Super Lawyers
William C. Altreuter

Tuesday, January 06, 2015

Binge listened to Serial on the drive to take LCA back to school. It is interesting for several reasons: one is that it is a way of telling a story without a resolution. In that way it is more of a story about constructing a story, which is very meta. It is also interesting because it (perhaps inadvertently) is a story about the difference between how a reporter/storyteller develops facts, and the way that lawyers/storytellers tell stories. I think the guy got poor lawyering, but there is a lot about the lawyering that we don't know, because (a) the lawyer is dead and can't explain her decision, and (b) the reporter isn't really equipped to explain or understand them anyway. So as a lawyer listening I think I hear it differently.  I think that law is a useful critical tool-- but I also think that just understanding narrative is an important critical tool as well. I do not think that most of the audience recognizes how they are being manipulated. Both Serial and its obvious ancestor,  In Cold Blood illustrate really effectively why the law of evidence works the way it does. Hearsay rules are weird because it seems like good information should be the same as more information. But it isn't. Being told that someone has big brown innocent eyes, or reading a diary, or really most of what the reporter seems to be relying on just doesn't have much value as evidence. And UB's own Professor Charles Ewing saying, well, I've seen this or that-- while interesting-- really doesn't either. What makes him seem reliable is that he confidently asserts that in these other cases he was able to get at the Ultimate Truth. What I hear is that Ewing thinks he's pretty clever, but I'm not so sure that  Ultimate Truth is available when you are operating at any sort of remove from the actual events. Once it turns into narrative it is suspect, because narrative is a persuasive tool, and our mind seeks out narrative. We have a cognitive bias towards narrative, and impose it even where it doesn't exist. It is also not clear how Ewing came into the picture. I have a feeling that he had listening to the podcast and called the reporter. I suppose he might have been sitting minding his own business in O'Brian Hall and gotten a call-- he is well-known in the field-- but I would want to know the background on that. ( He says he got a call out of the blue. It says something about the program-- or maybe my own journalistic sense, that I am reminded that if your mother says she loves you, check it out.)

It's all confirmation bias, really. The whole story is about believing what you chose to believe. It's funny also, because radio works so well as a persuasive tool. You don't notice the quiet background music, for example, but that is setting you up. When Sarah Koenig. is talking about background, the background sound is one thing, then when she is interviewing people the background is telephone ambient, and when she is going somewhere and there are road sounds, or when she plays recordings from the trial-- it all sounds different, and we respond to each differently. And although I recognize that, I can't say that I have ever read anything that speaks to the effect it has on our perception. I think that a lot of the things that she looks into are irrelevant. I also think that one of the ways that prosecutors operate is to construct a narrative, and that the proof that follows that narrative gets shaped by the narrative-- and that is misleading.

| Comments:
Where is your "journalistic sense" taking you next? Have you or are you planning to contact Ewing and ask him whether he lied to a reporter about how his appearance on the show came about?
I didn't say I think he's lying-- I said I'd be interested in checking it our. I very seldom run into Professor Ewing, but if I do, I suppose I'd like talk to him about it. I'd ask Ms. Koenig if I happened to run into her-- that would probably be the first thing I'd ask.

The whole phenomenon of "Serial" is fascinating. Because it is a podcast, there is still a sizable audience that is still catching up to it, and one of the things that this means is that the media response to it is still gathering steam. That in turn means that several people who declined to be interviewed have now made themselves available to other outlets, most notably the prosecutor and the State's informant. Jay, the informant, believes that the podcast demonized him, and feels harassed. (I thought they did a reasonable job of *not* demonizing him, but I suppose there is an interpretation that says that the program implies that perhaps he is the actual killer.) The State's Attorney's interview is an interview with a lawyer, something that "Serial" doesn't do much of. Professor Ewing, a guy with a JD, doesn't really speak to the legal issues in the case, which is what I kept wanting to hear about.

"Serial" is well tailored to it's audience, and ducks a lot of legitimate questions. Why shouldn't we believe that Adnan killed Hae? A jury believed it after all. We don't believe it-- or we don't want to believe it-- because we are NPR people. We are suspicious of cops, there is an undeniable racial element to the story that we want to compensate for somehow, and -- maybe above all-- we want to believe because it isn't a story if we don't believe. Trust me, I just spent five years trying to do something similar-- with some success. I believe in Ms. Koeng's good faith, and I am comfortable with my own good faith-- but I am very mindful of how the machine works, and that makes me a little suspicious of the process. As Robert Christgau says: " Remember, folks--when they tell you everybody's out to use or get used, make certain you go along for the ride you paid for."

Since we have one of the stars of the show around, I'd be really interested in a law school program that discussed "Serial"-- and I'd be especially interested to hear what Professor Ewing has to say about it.

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