Donna Adelson Receives Life Sentence, Claims Innocence in Unsworn Statement

On Monday, Donna Adelson, who was convicted of her role in the murder of my colleague Dan Markel, was sentenced to life in prison. Several people testified in her defense, including her husband Harvey and a family friend who had also testified at the trial. Donna herself gave a lengthy unsworn statement, which you can hear for yourself here:

What is the value of such a statement? We know that the rules of the game are much looser at the sentencing phase than they are at the guilt phase; evidentiary limitations, such as the hearsay rule, do not apply. Still, under Florida law, sentencing witnesses must be sworn in. Theoretically, these witnesses can be cross examined and impeached, but I suspect that at this point, unless there are glaring falsehoods, the prosecution is happy to have the judge form their own impression of the reliability of the testimony.

The one sentencing witness who need not be sworn in is the defendant, who may give an allocution statement and is not cross examined on it. But using the opportunity to offer such a statement–especially after electing not to testify at the guilt phase–can be a double-edged sword. On one hand, it is commonplace for judges to consider the defendant’s remorse as a mitigating factor. Given that the defendant was found guilty, the judge operates under the understanding that legal truth equals factual truth, and thus a defendant professing innocence is an unrepentant defendant who deserves no mitigation (this is what happened here). On the other hand, despite this risk, for some people it pays off to continue to profess their innocence, for various reasons:

  • Perhaps they are innocent! Dan Simon conservatively estimates that 5% of all criminal defendants are innocent. A person wants to preserve their moral integrity.
  • Perhaps they feel indignation or entitlement about other injustices in the process and do not feel guilty even if they are.
  • Perhaps they are performing to family/friends and other people. This is especially common when one is convicted of heinous offenses, such as sex crimes or violent crimes, and wants to preserve their reputation vis-a-vis those close to them.
  • Perhaps they want to preserve some issues for postconviction procedures (in some cases, a consistent claim of actual innocence can play a small but important part in federal habeas).
  • Perhaps they (mis)calculate that the judge was not fully persuaded by the jury’s verdict and might be responsive to their plea of innocence.
  • Perhaps this will play off well in the long run, in that a change of heart and a later acceptance of responsibility can pay off in sentence reduction deals (e.g., I will accept responsibility and testify against a co-conspirator or accomplice in return for a reduction in sentence; otherwise, I will insist that both they and I had nothing to do with the crime) or on parole (e.g., I’ve gone through an amazing moral transformation in prison and learned to accept responsibility for my crime).

Since I very much doubt the first factor in this list is plausible in Adelson’s case, I wonder if the other factors are relevant here; specifically, whether Donna is saving a change of heart (similar to Katie Magbanua’s) for a time at which Wendy and/or Harvey face trial. In any case, lashing against the jury and the judge, claiming bias and/or inattention, as both Donna and Harvey did at the hearing, does not seem to be the right mindset to engender any sort of sympathy. Perhaps the habit of a lifetime–lying, acting entitled, believing that one is always in the right and everyone else is in the wrong–simply proved too hard to shake.

Punitive and Lenient Legislation, 2015-2018

Colleagues at UNC School of Law’s Prosecutors and Politics Project have shared an important report that analyzes legislation proposed and enacted in all 50 states between the years 2015 and 2018. It’s a telling bracket, because it features two years of a Democratic presidency and two of a Republican presidency, and the study looks, of course, at a variety of states, with varying red, blue, and purple political orientations. The findings are quite universal and defy political divisions:

Nationally, state legislatures passed 1,257 out of 7,068 provisions that increased the scope of the criminal law, 435 out of 1,957 provisions that decreased the scope of the criminal law, 524 out of 3,181 provisions that increased punishment, and 201 out of 976 provisions that decreased punishment. Combined, legislatures introduced 10,249 punitive provisions, 3.5 times more than the 2,933 lenient provisions introduced. They passed 1,781 punitive provisions, 2.8 times more than the 636 lenient provisions passed [see image above].

Notably, although the states passed a considerably larger number of punitive provisions than lenient provisions, lenient provisions had a higher passage rate. Lenient provisions changing the scope of the criminal law passed at a rate of 22%, as compared to 18% for punitive provisions. And lenient provisions changing the scope of punishment passed at a rate of 21%, as compared to 16% for punitive provisions.

The report includes a state-by-state breakdown of introduction and passage of punitive and lenient bills. I’ve taken a look at the numbers for California, and it looks like we’re hovering somewhere in the middle, though we made it to #9 in pure lenient bills passed (the gaps are not huge between states, and as you know, in referendum-based systems such as our voter initiative process, bills often include a hodgepodge of provisions, though they usually lend themselves to a classification as “punitive” or “lenient” because they are funded by politically partisan actors).

The report actually addresses this:

When analyzed by number of bills, rather than by number of provisions, it becomes clear that the success of lenient provisions came mostly through the passage of mixed bills—that is, bills that contained both punitive and lenient provisions—rather than the passage of purely lenient bills. Overall, mixed bills were more likely to pass in every offense category, suggesting that these bills may represent important opportunities for legislative compromise that have a higher rate of success. However, even though mixed bills pass at a much higher rate, there are far fewer such bills than purely punitive or purely lenient bills. Consequently, a smaller number of mixed bills are passed.

Because the report covers the years 2015-2018, it reflects the fading attraction of the postrecession bipartisan reforms that I flagged in Cheap on Crime. By then, political polarization came to replace the early-Obama-era collaborations (remember those days, when the ACLU and the Koch Brothers were on board with sentencing reform?) and, as we know, it’s much easier to ratchet sentences up and add criminal offenses than to bring them down and decriminalize.

As to what kinds of bills are introduced, it’s no big surprise that sex offenses continue to be a favorite target for punitive bills. Serious crimes do not tend to trigger lenient legislative sentiments: note that only 4 proposals out of 54 to alleviate punishment for homicide have passed, compared to the rate of success in decreasing criminalization and punishment for drugs, theft, regulatory offenses, and even firearms offenses.

