AI-generated image of shooting victim Christopher Pelkey (YouTube/New York Post).
Gabriel Paul Horcasitas shot and killed Christopher Pelkey during a red light road rage confrontation in 2021 in a Phoenix, Arizona, suburb, a jury having rejected his claim of self-defense. He was sentenced to 10 1/2 years of imprisonment. There was nothing particularly unusual about the case – until sentencing.
What was, indeed, unusual was that Pelkey's family had created an AI video that rendered the deceased, Pelkey, actually speaking to the judge as a living person — albeit, astonishingly, from the grave. The victim's sister explained to the sentencing judge that even though he had been presented with the victim's writings about what he'd like his future to look like, the victim is "not even here to tell us what he would think about it, but I imagine it constantly because I know he would say everything I would absolutely never be able to say myself."
And so, with the judge's permission, she presented an AI video that depicted the "victim" speaking to the camera. The video began with the AI victim explaining that the video was a "version" of himself recreated through AI that used his picture and his voice profile. Additionally, as the Arizona Court of Appeals later described it, "a 'real' video of the victim, embedded within the AI video, played — in which the victim conveyed his faith and spiritual beliefs. Afterwards, "the AI victim reappeared and stated that the AI video 'is a true representation of who [he] was…not how the courtroom portrayed [him].'"
A true representation?
The AI victim – best identified here as an avatar – explicitly said that he believes in forgiveness and in God. Speaking about his views of life, he then thanked the court — including the judge, for inconveniencing himself over the trial date — and conveyed his love to his family and friends, assuring them he would see them "on the other side," followed by an embedded real video showing him engaged in the pleasurable activity of fishing.
Afterwards, the victim's family attorney asked the judge to weigh this victim impact as a rebuttal to what the defense had presented in mitigation. Indeed, his forgiving nature in one way may have suggested that Pelkey was a "good guy" virtually almost suggesting he would have favored leniency for his killer. On the other hand, that forgiving nature that inhered in his personality, if accurate, would also have underscored how great a loss his senseless killing had been to his survivors and how, therefore, deserving of a lengthy sentence the defendant actually was.
When the parties' remarks were concluded and before imposing sentence, the judge said that "I loved that video," "we've gotten to know [the victim] today," and "I feel that that was genuine." In addition — the reporting press, perhaps wrongly, mostly concentrated on this — the judge added "I didn't hear [the victim] asking for the maximum sentence." One must kind of wonder about the judge and his odd commentary in describing his overall reaction to the video.
The Arizona Court of Appeals that vacated the sentence and remanded it for a new sentence said that the record below didn't reflect precisely how the AI video factored into the sentencing calculus. Nonetheless, it found that the sentencing judge committed "fundamental error" by receiving the AI portion of the presentation. And given that the judge said he "loved" and found the AI video presentation "genuine," it obviously did play a role in the sentence imposed.
Unquestionably, a sentencing court should be allowed to consider actual videos of a deceased crime victim that might be relevant to sentencing issues. What was presented here, though, were "imaginings" of the victim's family describing the supposed thinking of the victim (and the dangers of an avatar played in court), not the victim himself. Obviously, it would be impossible for an avatar to convey what the actual victim might actually have said to the sentencing judge. No one on earth could possibly have the ability to truly know what the victim would say to a judge sentencing his killer if the victim knew that he was actually and senselessly slaughtered.
And therein lies the danger in proceeding down a road that employs an AI avatar in a court proceeding — even in the hands of a judge without a jury. Even though, as the appeals court found in the Horcasitas case, there was no suggestion that the trial judge was "lied to" or in any way "deceived" on the basis of the AI video depicting a deceased individual, it's use certainly had the absolute capacity to bring extremely questionable and clearly fictional nuances to the sentencing process that surely presented something as being the thoughts of victim that simply weren't.
And while the judge may have (understandably) wanted to exhibit compassion to the victim's family by letting them have their "day in court" in this particular manner of their choice, he did so by compromising the rights of the criminal defendant before him who had no ability to examine the remarks of the crime victim who was being substituted for by an avatar.
One might certainly wonder if the Arizona appeals court was looking down the road when it threw out Horcasitas' sentence, attempting to ensure that it was not leaving the door ajar to future abuses of court process by enabling not only judges, but maybe juries too, to be influenced in their deliberations by more-than-arguably-fictitious presentations.
Indeed, a fictitious presentation is exactly what the avatar presentation was here, nothing less — even if, through some otherworldly miracle, that's exactly what the decedent would himself have communicated to the judge had he been, deux ex machina, somehow alive and physically in the courtroom to express his thoughts!
They say a picture is worth a thousand words — but when it comes to an AI video of a deceased victim, this judge might have been better off keeping those words to himself.
Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law at Ruskin Moscou Faltisheck PC. He is the author of "Blindfolds Off: Judges on How They Decide" (ABA Publishing, 2014) and "Broken Scales: Reflections on Injustice" (ABA Publishing, 2017) and an adjunct professor at both Fordham and Cardozo Law Schools.