Lone Wolf

Back when I was looking for clips from TV shows to screen in class, I came across a “behind the scenes” interview about the emergence of the Law & Order franchise. One of the producers said that the network noticed that audiences were shifting to the right, and they wanted to cater to that with a police-and-prosecution-focused show.

It’s interesting to compare that moment to the latest offerings on American streaming TV: Reacher on Amazon Prime and Tracker on CBS. Media outlets and blogs are rife with comparisons of the two heroes, but little has been said about how they fit the moment. Both series, based respectively on successful book series by Lee Child and Jeffrey Deaver, feature a lone wolf, aimless and homeless, “walking the Earth like Cain in Kung Fu.”

Jack Reacher is an ex-military-police investigator who, unwittingly, gets embroiled in criminal investigations. Brief example of his exploits:

Colter Shaw was raised by survivalist parents and puts his expertise to good use as a reward collector for missing people:

This trend is interesting, and in many ways flies in the face of both traditional narratives about law enforcement: the one that sees police officers as the good guys catching criminals, and the one flagging oppressions and abuses of power and calling to curtail law enforcement. Here we have private citizens who outclass and outperform the police; the police have qualms about cooperating with them, but benefit when they do. In one scene, an officer tells Shaw that he is nothing but a mercenary. Shaw replies: “You get paid, too. Doesn’t mean you don’t care.” In the course of the investigation, the two go to a home of a person of interest. The home is uninhabited, and the officer of course cannot enter without a warrant. Shaw, the private citizen, breaks a window, gets into the house, unlocks the door, and says, “I burglarized the home and you’re in hot pursuit” (thus falling into the exigent circumstances exception).

Our lone wolves are not presented as merely complementary to the police: they reach where the police cannot. Each of them is supported by a team that includes a technology whiz who can hack accounts and perform tech feats that leave the official forces far behind.

Most importantly, both guys are benevolent. They are unequivocally presented as fighting for the good guys. The supporting characters are diverse, and the women are resourceful, accomplished, self-actualized, and brave, which is what you’d expect from a TV show in 2025, so there are no culture wars or traditional bigotries at work; the operative variable, though, is an individual’s intellect, resourcefulness, and physical force.

This is not the classic right-wing stuff, though it does harken back to something similar: Lee Majors’ film The Last Chase (1981), which featured a former racecar driver rebelling against a tyrannical system that confiscated private vehicles. But where The Last Chase was a glorification of individuality through consumption and oil, Tracker and Reacher are both minimalists, anti-materialistic, and nurturing to children and women not unlike MacGyver (1985). It’s interesting that the reversion to the mean from the “Defund the Police” days was not “Fund the Police” but rather “outperform the police.”

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Compelling Facts vs. Admissible Evidence

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

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

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

2. Dogged Pursuit vs. Acting within Constitutional Restraint

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

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

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

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

3. Taking Sides

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

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

4. Outreach and Accessibility

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

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

5. Context: When It Matters and When It Hampers

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

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

Voices for Justice and the Necessities and Pitfalls of Media Pressure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.


Film Review: Conclave (2024)

There is a remarkable moment in Edward Berger’s film Conclave in which Cardinal Thomas Lawrence, the Dean of the Conclave of Cardinals assembled to elect a new Pope, sits on the dead pope’s bed, having broken the seal into the holy man’s private chamber to search for evidence of financial malfeasance in the church. On the nightstand of this recently departed man, the most powerful figure in the Catholic church, is an open bible, and on it is a pair of modest reading glasses, mended with tape at the bridge. Lawrence picks up the glasses, holds them close, and his eyes fill with tears. After days of political machination, subterfuge, strategy, plot twists, the simple personal effect cuts to the core of human emotion: Lawrence feels orphaned. His mentor, his father figure, the man he prized and idolized, is gone, and Lawrence, inconsolable, breaks into sobs.

Does this moment of pure, unadulterated grief shake Lawrence into horror at what the papal election has become? At how every player in this complicated, well constructed political drama – the good guys, the bad guys, and everyone in between – has betrayed his principles? At how the vacuum, the power grab, has made all of them into “small, petty men” as one of the other Cardinals says later in the film? After his sobs subside and he finds his emotional bearings, he continues with the search, finding the incriminatory document.

I watched Conclave with great interest. Not just because it is a phenomenal film–not a false note in the script, not a less-than-masterful performance in sight, breathtaking acting, scenery, and costumes–but because I’ve been there. I’ve been at faculty meetings in which Deans were elected, in which new faculty members were appointed, in which colleagues were voted tenure. So I have some <ahem> lived experience </ahem> in the area of putting a group of homo sapiens in a scenario where ambition plays a role, where social advantage is conveyed, and where different values and considerations play a part in sectarian divisions. There is nothing unique about the Conclave: yes, there is ridiculous ceremony and arcane trappings, but aren’t there always ritualized elements in every human encounter? We are interested in these scenarios of group dynamics behind closed doors–jury deliberation is another one–because we have a sense of the major issues that animate these scenarios.

