Two Pro-Se Defendants

In Faretta v. California (1975), a defendant who wanted to represent himself was quizzed by the judge about his familiarity with criminal procedure and evidence. Things did not go very well:

“THE COURT: In the Faretta matter, I brought you back down here to do some reconsideration as to whether or not you should continue to represent yourself.””How have you been getting along on your research?”

“THE DEFENDANT: Not bad, your Honor.””Last night, I put in the mail a 995 motion, and it should be with the Clerk within the next day or two.”

“THE COURT: Have you been preparing yourself for the intricacies of the trial of the matter?”

“THE DEFENDANT: Well, your Honor, I was hoping that the case could possibly be disposed of on the 995.””Mrs. Ayers informed me yesterday that it was the Court’s policy to hear the pretrial motions at the time of trial. If possible, your Honor, I would like a date set as soon as the Court deems adequate after they receive the motion, sometime before trial.”

“THE COURT: Let’s see how you have been doing on your research.””How many exceptions are there to the hearsay rule?”

“THE DEFENDANT: Well, the hearsay rule would, I guess, be called the best evidence rule, your Honor. And there are several exceptions in case law, but in actual statutory law, I don’t feel there is none.”

“THE COURT: What are the challenges to the jury for cause?””THE DEFENDANT: Well, there is twelve peremptory challenges. “

“THE COURT: And how many for cause?”

“THE DEFENDANT: Well, as many as the Court deems valid.”

“THE COURT: And what are they? What are the grounds for challenging a juror for cause?”

“THE DEFENDANT: Well. numerous grounds to challenge a witness — I mean, a juror, your Honor, one being the juror is perhaps suffered, was a victim of the same type of offense, might be prejudiced toward the defendant. Any substantial ground that might make the juror prejudice[d] toward the defendant.”

“THE COURT: Anything else?”

“THE DEFENDANT: Well, a relative perhaps of the victim.”

“THE COURT: Have you taken a look at that code section to see what it is?”

“THE DEFENDANT: Challenge a juror?””THE COURT: Yes. ,”

“THE DEFENDANT: Yes, your Honor. I have done — “

“THE COURT: What is the code section?”

“THE DEFENDANT: On voir diring a jury, your Honor?”

“THE COURT: Yes.”

“THE DEFENDANT: I am not aware of the section right off-hand.”

“THE COURT: What code is it in?”

“THE DEFENDANT: Well, the research I have done on challenging would be in Witkins Jurisprudence.”

“THE COURT: Have you looked at any of the codes to see where these various things are taken up?”

“THE DEFENDANT: No, your Honor, I haven’t.”

“THE COURT: Have you looked in any of the California Codes with reference to trial procedure?”

“THE DEFENDANT: Yes, your Honor.”

“THE COURT: What codes?”

“THE DEFENDANT: I have done extensive research in the Penal Code, your Honor, and the Civil Code.”

“THE COURT: If you have done extensive research into it, then tell me about it.”

“THE DEFENDANT: On empaneling a jury, your Honor?”

“THE COURT: Yes.”

“THE DEFENDANT: Well, the District Attorney and the defendant, defense counsel, has both the right to 12 peremptory challenges of a jury. These 12 challenges are undisputable. Any reason that the defense or prosecution should feel that a juror would be inadequate to try the case or to rule on a case, they may then discharge that juror.””But if there is a valid challenge due to grounds of prejudice or some other grounds, that these aren’t considered in the 12 peremptory challenges. There are numerous, and the defendant, the defense and the prosecution both have the right to make any inquiry to the jury as to their feelings toward the case.”

The judge concluded:”[T]aking into consideration the recent case of People versus Sharp, where the defendant apparently does not have a constitutional right to represent himself, the Court finds that the ends of justice and requirements of due process require that the prior order permitting the defendant to represent himself in pro per should be and is hereby revoked. That privilege is terminated.”

Whenever I teach Faretta, I ask my students whether they think the judge honed in on the right things. My two cents are that the judge focused on all kinds of formalities to humble Faretta and dissuade him from representing himself when, in fact, he seemed to have a pretty good grasp of his rights and how to conduct his defense.

I was reminded of Faretta this week when courtroom podcasts threw in two cases in which defendants who faced very serious charges opted to go pro se, and if you’re looking for something to listen to, this is definitely worth your time. The first one is Quintin Nixon’s trial as reported on the Court Junkie podcast. A drug-fueled gathering of friends turned deadly, but there was a paucity of witnesses who saw the lethal shot fired, and Nixon’s decision to represent himself was newsworthy. Nixon was eventually convicted, and the judge scolded him for choosing to go pro se, which I’m not sure sits well with me. If the judge thought Nixon was incapable of representing himself, why was he allowed to do that? Moreover, I listened to the proceedings, albeit edited, on the podcast, and my impression is that Nixon did a fairly good job asking excellent questions on cross examination.

The second case has to do with the pretrial hearing of convicted murderer Lori Daybell who, after being convicted of and sentenced for the horrific murder of her two children (she took up with a guy, they started a doomsday cult), is now being charged elsewhere for the murder of her fourth husband (the one she got rid of to be with the doomsday cult leader). Daybell is representing herself. I’m quite impressed with how the judge ran the motion hearing; Daybell made some good arguments, especially regarding media access to the trial (this is bound to turn to a media circus) and the judge fostered some collaboration among the parties, toning down the deep horror and bitterness of the prosecution at having to do deals with someone who is, of course, presumed innocent of the crime but definitely not presumed innocent anymore of two other horrific crimes related to this one. The choice to go pro se here might not be too curious when one thinks that Daybell will likely spend the rest of her days behind bars and does not have much to lose, especially given the overwhelming evidence on the other side. What I wonder is how voir dire will go.

I encourage readers to listen to the two podcasts and think about whether they think that the defendants did a good job with their self-representation, and whether they think that the judge made allowances for the defendants’ lack of expertise. Would you recommend someone with that level of expertise, ingenuity, and self-investment to go pro se? Why or why not?

Rock in the Kasvah and Torture in the Kippah: b.Sanhedrin 81-84

The last few pages on the matter of death by fire start off sensibly enough, dealing with questions of dual punishment, and then things get a bit of the rails in an interesting way. I’m going to take it all up as one bloc, and resume with the second half of page 84 on Tuesday.

Things start off with the following mishna:

מַתְנִי׳ מִי שֶׁנִּתְחַיֵּיב בִּשְׁתֵּי מִיתוֹת בֵּית דִּין – נִידּוֹן בַּחֲמוּרָה. עָבַר עֲבֵירָה שֶׁנִּתְחַיֵּיב שְׁתֵּי מִיתוֹת – נִידּוֹן בַּחֲמוּרָה. רַבִּי יוֹסֵי אוֹמֵר: נִידּוֹן בַּזִּיקָּה הָרִאשׁוֹנָה שֶׁבָּאָה עָלָיו.

It’s a simple enough principle: if someone has been sentenced to two different types of death (whether for two offenses or for the same offense), you execute him with the more severe of the two (Rabbi Yosei dissents for issues involving same offense, where he thinks the execution method has to deal with the primacy of the offenses. We’ll get to this view later.) The principle is not dissimilar to the idea of concurrent sentencing today: a person sentenced for two offenses–say, 4 years for offense A and 6 years for offense B – might serve the sentences concurrently (i.e., 6 years – practically, the longer of the two sentences) or consecutively (6+4=10 years). In many jurisdictions, the default is consecutive sentences, and it is a judicial choice (per Oregon v. Ice). But you can’t really fault the Mishnaic logic here: ya can’t kill the same person twice. That seems pretty straightforward (“פְּשִׁיטָא!”). So how is the gemara going to complicate things?

Rava argues that the mishna deals with a habitual offender scenario: not someone who is jointly tried for two offenses, but rather someone who has already been tried and sentenced to death for the first strike (hee, literally) and, before the sentence was carried out, committed a second offense, punishable by a worse death. Rabba bar Natan cites a verse in support. It’s Ezekiel 18:10: “And he begets a violent son, a shedder of blood, who does to a brother any of these. And he had not done any of these, for he has eaten upon the mountains and defiled his neighbor’s wife, has wronged the poor and needy, has taken by robbery, does not return collateral, and has lifted his eyes toward the idols, has committed abomination.” Then, he lists the offenses: (1) begat, (2) defiled (3) lifted eyes toward idols, all of which are punishable by death, and the worst of the lot is the idolatry (stoning). But Rav Nahman Bar Yitzhak believes that all three are punishable by stoning anyway, and therefore the verse is a metaphor for righteousness.

There’s a side episode where we’re told that Raban Gamliel always cries when he gets to the aforementioned Ezekiel verse, because he thinks it’s a tall order to not fail any of the righteousness commands; Rabbi Akiva consoles him by saying that it’s enough to be righteous in one of those ways to escape death.

Let’s get back to Rabbi Yosei’s minority opinion. He apparently discusses a situation in which the same criminal act constitutes two offenses, e.g., if you sleep with your (1) mother in law who also happens to be (2) a married woman. If she was your mother in law before she was a married woman, the penalty for (1) applies. If she was a married woman before she became your mother in law, the penalty for (2) applies. But the problem is, of course, that one cannot be killed twice.

When we discussed page 80, we were introduced to the concept of the kippah, the domed torture chamber; here it makes a second horrifying appearance. Rav Yehuda explains that the kippah, at its highest, is at the person’s height, making it impossible for them to move around. Ugh. The mishna says:

מַתְנִי׳ מִי שֶׁלָּקָה וְשָׁנָה, בֵּית דִּין מַכְנִיסִין אוֹתוֹ לַכִּיפָּה, וּמַאֲכִילִין אוֹתוֹ שְׂעוֹרִין עַד שֶׁכְּרֵיסוֹ מִתְבַּקַּעַת.

Habitual offenders are to be taken to the kippah and fed barley until their stomach explodes. The problem is what counts as a “habitual offender”: does it have to be a particular offense that carries a heavenly punishment in the next world? Or do we need to offer third and fourth chances as well? The sages offer a variety of opinions:

  • Rabban Shimon ben Gamliel: lashes the first two times, kippah for the first.
  • Abba Shaul: Lashes for the first three times, kippah for the fourth.
  • Others: whether he gets extra warnings depends on how he takes the warning for the first and second times.