In Governing Through Crime, Jonathan Simon wrote that no politician, of any stripe, wants to be perceived as soft on crime, and the report indeed shows that the state governance (Republican or Democrat) does not usually predict what sort of bills will pass and which offenses are to be targeted:

For crimes relating to abortion and voting & elections, we expected to see more punitive bills introduced and passed in Republican-controlled legislatures. That is what we found.

For crimes relating to pornography & obscenity, we expected to see more punitive bills introduced and passed in Republican-controlled legislatures. But that is not what we found. Republican and Democratic-controlled legislatures passed laws increasing crimes at almost the same rate and Democratic-controlled legislatures passed laws increasing punishment at a higher rate than Republican-controlled legislatures.

For crimes relating to animal cruelty and domestic violence, we expected to see more punitive bills introduced and passed in Democratic-controlled legislatures. But that is not what we found. The number of bills introduced and passed in Republican-controlled and Democratic-controlled legislatures was nearly identical.

For crimes related to hate crimes and regulatory crimes, we expected to see more punitive bills introduced and passed in Democratic-controlled legislatures. But that is not what we found. Indeed, for regulatory crimes, we observed more bills introduced and passed in Republican-controlled legislatures.

For firearms-related laws, we expected to see more bills introduced and passed in Democratic-controlled legislatures that increased criminal law and punishment. We expected to see more bills decreasing criminal law and punishment introduced and passed in Republican-controlled legislatures. But our findings were mixed. We found more bills that increased criminal law introduced (but not passed) in Republican-controlled legislatures; and we found more bills that increased criminal punishment both introduced and passed in Republican-controlled legislatures as well. Our expectations were, however, borne out for bills going the other direction. Republican-controlled legislatures were much more likely to introduce and pass legislation that narrowed the scope of criminal law relating to firearms, and somewhat more likely to introduce and pass legislation that reduced punishment for those crimes.

I think this report provides a rather nuanced perspective on how punitive and lenient legislation operates, and goes against the grain of some of the crude generalizations made on both sides in the media.

Defendant’s Right to Testify… Whenever? Also: TikTok Jurors

I just caught up with the denial of Donna Adelson’s motion for a new trial. The defense brought up numerous claims, the most interesting of which were jury contamination and a violation of the defendant’s right to decide whether to testify or not. Let’s tackle the latter one first. You can see for yourself how things went down as the defense wrapped up its case:

When watching the trial live, I empathized with the judge’s impatience, but worried that he might not be cautious enough to avoid being reversed on appeal. I’ve now caught up with some commentary about the trial, including this excellent analysis by Peter Tragos:

The transcript of the sidebar conversations, as well as the colloquy Judge Everett had with the parties the morning after the defense rested, have reassured me that the defendant really got all the possible leeway and opportunities to make an informed decision whether to testify. Thank you, Mr. Tragos!

But this brings up a different issue: how do we feel about the defendant testifying last at their trial?

The idea that the defense has the freedom to fashion trial strategy as they see fit is a cornerstone of criminal defense, but in other countries there are special rules about testimony. In Israel, and I bet in other former British colonies as well, the rule is that the defendant must testify first. This makes a lot of sense: the defendant is the witness that has the most at stake, and they are also the only witness who actually gets to sit in court for the entire trial (all other witnesses may not sit in court when their fellow witnesses are testifying, and the Adelson defense was scolded about this at least twice). This, to me, raises the obvious implication that a defendant who testifies after the other witnesses can make strategic decisions. In fact, it’s so obvious that commenting on it to the jurors is not considered a violation of the defendant’s right to testify. In Portuondo v. Agard (2000), the prosecutor stated the obvious in closing argument:

You know, ladies and gentlemen, unlike all the other witnesses in this case the defendant has a benefit and the benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the testimony of all the other witnesses before he testifies.

That gives you a big advantage, doesn’t it. You get to sit here and think what am I going to say and how am I going to say it? How am I going to fit it into the evidence?

He’s a smart man. I never said he was stupid ….

He used everything to his advantage.

The Supreme Court found that these words did not unlawfully infringe on the defendant’s right to testify:

[W]e see no reason to depart from the practice of treating testifying defendants the same as other witnesses. A witness’s ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening. Allowing comment upon the fact that a defendant’s presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate-and indeed, given the inability to sequester the defendant, sometimes essential-to the central function of the trial, which is to discover the truth.

If we, too, had a procedural rule that the defendant must testify first, we would do away with the need for such warnings and would also curb the strategic/manipulative potential of having the defendant hear other witnesses.

Now, let’s turn to the TikTok issue. I agree with Tragos (seriously, listen to the entire thing – he does a great job pulling relevant sections from the transcript!) that the judge’s instructions to the jury allowed them to share the fact that they were on jury duty with “anyone who needs to know where you are,” and that he also told the jury not to disclose any information about the case itself. But I have to ask myself what drives a person who heard these warnings to make a TikTok about the general experience, albeit not mentioning the case, after being impaneled. Come on, people. You are indeed living your life even if you’re not reporting every second of it on social media. I don’t think this will lead to a reversal on appeal, but for heaven’s sake, why take the risk?

FESTER Wins ASC Book Award

Friends, I’m thrilled (and quite surprised and shocked) to share with you the good news that our book FESTER: Carceral Permeability and California’s COVID-19 Correctional Disaster has won the American Society of Criminology Michael J. Hindelang Book Award for 2025! 

This is a huge and rare honor, and one we did not expect in our wildest dreams, even though we deeply believed in our project and knew the book was good. We didn’t write it to win awards or attend fancy plenaries, but to bear witness to California’s worst-ever medical prison scandal and sound the alarm about prison conditions that allow disease and suffering to fester. We wrote it from the bottom of our wrenched hearts and it spoke to the awards committee from the same heartfelt place.

The story of FESTER is, first and foremost, your story: the story of incarcerated and formerly incarcerated people, families, activists, advocates, lawyers, doctors, journalists, psychiatrists, psychologists, statisticians, epidemiologists, volunteers, and other upstanding citizens who came together to sound the alarm on behalf of the most neglected people in the state when your voice mattered the most–and when the government turned its back on our most vulnerable friends and neighbors in their most dire hour of need. Our hope is that this award will help FESTER contribute, even a little, to an urgent conversation about how to improve prison and jail conditions that will prevent the horror we lived through from happening ever again.

