally associated with documentaries based on the observational or vérité capture of real-time events is that the presence of the camera alters behavior and causes subjects to act in ways they would not otherwise act. With a court proceeding, conduct spawned or provoked by the camera might conceivably affect the testimony or the outcome. This possibility may not be obvious to a defendant and her or his counsel when they are deciding whether to participate in a documentary project.
With “15 to Life,” I wondered if the judge or any of the witnesses might have been affected by the recording of the hearing in a way that was adverse to Kenneth. Annino concluded “in retrospect” that the camera did not affect or change the testimony. Pequeneza was of the opinion that the impact of the camera was slight; “what was going to happen, happened.” If anything, she thought that a camera makes people more honest.
Nonetheless, there seems to be a real possibility that the presence of the cameras and her involvement in the documentary project impacted the behavior of Stephanie Young, Kenneth’s mother, on the witness stand. According to Pequeneza, the narrative of the documentary was built around Kenneth’s relationship with his mother. A recovering drug addict, “Thank you, Jesus”-proclaiming church member, and late blooming matriarch, she had perhaps the most to lose from exposure of her past as a poor parent. On the stand, she offered an incomplete picture of her neglect of her children, even claiming that Kenneth was never left alone but was always in the care of his sister and grandparents in a response to a question from the prosecutor that questioned Kenneth’s credibility. She insisted on reading a letter to the judge that she had just written. The camera picked up Annino’s head and hand gestures which indicated that he did not think reading the letter was a good idea. In his post-hearing interview, Kenneth said that his mother was less “straightforward” in her letter than she generally was in their conversations during her prison visits. Kenneth thought that she was “ashamed that she had played a role in his being incarcerated.” There was little Annino or Koeppen could have done to challenge her while she was on the stand. They would not have wanted to jeopardize Kenneth’s relationship with his mother. As Annino suggested, a prisoner’s successful re-entry depends on the support of her or his relations. Kenneth would likely need Stephanie’s support in the future. .
In any event, a defense counsel involved in the making of an observational/vérité documentary has to be vigilant with regard to anticipating the negative impact that recording may have on witnesses who, though supportive of the defendant, have secrets and other facts about themselves they would like to protect from disclosure.
Annino’s Final Assessment. Asked if he would do it again, Professor Annino said “only if the case were as exceptional as Kenneth’s.” What he had not realized going into the project was how much filming there would be. Pequeneza said that the hearing itself lasted five hours. There was a great deal of footage to condense into a 40-minute documentary. Annino did not sound dissatisfied with result, however. As for general advice to other defense counsel, he offered the following admonition: “Be careful.”