September 20, 2018

True Crime Podcasts and the Proliferation of “Bizarrely Unfair” Cases

I offer a few remarks on the so much boasted constitution of England. That it was noble for the dark and slavish times in which it was erected, is granted. When the world was overrun with tyranny the least remove therefrom was a glorious rescue. But that it is imperfect, subject to convulsions, and incapable of producing what it seems to promise, is easily demonstrated. – Thomas Paine, Common Sense

There has been a burst in high-quality true crime podcasts recently that share a specific story arc. From In the Dark to Breakdown to Accused, these podcasts focus on murder cases (most a decade older or more) in which cops and prosecutors obsessively pursue suspects based on convoluted, hard-to-believe narratives.

I’m calling this particular sub genre of true crime “bizarrely unfair.” These involve cases that are not just unjust or unsolved but lacking in logic or common sense. Like Jay Wilds’ description of the death of Hae Min Lee in Serial, they lack believable motive, means, or opportunity.

The popularity of true crime podcasts focusing on bizarrely unfair cases has survived whatever afterglow effect came from Serial. The godmother of the subgenre, Serial finished its first season run almost two years ago. In the last month alone, six new podcasts dealing with weird crimes have charted in the top ten among all podcasts on iTunes. Each week, millions of people are engaging with media that shows our criminal justice system to be darkly unhinged.

It may not be fair to draw conclusions about the legal system based on an entertainment trend. Certainly, podcast producers seek out perversely unjust storylines to capitalize on their popularity. Still, most of these stories do not start out as bizarrely as they end. The discovery of how far law enforcement is willing to go to make a bad case is their common trajectory. Varying in approach, these podcasts contain a similar story arc, as follows:

First, someone vulnerable is missing or dead. Many of these podcasts investigate cases that have received regional or national attention. Most of the time, the victims are white women. For as progressive as the true crime podcast medium can be, it is disappointing that it has mostly focused on such “milk carton” cases that already garner attention. There are a few exceptions, including two from outside of the U.S.: Australia’s Bowraville and Canada’s Missing and Murdered both address the targeting and marginalization of victims of color.

Next, someone is determined to be guilty. Most of these cases do not seem to begin with clear intention on the part of law enforcement to railroad someone, arguably what happened to Steven Avery in Netflix’s Making a Murderer. More often, the accused has some relationship to the crime that makes him a viable “person of interest.” Adnan Syed was Hae Min Lee’s ex-boyfriend in Serial. A current boyfriend is the suspect in the murder of Elizabeth Andes in Accused. In season one of Breakdown, Justin Chapman is charged with arson and murder when his home burns down and the elderly woman next door dies. He lived there; he fled before the fire; he is a reasonable suspect.

Logic tends to break down when said “person of interest” becomes the primary suspect. In their zeal to name a suspect, cops and prosecutors are shown routinely to wear blinders when identifying primary suspects. Stronger suspects are overlooked; counter-evidence is ignored; questionably motivated witnesses are encouraged.

In the exceptional In the Dark, the sheriff and his deputies are stumped in their investigation of the abduction of 11-year-old Jacob Wetterling. They invest in media-friendly canvassing efforts but fail to interrogate witnesses and neighbors to the scene or look into similar abductions in neighboring cities. Without a lead, they zero in on Dan Rassier, a neighbor of the family who called 911 that night to report sighting of a car. Rather than consider the quality of his information, they name him as their prime suspect… and continued to investigate him, on and off, for over twenty years. Rassier is seen as an outsider in town. As in the case of Adnan Syed, prejudice seems to be involved in the police’s determination.

In other cases, the choice of primary suspect has even less to explain it. The police in Accused charge Andes’ boyfriend with her murder, even though he had an alibi and was reported to be loving and kind by all accounts. In episodes 4 and 5, the host examines four other viable male suspects that were not considered or dismissed by police. Each one is creepier than the last; each presents much more motive, means, and opportunity to have killed Andes than her boyfriend did. These episodes are not only shocking and revelatory about the case, but offers a realistic glimpse into how dangerous life can be for a young, attractive, outgoing woman. They are my favorite podcast episodes of the year.

It’s hard to get behind publicly naming individuals in a major murder case, when wrongful accusation is the problem. But Accused makes a valid case for looking at whom the police might have missed; they leave us no choice.