You followed this story in real time: this blog documented what we learned every day from our friends and neighbors about the neglect, ineptitude, rumor mongering, and devaluing of human lives they suffered. You were the first to have access to our raw data and to read our blow-by-blow account of the state and federal litigation. And when the time came to speak up, many of you stood with us and with our neighbors behind bars, reminding the rest of our state–and the government–that, in the context of health crises, there is no “other”.

Our book is your book. Our story is your story. Our award is your award. And our struggle is your struggle.

Verdict Problems in Karen Read Trial: Jeopardy Bar?

If you are not a true crime aficionado, or if you don’t live in the Northeastern US, you may not have heard about Karen Read’s murder trial. Last year, she was charged with the murder of her boyfriend, Boston police officer John O’Keefe, whose body was found in the snow near their house after a night in which the two reportedly had a fight at a bar. Karen’s attorneys presented an alternative theory of the crime. According to the defense, a local law enforcement family was involved in John’s death, and the officer placed in charge of the investigation hid evidence implicating them.

A defense strategy that presents an alternative narrative can be very risky, in that it can confuse the jury into comparing stories and choosing the more likely one (rather than deciding whether the prosecution’s story was proven beyond reasonable doubt). But in this case, the alternative theory was carefully pieced together with texts, Google searches, crime scene evidence, and geographic proximity–enough so to provoke considerable debate during jury deliberations. The trial ended in a hung jury and the parties are gearing up for a retrial with a notable difference: one of the jury alternates, who is an attorney, has joined the defense team.

In addition, there are some legal issues of interest: Read’s team is appealing a pretrial decision not to dismiss certain charges to SCOTUS. The story, in a nutshell, is this:

At last year’s trial, the judge declared a mistrial after the jury sent notes repeatedly expressing it was at an impasse. But Read’s attorneys say they later  heard from multiple jurors who indicated they did reach a unanimous decision to acquit Read of her murder and leaving the scene charges. 

Read contends the Constitution’s Double Jeopardy Clause bars her from facing trial on the charges again, given the revelations. 

“Read’s Petition contends that the jury’s decision that she is not guilty of Counts 1 and 3 constitutes an acquittal and precludes re-prosecution on those counts even if unannounced,” her attorneys wrote. 

Let’s figure out what’s what. Here is the original indictment, according to which the three charges are as follows:

M.G.L. c. 265, Section 1. Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree. Petit treason shall be prosecuted and punished as murder. The degree of murder shall be found by the jury. Second degree murder in Massachusetts requires intent to kill but not premeditation.

M.G.L. c. 265, Section 131/2. Whoever commits manslaughter while operating a motor vehicle in violation of paragraph (a) of subdivision (1) of section 24 of chapter 90 or section 8A of chapter 90B, shall be punished by imprisonment in the state prison for not less than 5 years and not more than 20 years, and by a fine of not more than $25,000. . . Under Massachusetts law, operating a motor vehicle while intoxicated, exhibiting recklessness toward the potential of causing a death, and actually causing a death, constitutes manslaughter.

M.G.L. c. 90 (2) (a 1/2) (2). (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. . . Note that this offense, under Massachusetts law, does require the person to have been the cause of the lethal collision or injury, but the actus reus is the departure from the scene.

Of course, all three offenses revolve around the same scenario, but Counts 1 and 2 are the “same offense” for Blockburger purposes – which is to say, the elements of Count 2 are completely included in Count 1. It would be impossible, therefore, to convict Read of both murder and manslaughter. If convicted of murder, she’d have to be acquitted of manslaughter, and vice versa. Determining which is appropriate depends on what the jury finds regarding the mens rea, the mental state of the defendant: for murder, MA law requires intent to kill, and for manslaughter, recklessness at minimum.

Count 3 could come hand in hand with either Count 1 or Count 2. What complicates matters is the MA legal definition of the mens rea for this offense: it appears that this offense requires that the death-causing accident occur “knowingly,” which is more than the threshold required for the manslaughter charge. This is important, because here’s what we now know about jury deliberations in this case:

The motion filed in Norfolk County Superior Court said one juror told the defense team that jurors voted 12-0 to acquit Read of second-degree murder and of leaving the scene of an accident in which there was a death. The lawyers also received second- and third-hand accounts about two other jurors, both indicating there was agreement on acquitting Read of second-degree murder. The motion asked for the murder and leaving-the-scene charges to be dismissed.

Jurors were deadlocked, however, on the charge of manslaughter while operating a motor vehicle under the influence of alcohol, the juror told the attorneys.

Had jury instructions been administered properly, the jury would be on notice that they must deliver a separate verdict for each of the three counts. If that were the case, and if the information in the motion is accurate, then the jury would have voted to acquit of murder and of leaving the scene, and would have deadlocked on the manslaughter charge. This, given what we’ve just noted about mens rea, is a logical parsing out of the evidence. It would suggest that the entire jury was in agreement that intent, or even “knowledge”, was not proven here, and that the dispute revolved around at least one of two questions: (1) whether or not an accident had happened at all (which the defense disputed in their alternative story) (2) whether Read was reckless in causing the accident or had a lesser mens rea (such as negligence or less). This analysis means that an acquittal of the murder and leaving-the-scene charges would not bar a retrial on the manslaughter charges, nor would it create any collateral estoppel that would bar those charges (“the killing did not happen through Read’s knowing/intentional actions” does not bar the possibility that it happened through her recklessness). So, in this scenario, going into a retrial, the defense would have to refocus its energy on the alternative story (i.e., the accident did not happen at all) or on showing a mens rea lesser than recklessness.