The kippah torture description gets even more gruesome in the next mishna. A man who kills someone and there’s some problem with the testimony (he hasn’t been properly forewarned, or the witnesses had different vantage point, or they differ on minutiae–the point is that the particularities of evidence law are not 100% in place, but we do know enough to hold the man culpable) is to be taken to the kippah. Rav Sheshet says: first you feed the person very little, to shrink their digestive capacity, and then you stuff them with barley. Ugh!

At this point, we get the weird mishna that’ll keep us busy until the end of the sugiyah:

מַתְנִי׳ הַגּוֹנֵב אֶת הַקַּסְוָה, וְהַמְקַלֵּל בְּקוֹסֵם, וְהַבּוֹעֵל אֲרַמִּית – קַנָּאִין פּוֹגְעִין בּוֹ. כֹּהֵן שֶׁשִּׁמֵּשׁ בְּטוּמְאָה – אֵין אֶחָיו הַכֹּהֲנִים מְבִיאִין אוֹתוֹ לְבֵית דִּין, אֶלָּא פִּרְחֵי כְהוּנָּה מוֹצִיאִין אוֹתוֹ חוּץ לָעֲזָרָה וּמְפַצְיעִין אֶת מוֹחוֹ בִּגְזִירִין. זָר שֶׁשִּׁמֵּשׁ בַּמִּקְדָּשׁ – רַבִּי עֲקִיבָא אוֹמֵר: בְּחֶנֶק, וַחֲכָמִים אוֹמְרִים: בִּידֵי שָׁמַיִם.

MISHNA: With regard to one who steals a kasvah, and one who curses with a sorcerer, and one who engages in intercourse with an Aramean woman, zealots strike him and kill him. Although the Torah does not say that one who performs one of these actions is liable to be executed, it is permitted for anyone who zealously takes the vengeance of the Lord to do so. In the case of a priest who performed the Temple service in a state of ritual impurity, his priestly brethren do not bring him to court for judgment; rather, the young men of the priesthood remove him from the Temple courtyard and pierce his skull with pieces of wood. In the case of a non-priest who performed the service in the Temple, Rabbi Akiva says: His execution is by strangulation, and the Rabbis say: He is not executed with a court-imposed death penalty; rather, he is liable to receive death at the hand of Heaven.

First order of business is to figure out what a kasvah is. Rav Yehuda thinks it’s some sort of ritual implement from the temple. He who curses with a sorcerer, Rav Yosef explains, is someone who does a dueling sorcery match. The mishna goes on to say that, if one sleeps with an Aramean woman, zealots may hurt him. The business of sleeping with an Aramean woman is, apparently, a metaphor for idolatry. Rabbi Hiyya opines that marrying a foreign woman is like marrying idolatry.

This leads to a story that riffs off the Pinhas/Zimri affair from Numbers 25: 1-9. Recap: Zimri had a Midianite woman, and to stop a plague that ravaged through the people, Pinhas, grandson of Aaron, stabbed Zimri and his wife to death. The gemara expands on the story:

״וַיֹּאמֶר מֹשֶׁה אֶל שֹׁפְטֵי יִשְׂרָאֵל וְגוֹ׳״. הָלַךְ שִׁבְטוֹ שֶׁל שִׁמְעוֹן אֵצֶל זִמְרִי בֶּן סָלוּא, אָמְרוּ לוֹ: הֵן דָּנִין דִּינֵי נְפָשׁוֹת וְאַתָּה יוֹשֵׁב וְשׁוֹתֵק?! מָה עָשָׂה? עָמַד וְקִיבֵּץ עֶשְׂרִים וְאַרְבָּעָה אֶלֶף מִיִּשְׂרָאֵל וְהָלַךְ אֵצֶל כׇּזְבִּי. אֲמַר לַהּ: הִשָּׁמֵיעִי לִי. אָמְרָה לוֹ: בַּת מֶלֶךְ אֲנִי, וְכֵן צִוָּה לִי אָבִי: לֹא תִּשָּׁמְעִי אֶלָּא לַגָּדוֹל שֶׁבָּהֶם. אֲמַר לַהּ: אַף הוּא נְשִׂיא שֵׁבֶט הוּא, וְלָא עוֹד אֶלָּא שֶׁהוּא גָּדוֹל מִמֶּנּוּ, שֶׁהוּא שֵׁנִי לַבֶּטֶן וְהוּא שְׁלִישִׁי לַבֶּטֶן. תְּפָשָׂהּ בִּבְלוֹרִיתָהּ וֶהֱבִיאָהּ אֵצֶל מֹשֶׁה. אָמַר לוֹ: בֶּן עַמְרָם, זוֹ אֲסוּרָה אוֹ מוּתֶּרֶת? וְאִם תֹּאמַר אֲסוּרָה, בַּת יִתְרוֹ מִי הִתִּירָה לָךְ? נִתְעַלְּמָה מִמֶּנּוּ הֲלָכָה. גָּעוּ כּוּלָּם בִּבְכִיָּה, וְהַיְינוּ דִּכְתִיב: ״וְהֵמָּה בֹכִים פֶּתַח אֹהֶל מוֹעֵד״.

Zimri persuaded the Midianite woman to marry him by bragging about his pedigree. He brought her to Moses, saying that Moses cannot deny him the woman, as he himself is married to a Midianite (Zippora, daughter of Jethro). Everyone started crying.

וּכְתִיב: ״וַיַּרְא פִּנְחָס בֶּן אֶלְעָזָר״. מָה רָאָה? אָמַר רַב: רָאָה מַעֲשֶׂה וְנִזְכַּר הֲלָכָה. אָמַר לוֹ: אֲחִי אֲבִי אַבָּא, לֹא כָּךְ לִימַּדְתַּנִי בְּרִדְתְּךָ מֵהַר סִינַי: הַבּוֹעֵל אֲרָמִית קַנָּאִין פּוֹגְעִין בּוֹ? אָמַר לוֹ: קַרְיָינָא דְּאִיגַּרְתָּא אִיהוּ לֶיהֱוֵי פַּרְוָונְקָא. וּשְׁמוּאֵל אָמַר: רָאָה שֶׁאֵין חׇכְמָה וְאֵין תְּבוּנָה וְאֵין עֵצָה לְנֶגֶד ה׳. כׇּל מָקוֹם שֶׁיֵּשׁ חִילּוּל הַשֵּׁם, אֵין חוֹלְקִין כָּבוֹד לָרַב. רַבִּי יִצְחָק אָמַר רַבִּי אֱלִיעֶזֶר: רָאָה שֶׁבָּא מַלְאָךְ וְהִשְׁחִית בָּעָם. ״וַיָּקׇם מִתּוֹךְ הָעֵדָה וַיִּקַּח רֹמַח בְּיָדוֹ״. מִיכָּן, שֶׁאֵין נִכְנָסִין בִּכְלֵי זַיִין לְבֵית הַמִּדְרָשׁ. שָׁלַף שְׁנָנָהּ וְהִנִּיחָהּ בְּאוּנְקָלוֹ, וְהָיָה נִשְׁעָן וְהוֹלֵךְ עַל מַקְלוֹ, וְכֵיוָן שֶׁהִגִּיעַ אֵצֶל שִׁבְטוֹ שֶׁל שִׁמְעוֹן אָמַר: הֵיכָן מָצִינוּ שֶׁשִּׁבְטוֹ שֶׁל לֵוִי גָּדוֹל מִשֶּׁל שִׁמְעוֹן? אָמְרוּ: הַנִּיחוּ לוֹ, אַף הוּא לַעֲשׂוֹת צְרָכָיו נִכְנַס.

Pinhas saw what happened and remembered the halakhah according to which intermarriage should lead to being killed. He saw that an angel was spreading the disease due to Zimri’s sin, so he decided to take this on. He stepped into the tribe territory, claiming that he should be able to sleep with the woman as well, and they allowed him–at which point he took advantage of being inside and killed Zimri and the woman. The killing is said to have been aided by divinity.

From here, the rabbis move on to discussing purities and impurities, particularly sexual ones. I should mention something important here, because it’s going to come up often in our learning together.

Daniel Boyarin has a fantastic book called Carnal Israel, which has to do with the way in which rabbinic texts engage with sex, which as you’ve already noticed, they do–often. Boyarin contrasts this with the tendency in other religious texts–especially Christian texts–to renounce the body, separate the sexes, avoid the topic.

Having now read Robert Harris’ Conclave, the basis for the fantastic thriller that won Best Adapted Screenplay at the Oscars, I understand what Boyarin is referring to. Lomeli, the hero, stays away from commenting on a fellow Cardinal’s possible imbroglio with a nun by taking to heart a passage in Pope John XXIII’s Journal of a Soul:

As for women, and everything to do with them, never a word, never; it was as if there were no women in the world. This absolute silence, even between close friends, about everything to do with women was one of the most profound and lasting lessons of my early years in the priesthood.

Contrast this silence with the incessant chatter of the rabbis on this topic. Boyarin argues that the rabbis welcomed and relished coupling and found it important. Not that addressing sexuality lacks domination and patriarchal ideology–there’s plenty of that to be had–but it’s a different sort of domination, one that directly engages with sex rather than circumventing the topic.

Since Boyarin, and others, have written plenty about this, I don’t feel like I have to. So we shall forego the rest of the impurities discussion and consider this sugiyah done. You all get a sticker, and we begin a new one on Tuesday!

Immersion, part III: Can Podcasts and the Criminal Process Meet Halfways?

In Part II of this series I looked at several inherent incompatibilities between true crime podcasts and the criminal process. My underlying assumption is that many true-crime podcasters who investigate cold cases and wrongful convictions (as opposed to the more entertainment-oriented ones, which merely recount crime stories) want to propel real change in how these cases are investigated and adjudicated. This may or may not overlap with the goal of having the podcast recognized as having propelled real change, which I’m sure matters as well. But here’s what worries me.