Here are some of the issues that play out, in sophisticated ways, in Conclave. Does the election to an eminent post take into account the personal virtue, the worthiness, of the individual, or is it more important to prioritize a more general policy, or set of values, and then pragmatically select the person who can realistically win office and hold it? How deep (and how low) should we go when inquiring into a person’s past conduct, and how long a memory should we have when assessing, wholesale, a person’s lifetime of goodness? When malfeasance comes to light, who should do the exposing, and how much room must we leave for personal dignity? Is it fair to say that anyone who aspires to high office should be automatically disqualified because aspiration, itself, is a negative trait? At what point does the election start serving the administrative, ritual machine, rather than the ethereal values that the machine is supposed to serve?

Each of the central characters in the film faces these difficult questions and ends up with a different resolution–and almost everybody comes up short. Some are cruder, easier cases. Tedesco, the reactionary Archbishop of Venice, makes every situation into a cudgel to beat his credo into everyone around him. Tremblay, a Canadian liberal cardinal, sees the election as a purely self-motivated power grab and does not shy from lying, stealing, and bribing. Adeyemi, a Nigerian cardinal with conservative views, is nonetheless happy to ride on the wings of diversity until a secret from his past comes to light and then he is seized with fear and begs for secrecy. Bellini, an Italian-American liberal, cares more about steering the church into a more tolerant 21st century than about his own candidacy, and is willing to overlook a lot of moral inadequacies to advance the goal. Even the main protagonist, Lawrence–a fundamentally decent man but no one’s patsy–who exhibits remarkable courage and astuteness as he navigates this complex political landscape–gets tempted, for a brief moment, by the dark side. Having not wanted the papacy at all, he is hell-bent on rooting out corruption and sin, until a window of opportunity briefly opens for him. Earlier in the film, Bellini tells Lawrence that every Cardinal has already secretly picked the name by which he would like to be known as Pope, and Lawrence replies: “I haven’t.” But when the Conclave machinations suddenly thrust Lawrence into a situation where he has a realistic shot at the papacy, he quietly admits to Bellini: “John. . . I would choose John.”

What happens at the end sheds a lot of darkness and light on the proceedings, and I won’t spoil it here. It is a masterpiece that can teach us all about the heaven and hell that we can put each other through when egos get in the way, raising the complicated questions whether full divestment from ego is ever possible.

The Acquisition of Skill: Gran Turismo (2023)

Happy New Year!

To take a breather from a hectic schedule teaching a concentrated course at Tel Aviv University, and to celebrate the completion of my book manuscript Behind Ancient Bars, finishing my GTU degree, and the beginning of my rabbinical studies at Hebrew Union College, I stayed at my beautiful aiirBnB this morning to watch the 2023 film Gran Turismo. I was surprised by how moving and thought provoking I found the film, given that I know absolutely nothing about formula racing and have no talent or taste for fast stuff (even in my open water racing days, it was always about endurance rather than speed). The film’s cinematography is breathtaking, using different kinds of drones and real race cars driven by real race drivers to bring one right into the heart of the action. But the film’s message has something important and valuable to say about the acquisition of skill, the question of proficiency/literacy in a new field, and the extent to which simulation practice translates to real-world competence.

The plot of Gran Turismo loosely adapts the astonishing true story of Jann Mardenborough, an adolescent aficionado of the eponymous racing game. Surrounded by people who undervalue his choice to spend much of his leisure time playing the game at home, Jann is astonished to receive a once-in-a-lifetime invitation to GT Academy, a marketing collaboration between Nissan and Playstation that offers the strongest gamers worldwide the opportunity to turn into real-life racecar drivers. It’s an attractive scheme, which at first seems like a fool’s errand–a shortcut into an expensive elite sport; the conventional path for the world’s fastest involves many miles behind the wheel, as well as obscene expenditures. Unsurprisingly, folks who took the long and expensive way in resent the SIM drivers, who are perceived as having taken shortcuts into the racing world. But Jann and his fellow gamers do not see it that way: they logged tens of thousands of hours at their consoles, at home and at gaming cafés, and they know how to race–at least in theory.

What they find out on the track surprises them. Driving an actual car calls for a high level of athletic fitness, the ability to endure g-forces that rival (and sometimes exceed) flying airplanes, and the clarity to strategize and commit to laser-fast action under extreme pressure and high temperatures. Not everyone who excels in gaming also makes it in the real machine, but Jann and a few others make it into the professional racing circuit. After a few real-life races, Jann qualifies for his FIA license, continuing his career for the Nissan team and accomplishing unbelievable feats, including podium finishes in some of the most challenging race courses worldwide.