But as we know, that’s not what happened. What happened was that the jury was not clear on the fact that they should deliver a separate verdict for each count, and therefore we don’t actually know–as in, ink-on-paper know–what their determination was, which the prosecution now argues makes all three charges fair game. It will be up to SCOTUS to decide whether the evidence we now have of jury deliberations is sufficient for a finding that these were, in fact, acquittals. We know from Fong Foo v. U.S. (1962) that an acquittal, no matter for what reason, is an acquittal and thus a jeopardy bar. In this case, we’d have to recur to Downum v. United States (1963), which holds that mistrials must be interpreted based on their circumstances. Mistrials that are, in essence, acquittal avoidances, should be treated as acquittals.

I’m not sure it’s fair to call what happened here an “acquittal avoidance,” because it doesn’t look like the verdict was solicited and procured with some sort of nefarious intent to avoid a situation in which the jury would acquit. After all, if the jury convicted of one of the homicide offenses (murder or manslaughter) it would necessarily have to acquit of the other, and that would’ve been clear to the judge and to the parties. But what we did get here was a vague verdict that stands in place of an acquittal and possesses enough internal logic to suggest what the jury actually thought to the point that I think justice would be served by dismissing counts 1 and 3 and reprosecuting only for the manslaughter charge.

As a coda, I know there are heated debates about this case and people seem strongly persuaded of Read’s guilt or innocence; I’d just say that the prosecution must be very convinced of her guilt to be reprosecuting after this verdict fiasco, after their own investigator was disbarred for how he conducted the investigation, and after the defense’s alternative theory managed to persuade a considerable number of jurors, including one who just joined the defense team. I’ll be following this with great interest.

Reversal of Fortune in Adnan Syed Case and the New Media Issue

Yesterday, Ivan Bates, the Maryland State Attorney, published a report of the office’s investigation into the handling of Adnan Syed’s case. You can read the executive summary here. As someone deeply interested in the promise and pitfalls of new media, especially true crime podcasting, for the criminal process, I read it with great interest.

The Biography channel offers a timeline of the case, of which I’m providing a short summary here. Syed and Hae Min Lee, the murder victim, were a couple in high school, and they broke up in December 1998. Soon after, in January 1999, Lee went on a first date with a coworker from LensCrafters. Lee was last seen on January 13, 1999, leaving school at 2:15pm in her Nissan Sentra to pick up a cousin and head to LensCrafters; she never made either appointment. Her body was found on February 9, 1999, in Leakin Park.

What happened on [the day of the murder] depends on who you talk to. As described by Syed to Serial, he goes to his photography and English classes and then calls his friend Jay Wilds, offering to lend him his car during his lunch period. Wilds then drops Syed back off at school, where he has a free period and then arrives late to his psychology class—it started at 12:50 p.m., but he entered at 1:27 p.m., as his teacher notes.

After class, he goes to the Woodlawn Public Library to check his email and chats with friend Asia McClain. Then he goes to track practice. Wilds picks him up, and the two go to a friend’s house. It’s while he’s there that Officer Scott Adcock calls Syed asking if he knew where Lee was. The student told the official that “he was suppose[d] to get a ride home from the victim, but he got detained at school and felt that she just got tired of waiting and left,” according to the 2019 appeal. Syed then picks up food on his way to meet his dad at the mosque for evening prayers, Serial reported.

Meanwhile, Wilds’ version of the day changed throughout his interviews and testimony. In his testimony at the second trial, he says that he and Syed drove to Security Square Mall and claims that Syed reportedly told him he was going to kill Lee. That afternoon, he says that Syed asked him to pick him up at Best Buy, where Syed shows him Lee’s body in the trunk of her car. They leave the car at a park-and-ride lot. That night they bury Lee’s body in Leakin Park and leave her car in a residential parking lot.

Following up on two anonymous phone calls pointing to Syed as a possible suspect, and after finding Lee’s car, on February 28, 1999, Syed was arrested and charged as an adult. Shortly after the arrest, McClain, Syed’s alibi witness, wrote a letter to him detailing their library conversation. Syed was tried twice: the first trial ended in a mistrial on December 15, 1999, and after the second, on February 25, 2000, he was convicted and sentenced to life plus 30 years. A month after the verdict, McClain wrote an affidavit at the request of family friend and attorney Rabia Chaudry. Syed’s appeal was denied on March 19, 2003, and his habeas corpus petition was denied on December 30, 2013.

Like many other people, I became interested in the case by listening to the first season of Serial, which debuted on October 3, 2014. While the podcast was being broadcast, Syed had a pending appeal of the denial of habeas, and he managed to get the habeas case reopened in November 2015. The main arguments made at the hearing echoed the weak points of the case as examined in Serial: McClain’s alibi, cellphone tower discrepancies, and allegations of ineffective assistance of counsel and discovery violations from the prosecution. After the hearing, Syed was granted a new trial in 2016; the new trial was then denied in 2019, a decision echoed by the Supreme Court.

In September 2022, then-Maryland State Prosecutor Marilyn Mosby informed the court that the state had lost faith in Syed’s conviction in light of new evidence and violations. A Baltimore City judge vacated the conviction, and a month later, all charges against Syed were dropped. However, on March 28, 2023, a Maryland appellate court reinstated the conviction, as the Lee family’s right to attend the hearing in person was violated, and ordered the court to hold a new hearing. Syed petitioned the Maryland Supreme Court to review the reversal, and on August 30, 2024, the Court upheld the reinstated conviction.

The latest news are that the prosecutor’s office has reviewed Mosby’s handling of the case and has restored its confidence in the original conviction, withdrawing Mosby’s motion to vacate the conviction. The highlights of the decision are as follows:

  • The alleged prosecutorial misconduct in hiding handwritten evidence of alternative suspects was unfounded, as “(1) the notes do not point to any alternative suspects; (2) the individuals that the “SRT” believed to be the alternative suspects were known to the defense; and (3) the notes were likely disclosed to the defense before trial.”
  • The ineffective assistance of counsel accusation against Gutierrez, who represented Syed in the original trial, was unfounded. Contrary to the prosecution’s prior assertion, that Guierrez did not cross-examine the State’s cell phone expert on a disclaimer found in the phone records, the proceeding transcripts show that the State’s cell phone expert was never asked a single question on direct examination – and did not rely in any way – on the cell phone records at issue, but rather had conducted independent testing at 13 separate locations to determine which cell towers were in the range of these locations, and only relied on his notes.
  • One of the main arguments undergirding Mosby’s motion to vacate was the absence of Syed’s DNA on shoes found in Lee’s car, but the shoes were never proven to be Lee’s, and DNA found on the soles could have come from anywhere.