In 1995, Samuel Walker wrote a fantastic book called Taming the System, in which he addressed the struggle to contain and limit pockets of unfettered discretion in the criminal process: policing, bail setting, plea bargaining, and sentencing. Policing, as Joseph Goldstein explains in this great classic, largely happens under the radar, and very little control can be exercised over what individual police officers do in the streets when they have to decide on a course of action (the efforts, for example, to get officers to write up paperwork on their stop-and-frisk encounters have met with very partial success). What has been successful, though, is wrangling police activity into judicial review through constitutional tools. As Walker explains, the Warren Court’s project of incorporating the Bill of Rights against the states–culminating in constitutional criminal justice blockbuster cases like Mapp and Miranda–impacted the calculus police officers make when collecting evidence for a case. They now know that, for example, if they bust into a person’s home without probable cause and a warrant–even if they find an entire meth lab in there–the evidence will be suppressed. They now know that certain ways to pressure people into giving incriminating statements do not pay off because the confessions will be suppressed. What’s the point of gathering evidence if can’t be used at trial? Indeed, it’s because of these discretion-curbing effects that policing has, actually, become tamer than it was before the 1960s, and Walker believes that the exclusionary rule therefore acts as a watchdog over discretion and needs to be upheld (in a tragicomic twist, in Hudson v. Michigan, Justice Scalia wrote that the exclusionary rule has worked so well so far that it’s not needed anymore and cited Walker’s book. An irate Walker wrote an L.A. Times piece about how his work was misunderstood, memorably titled “Thanks for Nothing, Nino.”)

But I digress. The point is that, given that the police are invested in seeing their investigatory efforts come to fruition in the form of a criminal conviction, they are not motivated to find just any evidence: the exclusionary rule is designed to incentivize them to find usable, admissible evidence, that will survive motions to suppress. Which brings me to the question: can we expect the same set of incentives to work on podcasters?

In light of the podcast examples I’ve looked at here (the Adnan Syed case, the Paul Flores case, and especially the Michael Turney case) think we’re safe in making two assumptions about podcasters: one, that podcasters are interested in following up on the legal developments in the cases they cover (meaning that, if motions to suppress were to be filed in these cases, they would know and keep tabs on them), and two, that they generally want justice to be done (and preferably credited to them, at least in part, but that’s not the point.) In other words, they have very similar interests to cops.

The problem is, of course, that the incentive structure vis-a-vis law enforcement can be controlled through the Bill of Rights, while the incentive structure vis-a-vis podcasts cannot. Moreover, any restrictions on podcast reporting of cases would be violations of free speech. That some UK commenters have proposed this makes sense in the context of British law, where free speech protections are not unlimited and it is much easier to obtain relief on claims of libel and/or defamation (this, by the way, is the reason people are sometimes surprised to be sued for libel in the UK when they are US based; if jurisdiction can be established, the UK is much more favorable to plaintiffs.)

It would be ineffective to look for laws with enforcement “teeth” against true crime podcasters, nor is it desirable, I think; instead, it might make sense to propose a thick web of “best practices” and ethics advice that podcasters will have an interest in following for their own purposes. When I attended CrimeCon in 2003, there was a panel hosted by National Center for Victims of Crime Director Renée Williams, who was joined by Bill Williams of the “Mind Over Murder” podcast, survivor and author Kathy Kleiner Rubin, and journalist Brian Entin, which tried to do just that for the consumers of the genre. I was saddened to see the panel was not well attended, but thankfully it has been preserved for posterity:

Some of these best practices for consumers of the genre include: recognize that cases featured in true crime are real people, who can be impacted not only by the coverage, but also by community response; be suspicious of true crime itself (what are the motivations of the producers? why a certain case is being covered while others are not? etc.); think before you hit post; do not malign strangers with little evidence; require and expect victim voices in media covering their crime; do no harm (and leave families, who are public figures by necessity, alone); respect boundaries; don’t get sucked into the genre; and, turn your interest into real impact (e.g., volunteer at or donate to victim services organizations, hold unethical true crime producers accountable, provide DNA).

With some adaptations, many of these rules can help bridge the incompatibilities we reviewed in Part II. For example, refraining from speculating about a killer’s identity should not be limited to a mechanical disclaimer about the presumption of innocence at the beginning of episodes. This sort of speculation, which can taint jury pools later, can and should be discouraged by mindfully moderating the social media and online communities of podcast listeners. Flagging whether a piece of evidence would or would not stand up in court–and more importantly, why it might not–can calibrate public expectations from the criminal process. This is especially important when interviewing people: podcasters don’t necessarily have an obligation to cross-examine, but they might want to explain, after an interview, what questions a defense attorney might have asked the interviewee if they were to testify in court. But it also matters in terms of setting realistic expectations about DNA and other forensic evidence.

There are also some best practices for cops interacting with podcasters–namely, that the podcasters need to be made aware of things the investigating officers want to keep quiet for the benefit of the investigation, and that having to worry about the safety of a podcaster going rogue in search of definitive evidence can harm and derail, rather than aid, the investigation.

One of the questions I’m left with is whether, with the proliferation of podcasts and the possible saturation of the genre, we won’t see the wave of interest cresting. People seem to have insatiable appetites for true crime stories, but that might not be the case if they find that the stories sabotage the pursuit of justice. In the meantime, the least we can do is provide good legal consulting to podcasters, offer legal units in podcasting courses (of which there are many, like this one). Lawyers offering podcasters advice on legal liability might also initiate a conversation about the ultimate goal of the producers in the legal arena, beyond eyeballs and monetization. Since I’m not sure the public can be trusted wholesale with driving a demand for ethical podcasting, the demand has to come from the people who do this for a living and want their hard work to bear fruit in the courtroom.

Immersion, Part II: Are Podcasts and the Criminal Process Fundamentally Incompatible?

In my first post of this series, I set out to look at the interface between true-crime podcasts–an immersive medium, with democratized creatorship and potent suasion potential–and the criminal process, arguing that the increasing use of podcasts to galvanize public clamor for justice in cold cases and suspected wrongful convictions has not only benefits, but serious risks. I then presented three cases in which, despite (or because) the success of popular podcasts calling for justice, the criminal process either failed or was imperiled: Serial and Adnan Syed; Your Own Backyard and Paul Flores; Voices for Justice and Michael Turney. Examining these three cases, and a few others, has made me realize that there are several important ways in which podcasts and the criminal process are fundamentally incompatible; that these incompatibilities can hamper the criminal process; and that the proliferation of true-crime podcast affects these problems.

1. Compelling Facts vs. Admissible Evidence

What’s the most compelling way to prove something in an aural medium? To me, it’s an interview with a primary source, in which you can hear the facts from the horse’s proverbial mouth. Strong podcasts will include more such interviews, which is also ethical: some of the scandals in the true crime arena have involved allegations of plagiarism and misattribution. Unfortunately, what is a primary source in a podcast is an out-of-court statement, which cannot be offered at trial for truth of the matter asserted. On top of that, what makes for a willing, open interviewee–expressing empathy, rephrasing what the interviewee said, offering support–is the opposite of what might happen to the same interviewee on cross examination. While podcasters will sometimes fact-check interviews after the fact (e.g., ‘Ray said he wasn’t there. But we looked at the tape and he’s definitely in the picture”) or comment on the interview (e.g., “I’m not sure I believed Ray. He seemed evasive”), they rarely confront their interviewees on the spot the way opposing counsel would do at trial.

As to objects and forensics, one of the main problems with new media is the paucity of resources to test evidence and verify suspicions. Perhaps because physical evidence cannot be seen, only described, it invites readers to see it in the eye of their mind, and there it can acquire mythical proportions. Like many devoted listeners of the podcast Proof, which greatly contributed to the dramatic exoneration of Lee and Josh in Season 1, I was beside myself with excitement when, at the very end of Season 2–literally in the last few minutes of the last episode–Susan Simpson and Jacinda Davis, the podcasters, found the necklace of murder victim Renée Ramos, which had been lost in the courthouse and therefore never tested for DNA despite the high probability that it was the murder weapon. The suspect whose conviction the podcast revisits, Jake Silva, was Renée’s boyfriend, and when you think about it calmly, it is very likely that a DNA test will find his DNA on the necklace, which would not be probative at all in any direction; but calling attention to the object at a particularly dramatic point in the narrative and leaving the audience hanging with hope raises expectation that the necklace will turn out to be powerfully exculpatory evidence. Justice in the real world, though, moves very slowly, and it will take months before the necklace is tested.

There is also a selection bias that podcast audiences might not be aware of: cases are not randomly picked to be featured in podcasts. Rather, people who make their living producing immersive, engaging serial media select cases in which the personalities, artifacts, and primary auditory materials are compelling enough to draw attention and compete in what is becoming a very saturated market. What rates highly in garnering attention will not necessarily command the same power in a courtroom.

2. Dogged Pursuit vs. Acting within Constitutional Restraint

Anyone who has watched All the President’s Men, Spotlight, or She Said, has some appreciation for the dogged pursuit of sources and verifiable information that goes into a truly magnificent project of investigative journalism. The same things stand out in the podcast world: effort is a marker of quality. There is something very compelling about being invited on the bandwagon of an ongoing adventure, as opposed to hearing someone retell a story from cobbled secondary sources in the studio. Successful podcasts will evoke locations; Your Own Backyard host Chris Lambert is heard walking through the Cal Poly campus; Voices for Justice sees Sarah Turney speak to family members and friends about very sensitive issues; other podcasts, such as Counterclock and Proof see the hosts and producers knocking on doors and being rebuffed by witnesses and even by putative alternative suspects. It’s hardly necessary to point out that podcasters who pursue these encounters are taking on a not-inconsiderable amount of risk, and possibly requiring the police to take their safety into account. But the other important point is that many of these actions, which might be brazen for individuals, are not illegal (as long as they don’t cross the line into nuisance or harassment which, arguably, some do.)

The police, however, are not private people. Their actions are limited by the Fourth and Fifth Amendment. They have more powers than podcasters–they can search a person’s house–but using those powers requires adhering to constitutional limitations, like requiring certain levels of individualized suspicion and, sometimes, a warrant. I don’t think it’s an overgeneralization to say that podcasters tend to paint law enforcement with a negative brush, whether it’s a failure to solve a cold case or concerns that they railroaded the wrong person, but to assume failure to act requires understanding what hoops law enforcement is required to jump through before they act.