Once a primary suspect is selected, in these stories, police and prosecutors put together a convoluted story to explain how the murder took place. As in Serial, the choice of a suspect usually precedes the “discovery” of a narrative of how and why. As new facts come to light, law enforcement works overtime to rewrite its story, until it make less sense than the last season of Lost.

Perhaps the most bizarrely convoluted crime narrative in current podcasts is explored in the second season of Undisclosed. A man is convicted of murdering someone while driving on the highway; the victim was driving in another car. The accused was on the phone with his girlfriend. Police decide this was an attempt to cover up the murder. It gets weirder than this.

Another hard-to-fathom narrative is explored in the second season of Breakdown, though I know not everyone will agree with me here. Justin Ross Harris is charged with and convicted of murdering his infant son by leaving him in a hot car. While nobody disputes that Harris was negligent for leaving the son in the car, a murder charge requires that he actually intended to kill his infant son in that way.

The prosecutors come up with a story that Harris was unhappy in his marriage and killed his baby as a way of escaping it. As evidence, they provide a record of his affairs. It takes an extra effort of logical suppression to not think of a dozen faster, less complicated, and more successful ways to murder an infant than slowly by hot car, for which the parent would obviously be found responsible – never mind easier to ways to leave a marriage.

That’s just the beginning of what doesn’t make sense in this story, but Harris was found guilty regardless. The prosecutors barely try to connect evidence of affairs with intent to kill an infant. They rely on inflaming the Georgia jury’s prejudices against cheaters and absent-minded fathers.

Each of these podcasts explores the absolute power of a law enforcement narrative. Once police and prosecutors declare a truth, it takes a massive effort to undo its influence. We see this everyday in local news reports: “Police say, the suspect is a tall man… Police say, there was no use of force…” The local news almost never adds, “… but police have been known to get things wrong.”

To uphold their bizarrely unfair storylines, police and prosecutors sometimes engage in compromising behaviors. The cops in Making a Murderer violated approximately ten to ninety rules of police conduct. In Up and Vanished, which is currently airing, police officers seem to protect each other and their good friends from facing charges related to the disappearance of Tara Grinstead by doctoring alibis and destroying evidence.

Another common theme is the bribing of witnesses to give testimony against primary suspects via reduced charges or monetary rewards. The charges against the alleged arsonist of season one of Breakdown are overturned when it emerges that prosecutors withheld deals they made with “witnesses.”

The winner in the “most corrupt” sweepstakes may be the entire justice system in Smith County, Texas, explored in the Truth and Justice Podcast. Horrifyingly racist police and prosecutors compel suspects to falsely testify against each other or face incarceration for crimes they didn’t commit or trumped up charges; they are incarcerated anyway.

In all of these podcasts, law enforcement invests so much time, labor, intellectual effort, and taxpayer dollars into creating and justifying questionable case narratives. I wish the system encouraged them to focus those resources instead into proper investigations.

Finally, in most of these cases, the systems of accountability fail. Judges allow nonsensical cases to proceed and favor prosecutors in bail and other hearings. Defense attorneys either don’t fight hard or are limited by the boundaries of the prosecutor’s narrative. Media funnels law enforcement stories to the public, in black and white terms. Juries are giving strict instructions that limit their common sense logic. In some cases, the prosecutions are not successful, as in Accused and In The Dark. However, both podcasts reveal the enormous emotional, social, and financial toll that being a primary suspect can take.

In general, these podcasts do an excellent job of exploring how law enforcement can develop tunnel vision in its zeal to prosecute, but there has been less exploration of why. This needs to be examined more closely. As much as we have learned about how police training and culture can contribute to shootings of unarmed citizens, we have a lot to learn about how and why detectives and prosecutors can have problems investigating cases thoughtfully. Is it an occupational hazard? Or, does the occupation attract people who lack the patience, curiosity, and sensitivity to solve cases appropriately? Or, is it just that there is no accountability, so no incentive to take the long way to justice?

“Common sense” can be a dangerously slippery term when used legally. The law is designed not only to codify our shared values, but also to protect individuals from the oppressive dominance of the moral majority. Ideally, we don’t want the criminal justice system to be passing judgment based on anything as relative or subjective as “common sense.”

That said, I can’t think of a better way to put it: We need to restore common sense in our legal functioning. While it’s too much to ask law enforcement to always get it exactly right, they should be required at least to come up with something believable.