It also turns out that Mosby’s representation to the Court that the office was actively looking for new suspects was false.

I don’t know whether Syed is guilty or innocent of the murder, but I think it’s hard to argue that the reopening of the case in 2015, and certainly Mosby’s investigative energy that culminated in the withdrawal of prosecutorial support of the conviction, was not at least partly attributable to the momentum from the widely acclaimed podcast. FWIW, I thought Serial, which I reviewed at the time, was balanced in raising arguments on both sides of the case; it was the second podcast on the case, Syed family friend Choudry’s Undisclosed, that explicitly sided with Syed. Koenig’s agnosticism about the case was, to my mind, one of its main strengths, and I don’t think there was anything inherently unethical about producing and broadcasting the show while an appeal was hanging.

I do think, as I explain in Rise of the Innocence Podcast, that our recurrence to true crime as a form of entertainment, has resulted in new media reexamining convictions being elevated to the rank of postconviction review. There isn’t a code of ethics for podcasters; anyone, regardless of expertise or moral commitment, can call themselves an “investigative reporter,” and it’s hard to argue, in the Year of Our Lord 5785, that any work of nonfiction–including our daily newspapers–can be said to be 100% objective. Reportage always has a slant, an angle, a frame, and this will apply to the choices made about what to broadcast as well as what not to broadcast. And what worries me is that this can lead to two opposite reactions, neither of which fully satisfies our thinking on the subject.

The first, and it’s not just a trap for credulous people–these things are serious, absorbing, and detail-oriented–it’s very easy to uncritically sway with the intentions, trends, and slants of an engaging, even riveting, podcast. Not everyone who listens to podcasts has the expertise, or even relevant knowledge, to question how the facts are presented, because the facts themselves come from the podcast. For every case covered by a podcast, there are thousands of cases just as deserving of review and revision that don’t get selected, maybe because they don’t involve whatever big political question is salient in the culture at that time, maybe because the talking heads are not interesting enough or their voices are not radiophonic enough, maybe because the evidence is too complicated to unpack in a podcast, maybe for practical reasons of convenience and accessibility. The very fact that a podcast exists does not stand alone in the universe. What is and is not reviewed and covered is hard to address when all you can listen to is what’s on offer, not what is missing.

The second, which I think is just as serious a problem, is that when podcasts are proven to have improperly contaminated the legal process, people could lose faith in the power of the media altogether and revert to the misapprehension that the legal system makes no mistakes and that public interest in, and review of, possible wrongful convictions is a losing proposition. I have been quite worried about this regarding Paul Flores’ appeal of his conviction for the murder of Kristin Smart, whose body was never found. A fundamental factor in reopening the investigation against Flores–always the main suspect but never with enough evidence–was Chris Lambert’s award-winning podcast Your Own Backyard. Lambert dug up heaps of evidence that the police had never found, and at some point during the investigation, it became evident to me as a listener (though Lambert never explicitly said it) that the police were collaborating with Lambert, giving and receiving tips and information, and that the podcast was largely responsible for the reopening of the case. What makes me queasy is that the podcast presents strong evidence that Flores–even if not guilty of Smart’s murder, which I find very unlikely but I’m not a juror-is an absolute scumbag, who violently raped numerous women. If Flores ends up winning this appeal and walking free because an appellate court decides that Lambert’s popular podcast contaminated the police investigation–and I think the defense can mount, and in fact is mounting, a serious case of bias and jury contamination–it’ll set free a terrifyingly dangerous and violent man, and all of Lambert’s work will have made the world a worse place. It may also discourage other journalists from undertaking assiduous, labor-intensive media projects like Lambert’s podcast.

The nimbleness of podcasters–the fact that they can reach people and dig up evidence in ways in which the government, limited by the Constitution, cannot–is also the weakness of podcasts. I wish there was a way to require every person with a microphone to undergo a crash course in criminal procedure and evidence, so that they understand better how their reportage efforts dovetail or conflict with official police investigations, and how to wield their power in responsible ways.


In Defense of High-Profile Crime Cases

As some regular readers know, I used to be a rather avid true-crime podcast listener. I followed several dozen podcasts and am still interested in the long-form ones that cover a particular crime in depth, and at one time even did some fieldwork for a book about true crime podcasts I was planning to write. I had long BART rides and bicycle rides during which I listened to these things nonstop. Then, personal calamity and world events took over and life changed course somewhat, but I kept the materials even though my horror of real-world stuff put me off the genre. This is not a complaint–many people who produce true crime shows are solid, ethical journalists who want not only to report the truth, but also to bring about closure or correct miscarriages of justice. I just can’t stomach tragedy nearly as much as I used to. But once in a while I do get captivated by legal proceedings in a high-profile case.

Such is my interest in Bryan Kohberger’s trial for the murder of four University of Idaho students. As I think I’ve posted before, much of the pretrial action is under seal, which frustrates the journalists and podcasters to no end, but once in a while the judge releases a nugget or two. Anyway, today we learned of a judicial decision on the defense’s motion to suppress the DNA found on a knife sheath at the crime scene. For those who are not following the case, this is the only piece of forensic evidence that links Kohberger directly to the crime, and it was obtained through familial DNA analysis and a genealogy website. I didn’t think the motion had a chance, and was therefore not surprised that the court denied the motion. Here is the reasoning:

[A]pplying well-settled principles of Fourth Amendment, the Court finds no constitutional violation. First, Defendant abandoned any privacy interest in his DNA by disclaiming knowledge or ownership of the sheath from which the DNA was extracted. Second, even if no such abandonment occurred, there is no reasonable expectation of privacy in DNA found at a crime scene which is subsequently analyzed to identify an unknown suspect.

