Category: Criminal Justice

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.

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.

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.

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.

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.