The issue of limitations and their absence pertains to the adjudicative phase as well. A podcast involving an unsolved crime or a wrongful conviction is an invitation to speculate about alternative suspects. How explicit that speculation is depends on the podcast’s approach, but a big part of the genre’s appeal is to encourage the audience to play with hypotheticals.

When investigating crime, of course, the police play with hypotheticals as well, but by the time a case gets to court, speculations are not usually encouraged. Indeed, sometimes there are constitutional limitations on speculation! Prosecutors are forbidden, for example, to draw the jury’s attention to the defendant’s decision not to testify (remaining silent is a Fifth Amendment right). Not every defense theory about an alternative suspect is going to be entertained by a judge (who has considerable discretion in compulsory process matters). Most defense strategies will shy away from speculating on an alternative scenario, and with good reason: all they need to do is poke holes in the prosecution’s story. Presenting a positive version of the events just invites poking holes in the defense story, which is not a jury trend the defense wants to encourage. Overall, then, criminal trials offer very limited room for speculation. Where podcasts open up the imagination, courts try to limit it as much as possible.

3. Taking Sides

A related wrinkle to the speculation issue is the question of how a podcaster wants to tell a story–namely, whether they’ll adopt an agnostic approach to the story and try on alternative scenarios for size, or position themselves ideologically on one side or the other. My impression of true-crime podcasts is that the better ones make an effort to seriously examine the weaknesses in the case even if they have a persuasive goal. Out of the three podcasts I’ve discussed here, Sarah Koenig’s Serial was the most agnostic one: even though Chris Lambert and Sarah Turney engaged in thorough investigation, both of them had a suspect in mind from beginning to end. But it is also important to say that Serial was followed by another podcast, Undisclosed, produced by Rabia Choudry, a lawyer and friend of the Syed family, which covers the same case but strongly advocates for Syed’s innocence.

What might be a virtue in a podcast advocating for justice can be a serious problem, for example, in prosecutorial discretion. I’ve argued elsewhere that some constitutional violations in criminal trials–most pronouncedly failure to disclosed exculpatory evidence to the defense–do not come from prosecutors who are being corrupt archvillains, but rather from people who have gotten too used to a way of thinking about a case that they develop tunnel vision and are unwilling to consider other possibilities. Because of this, I think that both prosecutorial offices and public defense offices should hire second-career folks who worked for the other side for a while, just to prevent calcified groupthink and introduce some flexibility and doubt into evidence assessment.

4. Outreach and Accessibility

This one is pretty obvious: the more viral a podcast goes, the better for the podcast–and, quite possibly, the worse for the legal case that comes from it. As Katrina Clifford explains in this beautiful, clear-eyed piece, a viral podcast can seriously contribute to contaminating a jury pool in ways that can be pretty insidious and go beyond individual jurors who listen to the podcast. As Clifford argues, podcasts have another important quality: they tend to generate communities of followers who become invested in a case over time, and whose conversations about the things that are front and center in their minds can spill over into other social contexts (as well as other media).

But there’s something else here that goes, I think, beyond what Clifford convincingly argues: the proliferation of true crime podcasts as a medium–not just the success of this or that individual podcast–in itself has an effect on how we see and address cases. It habituates people to think about criminal occurrences in a sensationalized, gossipy way, to speculate in wild directions, and to constantly share their opinions and impressions with others. To the extent that the demographic of podcast listeners (which is mostly female!) overlaps with the demographic of potential jurors, it invites a certain quality into jury deliberations that might override the care and adherence to the facts that jury instructions are supposed to encourage.

5. Context: When It Matters and When It Hampers

Finally, there’s the issue of framing. There’s a classic law and society article I really like, by my colleagues Austin Sarat and William Felstiner, called “Law and Strategy in the Divorce Lawyer’s Office.” In this article, the authors marshal evidence from 115 attorney-client conversations to show how the lawyers “legally construct” the clients, neutralizing issues that have tremendous emotional resonance for the clients and stripping complicated stories about failed relationships to the anodyne legal aspects that will be relevant. Law and Society scholars often complain about how the law keeps up appearances of disinterested neutrality, hiding the many ways in which the social and political context impact the outcome of legal cases. The law’s enterprise is to keep this context out; it’s seen as irrelevant to the determination of facts in an individual case.

Crime, however, doesn’t happen in a vacuum. How and why it happens, and how and why it is investigated (or not), is part of broader societal, cultural, and regional patterns. And many true crime podcasts are committed to placing crime within these contexts. Much of the democratizing effect of the platform is that women, people of color, and folks from other underserved demographics produce podcasts that seek to shine a light on crimes that suffer from lack of investigative energy and lower priorities (consider the “missing white female” syndrome issue that was so widely discussed during the media frenzy around Gabby Petito’s tragic murder). Whether or not justice is done, from a new media perspective, is not just a function of getting the facts right; it’s also a function of highlighting the broader context. I suspect that these broader sociopolitical trends were not insignificant factors in the Baltimore State Attorney’s decision to withdraw their support of Syed’s conviction–as well as in the subsequent administration’s decision to reopen the conversation and reinstate their confidence in the conviction. People who hope that the criminal process will not only provide some legal resolution, but also vindicate broader injustices and societal problems, are always going to be sorely disappointed with the outcome.

Transferred Intent and Hiding in a Crowd: b.Sanhedrin 79-80

Today and tomorrow’s pages address two issues on which there is plenty of writing in modern criminal law. The first is the issue of transferred intent. Usually, we look for a match between the physical elements (actus reus) of a criminal offense and the mental state (mens rea) required for committing it: we can’t find someone guilty unless we prove *both* beyond reasonable doubt. Murder offenses, then, require proof that A caused B’s death as well as proof that A intended to cause B’s death. The problem ensues when A intends to kill B but kills C, and the usual rule is that the intent transfers: since the law does not prefer B’s life to C’s, it’s the same to the law who A intended to kill, as long as they killed a person. But the mishna for today deals with scenarios in which the mismatch between intent and action is more profound: A intends either a lesser or a greater offense than the one he actually commits. In all these cases, the mishna says, A is not liable for the serious crime:

  1. A intended to kill someone for whom they would face a lesser punishment (e.g., intended to kill an animal and killed a person);
  2. A intended a non-lethal strike (say, at B’s hips) but made a lethal hit (say, at B’s heart);
  3. A intended a lethal strike, ended up making a non-lethal hit, but B died anyway (eggshell skull? a fluke?)
  4. A intended a non-lethal strike at B, an adult, but the blow landed on C, a minor (and thus more vulnerable), and killed him.
  5. A intended to lethally strike the minor, C, but mistakenly struck the adult, B, with a blow usually not hard enough to kill an adult, but B died anyway (eggshell skull? a fluke?)

So far so good. But the mishna implies that Rabbi Shimon disagrees, and the gemara elaborates:

רַבִּי שִׁמְעוֹן אַהֵיָיא? אִילֵּימָא אַסֵּיפָא, ״רַבִּי שִׁמְעוֹן פּוֹטֵר״ מִיבְּעֵי לֵיהּ! אֶלָּא אַרֵישָׁא: נִתְכַּוֵּון לַהֲרוֹג אֶת הַבְּהֵמָה וְהָרַג אֶת הָאָדָם, לַנׇּכְרִי וְהָרַג אֶת יִשְׂרָאֵל, לַנְּפָלִים וְהָרַג אֶת בֶּן קַיָּימָא – פָּטוּר. הָא נִתְכַּוֵּון לַהֲרוֹג אֶת זֶה וְהָרַג אֶת זֶה – חַיָּיב. רַבִּי שִׁמְעוֹן אוֹמֵר: אֲפִילּוּ נִתְכַּוֵּין לַהֲרוֹג אֶת זֶה וְהָרַג אֶת זֶה – פָּטוּר. פְּשִׁיטָא! קָאֵי רְאוּבֵן וְשִׁמְעוֹן, וְאָמַר: ״אֲנָא לִרְאוּבֵן קָא מִיכַּוַּונָא, לְשִׁמְעוֹן לָא קָא מִיכַּוַּונָא״ – הַיְינוּ פְּלוּגְתַּיְיהוּ. אָמַר: ״לְחַד מִינַּיְיהוּ״ – מַאי? אִי נָמֵי, כְּסָבוּר רְאוּבֵן וְנִמְצָא שִׁמְעוֹן – מַאי? תָּא שְׁמַע, דְּתַנְיָא: רַבִּי שִׁמְעוֹן אוֹמֵר, עַד שֶׁיֹּאמַר ״לִפְלוֹנִי אֲנִי מִתְכַּוֵּון״. מַאי טַעְמָא דְּרַבִּי שִׁמְעוֹן? אָמַר קְרָא: ״וְאָרַב לוֹ וְקָם עָלָיו״, עַד שֶׁיִּתְכַּוֵּון לוֹ.

Essentially, and by contrast to the modern criminal law view on this, Rabbi Shimon (and, as is later explained, Rabbi Hizkiyah) would exempt *everyone* who committed a homicide with transferred intent; he finds a biblical anchoring from this position in Deuteronomy 19:11, which addresses a murderer lying in wait–presumably for a specific person. That the biblical text intends to hold the ambushing murderer liable implies that in cases where things went awry there is no liability.

The rabbis disagree. Instead, Rabbi Yannai’s school limits the interpretation of the Deuteronomy verse to situations in which A was ambushing a particular individual as opposed to throwing a stone into a crowd. But even here, there are variations: in the bible, the killing of a gentile is a less serious offense than the killing of an Israelite (lovely), and thus to some rabbis the percentage of Israelites and gentiles in the crowd matters (even lovelier). But if there is one gentile in the crowd of Israelites, he is “fixed”, and thus the treatment is as if there were half and half. In any case, the rule of lenity prevails: the doubt works in favor of the would-be murderer (all’s well that ends well, I suppose. Ugh.)