This makes sense to me, except for one possible wrinkle. There’s a 1968 case called Simmons v. CALinks to an external site., where a defendant sought to suppress a suitcase on Fourth Amendment grounds. For the motion to suppress, the defendant claimed standing in the suitcase, and this later came back to bite him at trial when he disavowed the suitcase. The court said: “[W]e find it intolerable that one constitutional right [the 5th Amendment privilege against self incrimination] should have to be surrendered in order to assert another [the 4th Amendment protection against unreasonable searches and seizures]. We therefore hold that, when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.”

In other words, had Kohberger made a valid 4th Amendment argument against the admission of the sheath DNA, it shouldn’t have mattered if he said, for the purpose of the motion, “this is my knife sheath” or “this is my DNA.” He would still be allowed to disavow both the sheath and the DNA at trial. But the second rationale of the motion denial still stands: anything discarded at a crime scene is fair game. 

This motion, and others in the case, redeem to some extent my interest in these high-profile cases. Because the attorneys on both sides in these cases tend to be very thorough, and know that the eyes of millions of people are on them, they put in a lot of effort to file motions, argue, and mine evidence and logic that remains invisible in other cases. Often one hears of new forensic technologies through these cases that have not yet been employed in a lot of other scenarios. If it weren’t for the Golden State Killer and Bryan Kohberger, I wouldn’t know that the use of genetic genealogy had entered the mainstream of policing (or maybe it’s still cutting edge), nor would I think that the standing issue would find so little purchase with the court. I plan to keep following this case, as I think it’ll be interesting from both a criminal procedure and an evidence angle.

Interrogation Dilemma: Criminal (UK)

While out of the country, I got to while away the copious leisure time I didn’t have watching a fascinating international production: a Netflix series called Criminal. Four countries – the UK, Germany, Spain, and France – participated, each producing three episodes. The setting is very bare-bones: all four series utilize the same interrogation room with a one-way mirror in it. We see the interrogation of one witness or suspect, privy to what happens in the interrogation room as well as to what occurs behind the scenes. Some differences in procedure and legal culture are evident, but for the most part, it is a psychological drama.

In one of the Season 2 UK episodes, we see an interview with a woman named Julia, the ex-wife of a convicted murderer. Her ex-husband, who was a tutor for international students, apparently was involved with a young man from a foreign country and killed him. It now turns out that a second young international student is missing, and the team wants to figure out whether this young man met the same fate as the murder victim.

Julia has come to the interview on her own accord and appears very eager to help the interrogation: she is horrified by her husband’s deeds. It is a Sunday, and the team on the ground is sparse – just the interviewer and one more detective behind the mirror. But suddenly, the detective’s ears perk up: Julia has mentioned a few details about the peculiar method of the killings that were never released to the public; they were only included in the pathologist’s report, which she hasn’t seen. So how does she know?

The detective who is conducting the interview is, as of yet, unaware of this momentous fact. But the people behind the scenes are checking to make sure. The detective calls up the rest of the unit and, one by one, they arrive. They all seem to agree that, as long as the interviewer is unaware that Julia is incriminating herself, there’s no need to formally warn or charge her with a crime. It is only after the amicable interview is over and Julia exits the room that the commanding officer of the team approaches her, warns her, and places her under arrest. The following morning, she is interrogated under caution, and eventually provides more incriminating statements.

What if this had happened in the U.S.? That depends on whether the detectives were required to provide Julia with her Miranda warnings. It’s pretty easy to determine that, at the outset of the first interview, Julia is not in custody; she has come of her own free will to the station, she is collaborating, etc. As we know, Miranda warnings must only be provided to people under custodial interrogation; no custody, no Miranda requirement.

The more complicated question is whether the interrogating team’s awareness of the incriminating questions changes the nature of the interview into a custodial interrogation. By the time the team behind the mirror ascertains that only the killer could know the information Julia provided, it should be reasonably clear to them that she’s not going anywhere; she is the killer and, to top that, has framed her husband for the first murder. Does this change the constitutional status of the interrogation? Is Julia, at that point, in custody?

The definition of custody is: an arrest or its functional equivalent–a situation in which a reasonable person would feel that their freedom is considerably limited. Custody case law uses the suspect’s point of view: in at least one case, the suspect’s age is a relevant consideration as to whether they were in custody or not. Given that the actual interrogator in the room gives no indication that anything has changed (and is unaware of that herself), Julia doesn’t have any reasonable grounds to assume that her situation has changed. According to this view (and I suspect this is how many U.S. lawyers and legal scholars would see this), the warnings were unnecessary–which also means that the statements given during the second interrogation, in which she is given the warnings, are also admissible.

This does, however, raise the problem. If we say that Julia was not in custody during the first interview, we signal to detectives that there is an incentive for inviting people in as friendly witnesses and refraining from alerting them that their situation has changed. This is a fair argument in support of the idea that, once the interrogating team has become aware of the fact that the person is a suspect, rather than a neutral witness, they must give the person the warnings.

But that’s not the end of the story, because even according to this second view, while the first set of statements might not come in, the second one might. If the passage of time, the new warnings, and perhaps the added comment that the prior statements are inadmissible, count as curative methods, it’s quite possible that the statements from the second round will be admissible even if the first ones are not.

Are Nonprofits that Employ People with Criminal Records Good or Bad? It Depends on Your Perspective

You’re probably familiar with the image at the top. Created by Danish psychologist Edgar Rubin, the face/vase illusion tests the modularity of perception: you can see the vase, or you can see the two faces, but you can’t see both.

I thought about this when I read Jonathan Ireland’s hard-hitting critique of the nonprofit industry. I recommend that you read it in its entirety – it heavily features San Francisco, and exposes some deep ugliness in the management of nonprofits presumably designed to help the homeless, which actually do anything but. Ireland’s examples illuminate his key point, which is that the reliance of progressives and socialists on dysfunctional, corrupt nonprofits is the exact opposite of being “progressive” or “socialist”:

Contrary to the conservative assumption that high taxes are an inherent evil, people are often fine with higher taxes provided that the taxes are utilized to improve local living standards. What is taking place in America’s most performatively socialist urban areas is that taxes are constantly raised in order to fund public services, resulting in some of the most heavily taxed populations in the country. But this tax revenue is then squandered on private contracts to unaccountable nonprofit organizations whose activities do little to rectify the problems they are nominally being funded to address.