The movie does not shy from the sobering reality that the feel-good story in which the underdogs overcome adversities and exceed expectations is also a story of having one’s accomplishments digested into a slick marketing campaign in the context of an absurdly expensive sport. But even within this context, it raises thorny questions about the acquisition of expertise. Having now sat through numerous academic appointment cycles, I see again and again how people tend to value their own path and undervalue, or misunderstand, other people’s accomplishments; being a foreigner with a nonstandard education on the US market was an exercise in excelling and overperforming to overcome doubt and unfamiliarity, and having been in this business for 25 years I can empathize with aspiring professionals who try to figure out how to make their own paths and accomplishments translatable to other environments. I wish I could propose a screening of this film at all first meetings of appointments committees around the world to encourage people to have an open mind and develop a better sense of smell for excellence–we are all prone to doubt when confronted with a set of unfamiliar skills. I also appreciated that, despite the film’s subtle notice of issues of race and class–an important comment in the context of an elite, inaccessible sport–the focus was on objective, measurable excellence. Say what you will, and with a great degree of truth, that in car racing money and resources translate to speed–ultimately, whoever is fastest wins the race.

The main source of doubt throughout the film surrounds the path to competence. At an NBC interview, Mardenborough said: “There’s a saying — you do 10,000 miles of anything, you become an expert. . . Racing drivers, their traditional route, their 10,000 miles, is done in karting. My 10,000 miles was done on ‘Gran Turismo’ and racing games.” 

I first encountered the 10,000-hour idea in Malcolm Gladwell’s book Outliers, a gift from a former student, and even though this turns out to be considerably lowballed, especially for classical musicians, the notion that extensive hours over a long period of time separate the wheat from the chaff makes a lot of sense to me. I read with great interest Twyla Tharp’s The Creative Habit and Geoff Colvin’s Talent Is Overrated, and both made me think that approaching the task of training/practicing wisely and consistently with gusto and grit matter a lot more than natural gift. I see in my son, who has a marvelous raw talent for sports and athletics, that springing those talents into the world only takes one so far; the idea that he has to put in a lot of elbow grease to get good at something is anathema to him and, from what I hear from fellow parents, for many other kids. It’s hard to sell a child on the idea that anything worth doing well requires, not to put too fine a point on it, sucking at it for a very long time. It’s also hard to explain the jagged path to success and acclaim which, from my experience in swimming, weightlifting, singing, and playing several instruments, involves long and frustrating periods of plateau even after you get good enough to actually enjoy your skill, which you can only break out of by switching up your practice game. Once I called the Rich Roll Podcast, asking Rich, an extremely accomplished ultra-triathlete, how to break into multisport from endurance swimming when most triathletes come from cycling/running backgrounds. His advice was remarkably in tune with the message of Tharp and Colvin: “If you’re an endurance swimmer,” he said, “you already know how to suffer. . . learning how to cycle is just spending a lot of time on the saddle.” That Rich’s advice didn’t take for me, and I did not ultimately become a competitive triathlete, is because I didn’t spend the requisite time and couldn’t find the tolerance for sucking at road bikes for long enough to stop sucking. But I did embrace, later in life, the idea of sucking at weightlifting, and here we are, deadlifting 160 lbs a year in at 50 years of age.

But back to Mardenborough, who took an unconventional path toward that success: his proverbial time in the saddle, as he explained, took place in a simulation, not in an actual car. This makes me wonder a lot about activities we foster in law school, such as mock trials, and the simulations I teach my own students. As part of my Criminal Procedure: The Adjudicative Process course, I conduct several exercises in which the students receive what looks like a real case and have to negotiate a plea bargain, pick a jury, or even use the Federal Sentencing Guidelines to calculate someone’s sentence. While these things can foster legal skills that are greatly relevant to the practice of law, they are insufficient preparation for the real world, and the best our students can do, I think, is to spend as much time as they can doing clinical work. This stuff was almost unheard of when I was a law student in the mid-1990s, and I’m glad we have such terrific offerings at law schools. Negotiating a plea based on paper has much lower stakes (a grade) than the responsibility of holding the fate of another person in your hands, and gradually imparting the gravitas of this responsibility is something we must do a lot of, and already do, in legal education.

It also made me think a lot about starting at HUC’s inaugural Virtual Pathway cohort. I’m very happy that our curriculum involves a lot of hands-on work as student-rabbis in actual congregations, and I hope my placement proves to be a great spot. In some ways, I feel I’ve already been thrown into the deep end–the first Jewish ritual I officiated solo was my beloved father’s funeral. After that, co-officiating a Shabbat ritual with Rabbi Copeland at Sha’ar Zahav was an undertaking, but a joyous one, and I felt very supported. I can tell, though, that even though I like, and have facility with, liturgy, ritual, music, and putting together content, time in the saddle is going to be of vast importance for success at this new vocation over time, and I am very eager to start putting in the first of my proverbial 10,000 hours doing it.

If one of your New Year Resolutions is getting better at a skill or a vocation, I really recommend watching Gran Turismo and giving your own path and strategy serious thought. It’s a short life, but digging deep, rewarding wells is a worthwhile way to spend it.

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.