All these exemptions make it tough to explain away Exodus 21:22, which deals with a situation in which brawling people who hurt a pregnant woman and kill the fetus are liable; the rabbis explain that the liability in such a case is expressed through money damages, not through execution. But the school of Rabbi Hizkiyah disagrees: they believe that the verse refers not to situations of accidental killings, but to situations of transferred intent, and therefore agree with Rabbi Shimon that there is no liability here at all.

***

This discussion of the rule of lenity connects us to the second issue that comes up in these pages: a mishna involving a murderer who hid himself in a crowd, the sinister version of Where’s Waldo. Since the killer cannot be identified, all must be acquitted (reasonable doubt). Except, Rabbi Yehuda believes that all of these people, including the unidentified guilty party must be taken to a place called a כִּיפָּה (a room with a dome?), and at least according to one translation, they will all die in that room (this is intractable logic and will be discussed in detail in a little bit). Similarly, people sentenced to a variety of deaths who mix together, making it impossible to match a person to their execution method, must all be killed in the most lenient form–except, as you’ll recall from our earlier pages, there is a debate over which is the more lenient form. The previous discussion did not quell this debate, which now reignites, but we won’t go there. Instead, we go on to try and understand the logic of the Where’s Waldo mishna–particularly Rabbi Yehuda’s bizarre suggestion that the whole crowd is to die in the domed room–with the help of three perspectives:

  • Rabbi Abahu cites Shmuel, who explains away the confusion by relating the mishna to a situation in which a murder defendant whose case has not yet concluded in a decision mixes up with a crowd of convicted murderers. While the majority opinion is that the person cannot be judged in absentia, and thus cannot be executed along with the convicts, Rabbi Yehuda presumably feels uncofmortable because the rest of the crowd is guilty.
  • Resh Lakish thinks that everyone, including Rabbi Yehuda, would agree that no one should be executed in the Where’s Waldo scenario; however, Rabbi Yehuda’s ruling applies to a goring ox whose verdict has not yet been given and who is hiding amidst a whole herd of convicted goring oxen.
  • Rava points out the difficulty of reconciling this position with the possibility that one of the sages’ fathers might be in the crowd. Rather, he says, the mishna refers to a scenario in which two people stand next to each other, and an arrow emerges from the two of them and kills a person; neither is liable, as we do not know who shot the arrow (the causation analysis in this situation would be a lot more complicated in modern law).

From here, the sages draw an analogy to goring cows who give birth to calves, which I personally do not find all that helpful or savory. So instead let’s take a look at one final little pearl. In the argument about which execution method is more severe, we’re told that Rav Yehezkel and his son, Rabbi Yehuda, disagree. The son says to the father (presumably in public): אַבָּא, לָא תַּיתְנְיֵיהּ הָכִי (“Dad, don’t teach it this way.”) This rudeness draws a rebuke from Shmuel:

אֲמַר לֵיהּ שְׁמוּאֵל לְרַב יְהוּדָה: שִׁינָּנָא, לָא תֵּימָא לֵיהּ לַאֲבוּךְ הָכִי, דְּתַנְיָא: הֲרֵי שֶׁהָיָה אָבִיו עוֹבֵר עַל דִּבְרֵי תוֹרָה, לֹא יֹאמַר לוֹ: ״אַבָּא, עָבַרְתָּ עַל דִּבְרֵי תוֹרָה״, אֶלָּא אוֹמֵר לוֹ: ״אַבָּא, כָּךְ כְּתִיב בַּתּוֹרָה״. סוֹף סוֹף הַיְינוּ הָךְ! אֶלָּא אוֹמֵר לוֹ: ״אַבָּא, מִקְרָא כָּתוּב בַּתּוֹרָה כָּךְ הוּא״.

Shmuel says, “Oi, long-toothed one, don’t talk to your dad that way. A baraita says that, if a son sees his dad violate the Torah, he must not say, ‘Dad, you violated the Torah,’ but rather indirectly point out, ‘Dad, the Torah says x.'” Other sages disagree with Shmuel – both formulations are rude, and instead it’s best to say to your dad something even more oblique, like, “Dad, this verse says x.’

We resume on Saturday with page 81.

Voices for Justice and the Necessities and Pitfalls of Media Pressure

One of the most notable effects of democratization through podcasting platforms is that not only can families get involved and active in supporting podcasts about their tragedies–they can become podcast producers themselves. One of the most notable examples in this space is Sarah Turney, producer and host of the successful podcast Voices for Justice and an activist for cold case resolution and forensic testing.

Sarah’s interest in true crime is personal: on May 17, 2001, her sister Alissa (in the above photo, taken by Sarah)–who had finished her junior year in high school that very day–disappeared, and the podcast was Sarah’s effort to reinvigorate the police investigation of what she came to believe was a no-body homicide. The last person to see Alissa, by his own admission, was Michael Turney (Sarah’s father and Alissa’s stepfather; he married Alissa’s mom when she was three years old, and she died when Alissa was nine, leaving him as a single parent to six children, the youngest of whom is Sarah). Michael reported picking Alissa up from school and arguing with her, after which she stormed off. Later, Michael and Sarah found a note in Alissa’s room, according to which she was going to California, but she left her personal belongings, including her cell phone, behind.

For the first few years after her disappearance, Alissa was regarded by the police as a runaway; it was only in 2006 that the investigation was altered to view her as a missing person. During the early years, Michael reported having received a brief phone call from Alissa, during which she swore at him and then ended the call.

In 2008, federal agents raided Michael’s home in search of evidence implicating him in Alissa’s disappearance, but they found something completely different and alarming in its own right: the largest cache of working bombs, weapons, and other explosives, ever found in the hands of an individual. Along with these items, they found a lengthy, rambling manifesto, in which Michael claimed that Alissa was murdered by assassins from his union, the International Brotherhood of Electric Workers, against whom he had grievances related to his employment. The bombs and weapons were part of his plan to blow up the union’s building.

Michael was charged for possession of the bombs in federal court, and his stalwart supporter was his daughter, Sarah, who was 13 years old when Alissa disappeared and by now was a young adult. Sarah helped Michael organize his defense even as she reeled from the shock of the federal evidence. But gradually, as she followed the case, Sarah came to see Michael in a different light, considering for the first time that he might have had something to do with Alissa’s disappearance. When she carefully floated this theory with her older brothers and other relatives, she was surprised to find out that most of them were convinced of his guilt and had plenty of stories to tell about his bizarre, sometimes menacing, behavior.

After thoroughly revisiting many incidents from her childhood, Sarah contacted the police department, urging them to revive the investigation into her sister’s disappearance. In 2017, she was reportedly told by a detective that the only way to prompt the police to make progress was to apply media pressure–and she did exactly that. Sarah launched her own podcast, Voices for Justice, in 2019, and in 2020 began posting on Tiktok, quickly acquiring a large audience.

The first thirty episodes of the podcast are devoted to a chronology of the family’s history, highlighting Michael’s odd behavior. Sarah highlights his uncaring behavior toward his wife–Sarah’s mother, who died of cancer–and even implies that he might have hastened her death. As to his other children, especially Alissa, Michael was depicted as exhibiting controlling and menacing behavior, which included festooning the family home with surveillance cameras, recording phone calls, closely scrutinizing Alissa’s activities and relationships, and fashioning strange “contracts” regarding Alissa’s behavior that he made her sign (including, bizarrely, a statement that “[m]y father, Mike Turney, has never physically or sexually abused me at any time.”) Sarah also analyzed several instances in which Michael said things, or behaved in ways, that suggested an inappropriate sexual interest in Alissa, and some off-hand comments from Alissa herself about his being a “pervert” which suggested sexual abuse. Michael exhibited unreasonable hostility toward the idea of Alissa having a boyfriend, and increasingly described her, after her disappearance, as having severe learning disabilities and thus requiring close surveillance–a description that Sarah contends is unfounded and untrue. During one confrontation, Michael told Sarah that he would tell her the truth about Alissa on his deathbed.

In 2020, the podcast had its desired effect: after almost 20 years, Michael Turney was arrested and charged with the murder of his stepdaughter. Sarah paused her reporting of the case, pivoting the podcast to highlighting other unsolved murder and disappearance cases (usually devoting an episode or two to each case). In her dual capacity as a family member and podcaster, she has advocated for ethical reporting of true crime; while acknowledging that true-crime podcasts are “entertainment”, she has urged fellow creators to be sensitive to the concerns of victims, and the public to be mindful of theories and speculations they spew in forums discussing true-crime new media.

Michael’s trial, however, ended on a different note. Dateline NBC summarizes the trial and its aftermath:

Jurors in that Phoenix courtroom heard five days of testimony from witnesses in the state’s case — including two Phoenix Police Department detectives, Stuart Somershoe and William Andersen, and Alissa’s boyfriend at the time of her disappearance, Jonathan Laakman. 

The state rested their case on the sixth day of the trial — Monday, July 17 — after two days of testimony from Det. William Andersen. At that time Michael Turney’s defense attorneys, Jamie A. Jackson and Olivia Hicks, submitted a motion to the judge for an acquittal, citing Rule 20 of the Arizona Rules of Criminal procedure, which states that “the court must enter a judgment of acquittal… if there is no substantial evidence to support a conviction.”

Defense attorney Olivia Hicks argued that the state did not present any physical evidence that Alissa Turney is dead and their client caused her death. In response to the defense’s motion, Deputy County Attorney Vince Imbordino told the judge that Alissa Turney had been a 17-year-old girl with family and friends, prized possessions and she would have been in contact if she had been alive. 

Judge Sam Myers ruled in favor of the defense and the jurors were relieved of their duty. All charges in the case against Michael Turney have been dismissed and he was released from custody on Tuesday, July 18.

Turney is now suing the police department and the prosecution, though he could not find a lawyer to take the case.

Sarah promises to produce an in-depth serial podcast providing more information about the case, as well as her take on the trial (this will be released, if I understand correctly, as the second season of another podcast produced by Sarah, Media Pressure, whose first season was devoted to the disappearance of Maura Murray, a long-time cause célèbre of true crime followers.) I was unable to follow the trial closely, and am therefore far from an expert on the minutiae of the evidence presented and how similar–or different–it was from the evidence offered in the podcast (by contrast to Chris Lambert in Paul Flores’ trial, Sarah attended Michael’s trial as Alissa’s sister, rather than as a member of the press, and therefore obviously did not report on the progress of the trial), so I don’t want to speculate. There are, however, some remarkable features to the interface of media and police investigation here, that I think are notable.