In other words: instead of increasing state capacity to improve quality of life (e.g., pick up trash), ensure public safety in downtown areas, and solve large-scale social problems–after all, we want government spending in these areas–progressive cities have been delegating these areas to nonprofits, which are plagued by financial malfeasance, cynical posturing that often goes against the interest of the populations they are supposed to benefit, and just plain old incompetence. Ireland’s leading example is TODCO, whose corruption is truly breathtaking. I’ve been around do-gooder organizations for the last 25 years, and some of the ones with the noblest goals and most sanctimonious agendas are the shittiest in terms of administration, financial management and responsibility, and actual accomplishments in the field (not to mention all the horrendous infighting that makes hardworking, solid people flee them in horror and swear they’ll never work for one again).

But I’m not sure I’m buying wholesale Ireland’s critique of nonprofits employing people with criminal histories. Titling this section of his review “Crime, Inc.,” he addresses several cities that employ formerly incarcerated folks as “violence interrupters” or mentors. Notably, he does not mention Urban Alchemy, but rather similar programs in Seattle and Chicago. Here is Ireland’s critique:

[N]one of these people could draw a government paycheck unless it was laundered through a nonprofit. A police department could never hire a convicted felon with long-term ties to street gangs, but a private nonprofit has looser standards regarding who is allowed access to public funds. This not only squanders money on people who are not capable of performing the roles they’re assigned, but is an active threat to public safety in circumstances where the state uses convict-staffed nonprofits for duties that ought to be reserved for the police.

I think Ireland confounds two issues that are best kept distinct. Insofar as his critique is that the municipality would not directly hire people who have served a long prison sentence, the obvious answer is, yes, that’s exactly the point! One of Ireland’s concerns is that nonprofits employ people lack the skills for doing the work they are hired to do, and I suspect he is seeing only one aspect of the face/vase illusion. The material question is, what are useful skills for crime prevention work? You see, the logic of programs like Urban Alchemy is that, living lives saturated with danger and violence, people acquire special skills that help them sniff trouble before it begins and prevent it through subtle, nonviolent means, such as positioning themselves between a young woman crossing the street and a man about to mug or assault her. If the state or municipality cannot bring themselves to value these skills in the job market, of course private providers have to step in and employ them. Whether or not the proof’s in the pudding is another matter, and this is where, again, we’re dealing with two incompatible views of reality. One view measures public safety in arrests and busts for things that have already happened. Another measures public safety in terms of the intangible sense of safety that people experience walking down the street and having nothing bad happen to them. I’m not a neutral commenter here; my sympathy for Urban Alchemy comes from my, ahem, <groan> lived experience </groan> working in the Tenderloin. I can’t quantify this, put a number on it, or twist it into a nice graphic that would fit in a quarterly performance review, but I can tell you that the entire energy around my workplace shifted when the practitioners started opening doors for us, cleaning areas that used to be repellent, and watching out for folks. The difference between street corners with and without practitioners is palpable. Maybe at some point we hit a saturation effect and the impact of seeing someone with a green vest in the corner will dissipate. I worry that the proliferation of these companies could get us there, but my subjective assessment is that we’re not there yet.

(Also, there’s the underlying assumption that the scrutiny of the public sector helps prevent scandalous mismanagement of the kind that nonprofits are notorious for. But if the private-versus-public-prisons debate is anything to go by, the private sector has not cornered the market on scandalous mismanagement. The entire COVID-19 disaster in CA prisons was 100% brought to you courtesy of the public sector, and funded by $10 billion of your tax money per annum. And the few people who tried to do something were federal employees working for the Receivership and upstanding citizens volunteering or working in nonprofits, not state employees running the prisons.)

The second issue Ireland brings up is considerably thornier: the not-at-all-unreasonable concern that putting folks with criminal ties in charge of other people (crowd handling) and funds is a risk. He does provide some hair-raising examples of folks who continued their criminal activity, be it financial malfeasance or actual gang violence, under the sheltering umbrella of the nonprofit where they worked. Because I am well read on criminological literature (including quant stuff, not just jargon-heavy political propaganda), and because I live in the real world, I know that recidivism is always a risk, particularly in the first few months after one gets out of prison (with all the usual caveats about the concept of recidivism). A BJS study looking at state prisoners released in 2005 and following up on their records until 2014 found the following:

  • The 401,288 state prisoners released in 2005 had 1,994,000 arrests during the 9-year period, an average of 5 arrests per released prisoner. Sixty percent of these arrests occurred during years 4 through 9.
  • An estimated 68% of released prisoners were arrested within 3 years, 79% within 6 years, and 83% within 9 years.
  • Eighty-two percent of prisoners arrested during the 9-year period were arrested within the first 3 years.
  • Almost half (47%) of prisoners who did not have an arrest within 3 years of release were arrested during years 4 through 9.
  • Forty-four percent of released prisoners were arrested during the first year following release, while 24% were arrested during year-9.

There is plenty that we don’t know and can argue about, of course, such as whether the arrests reflect actual renewed criminal activity or bogus outcomes of escalated stop-and-frisk stuff that ended up being nothing, and whether the arrests reflect the lives of people who were housed and employed after they came out, or people who drifted back to crime out of necessity. But I think you’d be pretty silly, misguided, or deceptive, to argue that there are no risks of reoffending when employing people straight out of the joint. My argument, in both Yesterday’s Monsters and Fester, is that you can considerably mitigate this risk by providing early releases and employment opportunities to aging and infirm people who have already spent a long time behind bars. At least initially, this was Urban Alchemy’s employment strategy, and I would not be surprised if nonprofits employing people with an incarceration history find that they have significantly more reoffending challenges with young people. As I explained in both books (in different contexts), hooking up aging former lifers with opportunities requires a stomach for bad optics, because doing so tends to produce headlines about murderers-at-large, even though from a well-researched, robust criminological standpoint, the recidivism rate among people in their fifties who served decades in prison is remarkably low, and they constitute a very low employment risk. It’s also fair to say, I think, that any organization employing people who face temptations to reoffend on their daily beat must provide them hands-on support–decent pay, decent benefits, access to therapy, reasonable colleagues to talk to–otherwise, it’s not doing its due diligence.