The first one is that the police itself insinuates that investigative progress is contingent upon public interest and pressure–“squeaky wheel gets the grease,” if you will. This has a few effects on the field of true crime podcasting, some positive and some negative. For every case that goes viral in the new media arena, there are thousands of unsolved cases equally deserving of assiduous investigation that will not receive attention if the criterion for progress is media pressure. It’s true that the availability (and democratization) of the podcast medium means that victim families are not dependent on networks or professional producer to share their stories with the public; Sarah’s is an example of a family member taking control of the narrative around their loved one’s disappearance or murder, and she is facilitating a similar journey for Maura Murray’s sister Julie. Still, not every family member will have the wherewithal, journalistic chops, storytelling talent, and practical means to draw attention to their case so effectively, and the police statement on the importance of media pressure implies that such arbitrary issues will set police priorities.

Second, and relatedly, the proliferation of true crime podcasts, some seeking to replicate the success of Serial and other early examples and some to draw attention to specific cases, raises the risk of market saturation. If all cases are important, I worry that no case will be important, and these cases will produce diminishing returns in investigations and prosecutions.

Third, for a lay audience (or even for legal professionals who are not up to date with case technicalities) it is hard to judge whether a podcast that reflects dogged, detailed journalistic work–Sarah’s is certainly that, and over its first thirty episodes mines an incredible amount of family videos, documents, and objects, as well as testimonies and conversations–has marshaled the kind of evidence that will be (1) admissible and (2) persuasive in court. A podcast, like a documentary, is not an unvarnished reflection of the messy reality: it is a work of art that tells a story, and even if the storyteller aims at being as objective as possible in assessing the strength of the evidence, it will provide a certain framing. The medium’s immersive qualities will absorb listeners, who will later be surprised and disappointed that the story does not play out in court the way it played out in the podcast. A podcast doesn’t feature cross-examination; there is no counternarrative, nor is there a concerted effort to highlight the gaps in the story (and even if there is, people will focus on what they hear rather than on what they don’t).

Fourth, unfortunately, there is the fact that even devoted prosecutors will never care as much about the minutiae of a murder case as the victim’s family. Incidents that come to loom large in the minds of loved ones might not occupy as large a place for a prosecutor trying to tell a concise, limited story, over a limited number of days, to twelve strangers who are not engaging with the narrative out of free choice. There’s a classic law and society paper by Austin Sarat and William Felstiner called “Law and Strategy in the Divorced Lawyer’s Office”, in which they show how lawyers hear their clients tell a complicated, painful family story and reduce it to what is and is not legally relevant. A podcast wants to tell us the former; a legal proceeding is going to sift through it to produce the latter. It will, by necessity, not be as engaging and absorbing as a moving story told by the people who care about it the most.

I don’t know all the details of how, and why, the charges against Michael Turney were dismissed; no-body homicides are notoriously difficult to prosecute, as the main piece of forensic evidence–the body–is missing. I look forward to hearing Sarah Turney’s take on the case. But I do think that it is important, for both creators and audience, to be clear-eyed about the fundamental incompatibilities between media and investigation, no matter how much the people in charge of the latter encourage families to utilize the former.

The Eggshell Skull and Other Causation Challenges: b.Sanhedrin 78

Today’s page features two recognized problems in criminal causation of homicide: the issue of multiple contributing factors and the problem of a preexisting condition that hastened death.[1] Today, issues of medical causality often open the door to expert testimony about the cause of death, but the forensics are not the only or even dominant factor; criminal law theories factor in criminal energy, deterrence, and contribution as well.

Let’s start with the case of multiple assailants. Many jurisdictions hold multiple defendants charged for the same homicide liable, even if the blow that caused the death was proximately caused by a specific perpetrator–and even if the other defendants did not actually participate in the beating. In British law, this is governed by the Joint Enterprise doctrine (critiqued in this Guardian article); U.S. federal law recognizes the contributions of multiple accomplices in various capacities because “society fears the crimes of
several more than the crimes of one.”

The Talmud doesn’t seem to adopt similar ideas of broad responsibility. Consider a scenario in which ten people beat up a man to death with sticks:

תָּנוּ רַבָּנַן: הִכּוּהוּ עֲשָׂרָה בְּנֵי אָדָם בַּעֲשָׂרָה מַקְלוֹת וָמֵת, בֵּין בְּבַת אַחַת, בֵּין בְּזֶה אַחַר זֶה – פְּטוּרִין. רַבִּי יְהוּדָה בֶּן בְּתִירָא אוֹמֵר: בְּזֶה אַחַר זֶה, הָאַחֲרוֹן חַיָּיב, מִפְּנֵי שֶׁקֵּירַב אֶת מִיתָתוֹ.

The rabbis think no one can be held responsible for the death, which cannot be causally tied to any particular strike. Rabbi Yehuda ben Betira believes the last to hit is responsible, as he hastened the death. Rabbi Yohanan believes that both perspectives refer to possible interpretations of Leviticus 24:17: וְאִ֕ישׁ כִּ֥י יַכֶּ֖ה כׇּל־נֶ֣פֶשׁ אָדָ֑ם מ֖וֹת יוּמָֽת׃ (a man who kills “a human soul” shall be put to death). The verse is interpreted as referring to an entire human soul (as opposed to someone whose life is already in peril). Because of this, two sister rules reach opposite conclusions: there’s a rule about killing a man who has a wound that will kill him anyway within a year (הוֹרֵג אֶת הַטְּרֵיפָה), in which the killer is not liable (as the wound is visible and not attributed to the killer). And there’s a rule about killing a man who is dying from an illness caused by the heaven (גוֹסֵס בִּידֵי שָׁמַיִם), in which the killer is liable for hastening the death (as the cause of death is not visible). The rabbis think that our multiple assailants case is akin to the former, and Rabbi Yehuda thinks it is akin to the latter. Rabbi Yehuda’s logic also bolsters a scenario discussed by Rav Sheshet: הַמַּכֶּה אֶת חֲבֵירוֹ וְאֵין בּוֹ כְּדֵי לְהָמִית, וּבָא אַחֵר וֶהֱמִיתוֹ – a person who inflicts a non-lethal blow followed by a person who inflicts a lethal blow. Following Rabbi Yehuda’s logic requires holding the second striker liable.

It looks like the absolution of the man who killed the person with the lethal wound is not the function of a moral principle, but rather of lack of evidence: Rava believes that, if the killing occurs in view of the court (and thus there is unimpeachable testimony – עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ), even this killer should be held liable. But what if the killing occurred in the presence of witnesses who have been impeached? Here, Rav Ashi suggests that the impeached witnesses should not be killed, as the victim would have already died.

I’m skipping a few twists and turns (which deal with the innocence or guilt of animals who kill) to get to the next proximate cause issue:

מַתְנִי׳ הַמַּכֶּה אֶת חֲבֵירוֹ, בֵּין בְּאֶבֶן בֵּין בְּאֶגְרוֹף, וַאֲמָדוּהוּ לְמִיתָה, וְהֵיקֵל מִמַּה שֶּׁהָיָה, וּלְאַחַר מִכָּאן הִכְבִּיד וָמֵת – חַיָּיב. רַבִּי נְחֶמְיָה אוֹמֵר: פָּטוּר, שֶׁרַגְלַיִם לַדָּבָר.

Here, the rabbis address a mishna that deals with an issue known in criminal causation as the Thin Skull doctrine. The idea is that assailants should be responsible for killing people whose preexisting conditions made them more vulnerable to the blow (even if this fact is unknown to the assailant), but not when the sensitivity is very extreme. But Talmudic sages had no access to anything resembling modern forensics, and so, their parsing out of the mishna requires speculating about the victim’s condition only from what can be seen externally.

The basis for Rabbi Nehemiah’s absolution of the killer here is Exodus 1:19, a case in which someone suffers a beating and is later seen walkinr around in the market. In the biblical case, the striker is absolved. Rabbi Nehemiah things this case should be dealt with the same: the person seemed to be getting better, and thus presumably *was* getting better, and if he ended up dying, causality is undermined. There are rabbis who disagree with Rabbi Nehemiah, and require that the killer be arrested (מְלַמֵּד שֶׁחוֹבְשִׁין אוֹתוֹ) until the victim’s fate can be ascertained. This, by the way, is not their innovation: there are some biblical verses in which pretrial detention in cases of uncertainty is required, such as a Shabbat-violating wood gatherer and a blasphemer (these analogies, though, are imperfect: the wood gatherer was to be killed – they just could not decide on how to do it – and the detention of the blasphemer seems to have been an emergency measure).

The following discussion examines a few twists and turns in the victim’s fate, based on two variables: the initial prognosis and what ended up happening. Here’s the rest of it:

בִּשְׁלָמָא לְרַבִּי נְחֶמְיָה, הַיְינוּ דִּכְתִיבִי תְּרֵי אוּמְדָּנֵי: חַד – אֲמָדוּהוּ לְמִיתָה וְחָיָה, וְחַד – אֲמָדוּהוּ לְמִיתָה וְהֵקֵל מִמַּה שֶּׁהָיָה. אֶלָּא לְרַבָּנַן, תְּרֵי אוּמְדָּנֵי לְמָה לִי? חַד אֲמָדוּהוּ לְמִיתָה וְחָיָה, וְחַד אֲמָדוּהוּ לְחַיִּים וָמֵת. וְרַבִּי נְחֶמְיָה, אֲמָדוּהוּ לְחַיִּים וָמֵת – לָא צְרִיךְ קְרָא, שֶׁהֲרֵי יָצָא מִבֵּית דִּין זַכַּאי. תָּנוּ רַבָּנַן: הַמַּכֶּה אֶת חֲבֵירוֹ, וַאֲמָדוּהוּ לְמִיתָה, וְחָיָה – פּוֹטְרִין אוֹתוֹ. אֲמָדוּהוּ לְמִיתָה וְהֵקֵל מִמַּה שֶּׁהָיָה – אוֹמְדִין אוֹתוֹ אוֹמֶד שֵׁנִי לְמָמוֹן. וְאִם לְאַחַר כֵּן הִכְבִּיד וָמֵת – הַלֵּךְ אַחַר אוֹמֶד הָאֶמְצָעִי, דִּבְרֵי רַבִּי נְחֶמְיָה. וַחֲכָמִים אוֹמְרִים: אֵין אוֹמֶד אַחַר אוֹמֶד. תַּנְיָא אִידַּךְ: אֲמָדוּהוּ לְמִיתָה – אוֹמְדִין אוֹתוֹ לְחַיִּים. לְחַיִּים – אֵין אוֹמְדִין אוֹתוֹ לְמִיתָה. אֲמָדוּהוּ לְמִיתָה וְהֵקֵל מִמַּה שֶּׁהָיָה – אוֹמְדִין אוֹתוֹ אוֹמֶד שֵׁנִי לְמָמוֹן, וְאִם לְאַחַר כֵּן הִכְבִּיד וָמֵת – מְשַׁלֵּם נֶזֶק וָצַעַר לַיּוֹרְשִׁים. מֵאֵימָתַי מְשַׁלֵּם? מִשָּׁעָה שֶׁהִכָּהוּ. וּסְתָמָא כְּרַבִּי נְחֶמְיָה.

If the victim was expected to die but recovered, the assailant is exempted; if the recovery is partial, the assailant pays damages. But if, after the court’s determination, the victim suddenly got worse and died, there’s a dispute: Rabbi Nehemiah believes that the assailant gets off because of the trial is over (double jeopardy!). Other rabbis believe that you reopen the case, as the intermediate assessment was erroneous and the earlier assumption that the victim was to die was correct. A different baraita requires a reassessment of the victim as his condition changes; if the assailant paid the victim damages after a partial recovery and then the victims died, the assailant pays damages to the victim’s family. The damages cover for the pain and suffering since the assault, rather than dating back to incurring the preexisting condition.

[1] The multiple assailants issue is the last one I studied with my father when he was hospitalized. May any merit derived from our learning today exalt the memory of my dad’s wisdom and goodness.

Your Own Backyard and the Contamination Risks of Police/Media Symbiosis

On Friday, May 24, 1996, Kristin Smart, a freshman at Cal Poly, attended an off-campus party. By around 2am, Kristin was so drunk that she could not walk unsupported and needed help getting back home. A few friends escorted her part of the way, and one student who was walking with them, Paul Flores, offered to take her to her dorm. From the condition of her dorm room the following morning, it was evident that she had never gotten back, and she has not been seen ever since, nor has her body been found.

After a missing-person report was filed with the campus police on May 28, the San Luis Obispo Sheriff took over the investigation, conducting an extensive search for Kristin, but she was never found. From the very early stages of the investigation, Paul Flores, a poor student on the verge of expulsion who had been reported for stalking by various women, was regarded the prime suspect. Flores initially claimed to have parted with Smart outside her dorm building; at his 1997 interrogation he took the Fifth. At the time, Smart’s family filed a wrongful death lawsuit against him, and the suit has been stayed by judges ever since.

Over the years, a revolving door of Sheriffs took over the investigation, executing numerous search warrants, but there were long stretches in which the investigation lulled. Throughout the years, numerous private parties and entities (including a man from North Carolina and a local newspaper publisher) attempted to revive the investigation, occasionally sticking flyers near Paul Flores’ house. His neighbors were all aware that he was the suspect in an unsolved murder, and described him as an awkward man who kept to himself except when drunk (which was often), when he became belligerent and physical toward women.

On September 29, 2019, a recording engineer and singer-songwriter named Chris Lambert, who grew up seeing billboards with Kristin Smart’s image on them, decided to delve into the case and started a podcast called Your Own Backyard. The first episode features a conversation between Lambert and the Smart family, in which they give him their blessing for his project. In Episode 2, broadcast on October 6, he identifies Flores as the only suspect in the case. The first ten episodes of the podcast covered the events before and after Smart’s disappearance, and offered some additional information: Flores’ involvement in several violent rapes and sexual assaults in the years since the murder, neighbors’ reports of his parents’ suspected involvement in burying and/or moving the body, and incriminating statements Flores was said to have made to fellow skaters at the skate park. Among the most striking testimonies Lambert was that of a coworker of Paul’s mother, Susan Flores, recalling that the mother had complained one night about not sleeping well because her her husband, Ruben Flores, had gotten up and left their home after receiving a call. Even more striking was the second claim: a former tenant in Susan Flores’ home heard an alarm sound at 4:20 a.m. daily — possibly a wakeup alarm Smart set since she used to report to her job as a lifeguard at the Cal Poly pool at 5 a.m, suggesting that Smart, or her belongings, were buried in the mother’s backyard at least for that time.

In February 2020–a few days after Lambert broadcasted an interview with the Sheriff–the authorities executed search warrants at four locations in California and Washington State, including at Paul Flores’ home, and recovered various “items of interest.”

On November 25, 2020, Lambert broadcasted an episode titled “The 16-Hour Gap,” in which he examines, in great detail, Flores’ movements during the weekend around Smart’s murder. The episode stops shy of making speculations, but does present facts that suggest a body being moved using a truck that had its truck bed replaced.

In March 2021, investigators used cadaver dogs and ground-penetrating radar to search Ruben Flores’s back yard in Arroyo Grande, finding some indications of human DNA too old and corrupted to test. A month later, on April 13, 2021, Paul and Reuben Flores were both arrested; the son was charged with murder and the father of being an accessory after the fact. Lambert reported on these developments in two episodes released on the same day (July 6, 2021), titled The Beginning of the End 1 and 2.

The son and father were tried jointly in Monterey County (there was a change-of-venue motion) with two sets of juries, which facilitated the introduction of out-of-court statements and other evidence that would be admissible only against one, but not the other (this solves the codefendant confession problem posed by the Confrontation Clause and obviates the need to sever trials.) Lambert, who attended the trial but obviously could not broadcast from within the court, continued to make and broadcast podcast episodes about the trial throughout its 10 weeks, which along with some concluding interviews with the prosecutors, some of the jurors, and the Smart family, add up to 17 additional episodes. Flores was convicted and, in Marc 2023, sentenced to 25-to-life; his father was acquitted.

The trial revealed the extent to which the police and Lambert collaborated in the last, fruitful investigation. Lambert was on location when pivotal events, such as the execution of search warrants, occurred; he could not have known about these had he not been notified by the police. Moreover, the probable cause needed for executing those warrants came from testimony gathered by Lambert, not by the police.

The latest news are that, in late October 2024, Flores filed an appeal. KSBY reports that the appeal is based, at least in part, on jury contamination issues. Juror 237, the brief argues, had several anxiety attacks during the trial, for which she blamed the defense attorney, and even revealed to the bailiff “that her neutrality had begun to waver.” The reporting now describes the juror as number 273, but it seems like they are referring to the same person; the brief further indicates that:

[J]uror No. 273 admitted she knew people who listened to a viral podcast detailing the case, but that she discouraged discussion with those people about the matter. The defense counsel claimed the juror’s comment indicated that she had discussed her involvement in Flores’ trial and requested her removal for a fourth time. However, the brief states the trial court denied the request, saying that “it would be strange if no one knew why” juror No. 273 had missed an extensive amount of work due to the trial.

These allegations raise concerns about jury contamination, which are rooted in the fact that closing arguments–and some of the questions during witness examination–mentioned “the podcaster.” I worry very much that Lambert’s thorough, hard work might become the victim of its own success, and that the concerns about jury contamination could support this appeal.

The most painful part of this affair is that, in the years following Smart’s disappearance, Paul Flores turned out to be a terrifyingly violent man, who has been investigated for dozens of rapes, with three incidents–one in Redondo Beach, two in Los Angeles–almost leading to prosecution, but ending with nothing for reasons that are vaguely given in this LA Times article and that I simply cannot comprehend. The DNA found in the rape survivors matches his. In a 2020 raid of his home, police found a computer file named “Practice,” which contained video evidence of numerous instances in which Flores raped and sodomized women, many of them clearly appear unconscious. These videos, and plenty of evidence about his previous efforts at intoxicating women and then raping them could be offered at any sexual assault case against him as an exception to the evidentiary rule against former criminal behavior, because the incidents are so similar that they might as well be his calling card. If released following a successful appeal, and absent a merited and justified prosecution for the unrelated rapes, Flores, who is now in his late forties, would still be capable of violently assaulting women. This is exactly the opposite of what Lambert, and everyone who cooperated with his project, would want as an outcome.

Immersion: Three Cautionary Tales of Podcasts and the Criminal Process, Part I: Introduction

I love podcasts. I think a lot of people do, for reasons that have to do both with succumbing to the cultural moment we are in and feeding the parts of our souls that yearn to get away from said moment. They offer a refreshing contrast to the binge/stream quality of Prime, Netflix, et al, to the immediacy of the multisensory assault on our imagination and emotional independence. Listening to a crime podcast does not result in the cognitive hangover that I get from watching a three-part crime documentary. In many ways, it is a medium those of us who were radio-struck grew up with; every summer day, in the early afternoon, I used to listen to classic children’s literature, read on the radio by Israel’s best storytellers. That’s how I was introduced, for example, to The Hound of the Baskervilles, and fell in love with Sherlock Holmes. In that respect, experiencing a story by hearing it is not new. Nor is podcasting itself new–the pioneering examples appeared in 2005. But there are some important things that make podcasting in the last decade or so somewhat different. For one thing, the possibility of producing a podcast democratizes content creation and sharing: podcast listeners become podcast producers, adding not only to the proliferation of the medium but also to the diverse perspectives represented. In presenting a personal perspective–speaking intimately, straight into the ear of a listener–podcasts have a self-reflexive, self-conscious element that radio shows never had. In the context of identities, and the role they play in media brand building, podcasts can be “an expression of cultural otherness – an outsider-ness – providing an expressive outlet for those unable to be heard, and a meaningful cultural nexus for those outside of mainstream radio listener communities.”