Once the population of employees with criminal records increases and includes younger people with recidivism risks, the question becomes: at what point do we have enough information to argue that the nonprofit is dysfuctional, or even countereffective? I submit that Ireland falls into a trap that many of us fall into: failing to acknowledge that the world is full of both Type I and Type II errors. Briefly, a type I error, also known as a false positive, is the rejection of the null hypothesis when it is actually true. A type II error, or a false negative, is the failure to reject a null hypothesis that is actually false.

The errors that Ireland flags in his article–admittedly, horrible ones–happen when you employ a formerly incarcerated person in some crime prevention capacity, making the assumption that the person will not reoffend. The person then reoffends, garnering terrible headlines and raising the expected critique: Why are you employing criminals in your organization? The error no one observes is the one we (perhaps) make time and time again: we assume people will reoffend, and therefore do not release them or employ them or offer them opportunities, when they would actually be competent and helpful and not pose a recidivism risk. Because errors of the second type are invisible (you can’t guess whether someone would have reoffended on the job if you didn’t give them the job) you’re left with just the errors from the first kind.

The invisibility of the second type of errors stands in our way when we try to figure out whether a program like Urban Alchemy or Ceasefire or Community Passageways is effective or not. The temptation is to point at the situations in which the employees commit crime–say, assault people in the street, embezzle funds, pimp sex workers in their violence-prevention areas, etc.–and say, this program gives people a license to commit crime. Of course we should not ignore these critiques. But alongside them, we should see other things: Has the overall crime rate for the area supervised by the practitioners decreased? Do before-and-after surveys of the people who live and work in those areas show an improvement in their sense of safety walking the streets? Can we compare crime and safety in the streets when (1) neglected, (2) traditionally policed, (3) patrolled by nonprofit employees, or (4) combination of policing and nonprofit practitioners? That is the sort of essential literature that can actually answer the question whether the solutions offset the problems or vice-versa. We would all be better off if more people did this careful evaluation work, instead of writing alarmist “criminals on the loose” pieces or ignorant “dismantle the carceral whatever” pieces.

I don’t think Ireland’s piece falls neatly into one category or another, and I do think that his willingness to shine a light on the pervasive dysfunction of do-gooder organizations is important. I remember following, with some interest, the ugly feud between Shaun King and DeRay Mckesson, just to see how much rubbish, dysfunction, and malfeasance was at the heart of all the mudslinging. This is not the exception; it’s not uncommon. But I think that malfeasance and incompetence do not perfectly overlap with criminal history, and that’s where we should be more careful.

Children’s Books About Prisons

Friend, are you heading to a birthday or baby shower? If you like bringing books as gifts, and want the books to be meaningful, I’d steer away from tiresome sloganeering a-la-A-is-for-Activist and offer some actual content instead. I especially recommend two books I read with my son in recent years: The Gardener of Alcatraz and Milo Imagines the World. In case one wonders, why would I want to expose my kid to prison? it’s worth remembering that many kids are exposed to prison through the incarceration of family members and friends; that prison is constantly on the news, and so you’d be better off exercising some judgment over the narrative; and that, given that about 1 in 150 Americans is incarcerated, your child will come across prison or imprisonment at some point.

The Gardener of Alcatraz, written by Emma Bland Smith and beautifully illustrated by Jenn Ely (see cover image above), is a story that humanizes people in prison and offers hope without slipping into cheesy melodrama. It tells the true story of Elliot Michener, sentenced for counterfeiting in 1941 and put on a boat to Alcatraz after participating in a foiled escape plan from Leavenworth.

To Smith’s credit, she does not embellish or glorify Michener. The narrative follows his arrival in the gloomy prison and his plans to escape, and very subtly and intelligently shows (without telling) his internal transformation through his garden work. Michener’s labor of love, planting and cultivating flowers throughout the island, and his friendship with the warden’s wife, are gently and delicately handled. Smith also doesn’t gloss over the fact that Michener was transferred out of Alcatraz toward the end of his sentence, which was a true blow to him and his work. The book contains an appendix full of interesting information about Alcatraz and about the gardens. It offers a very special slice of history without hitting readers over the head with “mass incarceration is wrong,” but even young readers will get a sense of the complexity of having done something wrong and at the same time being harshly punished.

Milo Imagines the World, written by Matt de la Peña and illustrated by Christian Robinson, takes us into the present, with Milo and his sister riding the Subway. Again, no sloganeering or hitting you over the head with moralizing messages; instead, you get to learn about Milo’s world implicitly, through the way he imagines the lives of the people around him. In a particularly moving sequence, he sees a troupe of street performers on the train, and later his imagination takes a dark turn, implying that if these girls go to an electronics store, they might be stopped by the police for suspected shoplifting. The meaning of the story fully unfolds toward the end, when the reader realizes that Milo and his sister are on their way to visit their mother, who is incarcerated. To his surprise, Milo sees that another boy who was riding with them is also in line to see his own mother. Which is where Robinson’s illustrations complete what de la Peña only delicately intimates: the other boy seems white and well dressed. Realizing that things are not what they seem, Milo opens his mind to imagine other things beyond his assumptions (for example, the street performing girls living together in a big, lovely house; the bride on the train marrying another bride, rather than a groom; the gloomy man eating his dinner with a loving family, rather than just with cats), including a future where he, his sister, and his mom, now free, all sit in front of their building and eat ice cream together. I’ve been a fan of de la Peña’s work since I read the wonderful Last Stop on Market Street, which humanizes street people and shelter workers without being condescending or too explicit.

The more I see of my son’s educational journey at Red Bridge School, the more I realize that children are very smart and perceptive; teaching them stupid things and hitting them over the head with things they can discern from better crafted materials is a waste of their intellect and sensitivity. Gardener and Milo are two examples of how to thoughtfully introduce children to the painful topic of incarceration in a way that engenders empathy and complex reasoning.