Ever since Serial, the first crime podcast–really, the first podcast ever, I think–to go viral debuted, I’ve noticed the vast popularity and influence of the medium. We know that consumption of podcasts and crime documentaries alike heightens fear of crime and produces crime-prevention behaviors, though many people believe that listening to these materials innoculates them against fear of crime. While people who listen to crime podcasts also watch crime documentaries–entertainment choice is more a function of genre than of medium – long-form investigative podcasts are especially immersive: they are aural, of course, which gets our neglected imagination the workout it so needs and craves, and the serial structure of the podcast gets you hooked and anxious for the next “fix”. In that respect, true-crime podcasts are a true medium-message marriage. As Paul Kaplan and Daniel LaChance explain in Crimesploitation, engaging with true-crime content is seductive because we get sucked into participating in morality tales, mocking the unfortunate, marveling at them, and at times rooting for them. Exploring that already immersive genre through an immersive medium is what makes these podcasts so powerful.

There’s plenty of research that critically examines how these podcasts frame crime stories, characters, offenders, exonerees, and victims, with attention to race, gender, and other rubrics. Some of this research criticizes the medium for minimizing, or even sensationalizing, trauma; some of it shows that they tend to portray law enforcement in a negative light. My interest in this project is in examining the ways in which the medium engages with the official criminal process.

It’s hard to argue with the fact that podcasts have drawn public attention to cases widely perceived as miscarriages of justice, and that the vast public interest resulting from the podcast has propelled the criminal process forward by reopening cold cases and/or fueling arguments for postconviction review. It’s also hard to argue with the fact that, while quality varies considerably among podcasts, there are good people doing serious work, investing effort in obtaining primary sources, and doing dogged journalism the way old-school journalists would. What gets less attention, I think, is the question how case coverage by a podcast can affect ongoing police investigations and subsequent legal proceedings, and this is where I think there’s room for rethinking how we do things. It’s not going to be possible to regulate who gets into podcasting and how they do what they do; podcasters are private people with First Amendment rights. Moreover, the U.S. does not have a sub judice rule, which gives people a lot more freedom to comment on ongoing legal proceedings. Nevertheless, at least shining a light on the possible problems that can ensue from the presence of a popular podcast in the legal arena might be valuable in that it might help the true crime community articulate some sort of minimal “best practices”.

The heart of the problem lies in the fundamental mismatch between the journalistic project and the investigative/adjudicative one, which has five different aspects: the goal of finding out what happened vs. the goal of collecting evidence; the goal of dogged pursuit vs. the goal of acting within constitutional restraints; “taking sides” and speculating as a narrative choice vs. as a legal obligation; outreach and accessibility as an asset vs. as a problem; and the construction of finality as the arrival at factual vs. legal truth.

I’m going to go about this in several installments. The first order of business is to relate the story of three extremely popular podcasts and the legal aftermath of the cases they examined: Sarah Koenig’s Serial and Adnan Syed’s postconviction review of his conviction for the murder of Hae Min Lee; Voices for Justice and Sarah Turney’s investigation of the disappearance of her sister, Alissa Turney, of which Sarah accused her father, convicted explosives hoarder Michael Turney; and Your Own Backyard, Chris Lambert’s investigative podcast of the disappearance of Kristin Smart and the subsequent trial of Paul and Reuben Flores for her murder. I’ve already written my thoughts about the latest legal developments in the Syed trial, and have yet to comment on the other two. In all three cases, the ensuing problems were not an issue of unprofessional journalism or ineptitude; all three works are examples of detailed, responsible hard work by podcasters, in one case the victim and suspect’s family member and in another a podcaster working closely with the victim’s family. In all three cases, the legally requisite disclaimers were made. However, I argue that all three podcasts were victims of their own success because of the aforementioned fundamental mismatches between the journalistic project and the adjudicative one.

After discussing all three cases, I want to address the aspects of the mismatch one by one, explaining the ways in which podcasting is compatible and incompatible with the legal process–at both of the latter’s phases, but more so at the adjudicative phase than the investigative one.

Based on the issues I generalize from the podcast, I plan to try and propose an ethical code for true crime podcasters, as well as some best practices for police officers and lawyers operating alongside podcasters in the criminal law field. I suspect some of the incompatibility between journalism and law is unavoidable and will continue to plague cases highlighted by podcasts. I also want to talk a bit about what these podcasts do to cases that are *not* covered by podcasts.

Peculiar Murders: b.Sanhedrin 77

PROFESSOR CALLAHAN:Ms. Woods, would you rather have a client who committed a crime malum in se or malum prohibitum?
ELLE: Neither.
CALLAHAN: And why is that?
ELLE: I would rather have a client who’s innocent.
CALLAHAN: Dare to dream, Ms. Woods. Ms. Kensington, which would you prefer?
VIVIAN: Malum prohibitum. Because then the client would have committed a regulatory infraction as opposed to a dangerous crime.
CALLAHAN: Well done, Ms. Kensington. You’ve obviously done your homework. Now let us look at malum prohibitum a little more closely. It has been said…
He sees Elle’s raised hand.
CALLAHAN: Yes, Ms. Woods?
ELLE: I changed my mind. I’d pick the dangerous one ’cause I’m not afraid of a challenge. –Legally Blonde

One of the mainstay features of the first year of law school is an assortment of bizarre hypotheticals about unusual murders. The reason law professors make up these strange scenarios is to train students in understanding principles of action, omission, and especially indirect causality–an unsavory but effective way to develop lawyerly thinking. Much as I understood the pedagogical value of this stuff, I kind of recoiled from inculcating people with outlandish scenarios when the bread-and-butter cases they would encounter in practice called for more attention; this is partly why I taught substantive criminal law very differently in 2005-2006 and much later, in 2012. But Talmudic sages live for this stuff, because they feel an obligation to build a towering shrine of logic for every word in the Torah and in the Mishna, and the latter source holds that a murderer is to be decapitated. So, here come mountains of expounding on who counts as a murderer and who does not.

At common law and most U.S. jurisdictions, a person is culpable of homicide by act or omission (the omission must come with a duty to act; there is no inherent duty to save every person on the planet, only those whose dangerous situation you created or to whom you owe special care by contract, statute, or relationship). For one’s act or omission (A) to cause another’s death (B), A has to happen before B, and it must also be established that: had A not occurred, B would not have occurred, and there is some proximity in time and circumstances between the two.

As you’ll see from the following examples, the Talmudic causality logic is pretty straightforward, and very similar to the common law rule. A person is culpable of murder if he strikes the victim with a stone or with iron (any size is lethal, says Shmuel), or holds a victim underwater or in a fire (unless the victim can extricate himself but for some reason does not). Siccing a dog on a victim is murder, but according to some, doing the same with a snake is not (as the snake has a mind of its own). If A pushes B under water, but C holds B down, C is responsible for the murder. It even might be possible that A is not responsible, if his contribution ws not the lethal one.

What if A exposes B to the elements, and B dies of natural consequences (e.g., confined to a hot place and dies of heat, or tied up and dies of starvation)? The causation here is indirect, as the immediate cause of death will appear to be “natural”, but of course there is criminal accountability here, as it is the action of the murderer that creates the conditions for the natural cause of death. It is, however, crucial to figure out whether exposing B to the dangerous situation guaranteed the lethal outcome. According to Rava, for example, tying a person in front of a lion is not murder (the lion might not be hungry), but in front of mosquitoes is (they will inevitably bite). According to Rav Ashi, even the mosquitoes have a choice.

A dispute between Rava and Rav Zeira involves a situation in which A overturns a vat on B, and the latter dies of suffocation. The redaction is unclear about who thought what. Some believe Rava would acquit, because he would also exempt A from tying up B who dies of starvation. Others believe Zeira would acquit, because he woudl exempt A from putting B in a sealed marble house unless he lit a lamp emitting poisonous fumes in it (an issue of proximate cause).

A few more scenarios follow, which are trying to get at problems of indirect causality (what today’s criminal law scholars would call “lack of proximate cause” but, at least to me, the logic does not track well, and is certainly less persuasive than the previous round:

  • A pushes B into a pit with a ladder. Later, C removes the ladder (or even A removes the ladder himself). The sages acquit A, because at least initially, B could have used the ladder to escape.
  • A shoots an arrow at B, who holds a shield. If, after the arrow was shot but before it reaches its target, C removes the shield (or even A somehow traverses the time/space continuum and removes the shield), A is to be acquitted, as when he shot the arrow B was still shielded.
  • A shoots an arrow at B, who holds medicinal herbs that can heal the wound. If C snatches the herbs from B (or even if A snatches them) before he can heal, A is exempt, as when he shot the arrow B could have saved himself.
  • The latter scenario, says Rav Ashi, holds true even if B didn’t hold the herbs, but they were available at the market.

The page ends with some examples that have to do with dangerous items that rebound:

  • A throws a stone to kill B. The stone rebounds off a wall and kills C; A is accountable (this is known in modern criminal law as “transferred intent.”
  • Same story if A, B, and C play ball, which rebounds and hits D. If they intended to hit D, they are culpable (as a silly aside, if they did not intend to, they can go to exile, for which the term is “golin”, and the association with a goal is, at least for me, inevitable).
  • If A throws a ball that hits B within four cubits (אַמּוֹת) of A’s location, A is not culpable, as it was not his intent to throw the ball such a short distance–though other dispute this and say that intent governs the outcome, regardless of distance.
  • The outcome of rebounding and diverting objects has to do with the expected physical outcome of the action. If A diverts water from its course and the flow kills B, A is liable if he exercised enough force, or diverted the water, with sufficient pressure to kill. Similarly, if one throws an object up, the object is bound to come down, but if it takes some unexpected turn to the side and kills someone, the thrower is not liable.

This concludes page 77, which carries both me and you through the end of Tuesday, by which time my busy solo parenting will come to an end and we can resume on Wednesday with page 78 right on schedule with the rest of the Jewish world. More basic homicide law to come, so stay tuned. Happy rosh hodesh (beginning of the Jewish month) and Shabbat Shalom!