After the podcast Serial became a hit, the phone started ringing. The calls were from journalists, producers, wannabe podcasters, asking whether I had any cases involving a clearly innocent defendant who was abused by the system and ended up convicted and serving a lengthy sentence. Well, of course I did. We all do. But as it turned out, that really wasn’t the story they were interested in.
What they really wanted was a sympathetic defendant, the sort of innocent person people could love, and a simple, clear story of misconduct and abuse that ended with imprisonment. This was where I made the mistake. I had no stories like that, as few defendants were up for beatification before being charged with murder, and while there were arguments for the defense, and complex, messy problems along the way, it wasn’t as if the prosecution didn’t have a case to show they committed the murder.
The sort of post hoc contentions, like witnesses who recanted after they had nothing on the line or jailhouse snitches who say their cellies confessed to them, that true crime producers adored and thought critically valuable were the sort of things judges laughed off, as did I. People lie, all the time, for all sorts of reasons. Why is a post-trial recantation more credible than sworn trial testimony? Defendants bought witness silence or post-trial recantations on occasion. They often claimed innocence all along, even though they were guilty as sin. That’s the nature of criminal defense.
What I did not appreciate was that the true crime podcasters didn’t really care too much about the nasty nuts and bolts, as if they could just snap their fingers and make them disappear.
The variety of lapses are as plentiful as the examples are. HBO’s blockbuster 2015 documentary series “The Jinx,” about the murderer Robert Durst, was lauded for its shocking twist ending — which was later revealed to be the product of editing that manipulated the timeline for maximum impact. “Making a Murderer,” a Netflix series which debuted that same year, stirred public outrage over an apparently unjust conviction — and then it came out that the show had omitted evidence that supported the prosecutor’s case.
Beyond factual lapses and questionable techniques, the rush to feed the true crime beast has led to all sorts of slippery practices. The limited series “Dahmer” on Netflix retold a well documented story with a new, exploitative gloss — over the objections of family members of Dahmer’s victims, who protested that the series was “retraumatizing over and over again.” As the market becomes more competitive, true crime filmmakers have raced to lock down exclusive access to sources, preventing other journalists from reporting out a story, as happened in the case of a film about the women R. Kelly assaulted.
There is one thing with which almost every lawyer who’s worked a high profile case agrees: The papers got it wrong. They made up facts that never happened. They omitted facts that did and were crucial to an understanding of the case. Sometimes, it was a competition of spins, when the reporter failed to spin the story in a way that favored the defense, which commonly happened. Other times, the reporter wrote about the story to push an agenda, and it didn’t happen to be ours. Remember, Bernie Goetz being accosted by four black youths on a subway, Troy Canty holding a “sharpened screwdriver”? Every story mentioned the “sharpened screwdriver.” Except it was just an ordinary screwdriver, no more sharpened than any other.
It’s bad enough when this is what we believe to be the case from newspaper reporting. But the love of “true crime” series that purport to tell the “real truth” are a problem of an entirely different nature. People believe they are watching the actual crimes being honestly recreated with scrupulous attention to the truth, rather than fictionalized accounts with plot lines and dialogues manufactured for dramatic value out of whole cloth. People are watching lies and being told they’re truth, and they believe.
These slipshod approaches have real-world consequences. Richard Walter, an expert criminal profiler whose testimony led to many convictions, was recently revealed to be a fraud. That’s particularly disturbing not only for those wrongfully imprisoned thanks, in part, to his faked credentials but for the way his fakery hid in plain sight for decades. Walter had become a hero to some in the true crime community, lionized in books that were more interested in chronicling his dramatic exploits than in the authenticity of his expertise.
I’ve taken to task Ava DuVernay’s “When They See Us” series about the Central Park Five for having reinvented the story to make Linda Fairstein the villain by fabricating racist and dishonest words and conduct that never happened, and then taking to the twitters and media to claim her story finally revealed the “real” truth. In the defense to the defamation suit, there are the usual suspects, dramatization, no one would actually believe it to be true, but the one thing unclaimed is that the story Netflix put on the screen was true.
But if the facts aren’t there, or they’re flatly wrong, or they’re twisted beyond recognition, then true crime transforms into something closer to lurid fiction — and the entities cashing in on it are making a cynical, shortsighted bet. If creators want to benefit from the frisson of a “true” story, they must honor the truth — it’s that simple.
Except rarely is the “truth” neat and clean, or the defendant very sympathetic, or only one villain on one side. But people don’t want to consume messy and complicated, or the realization that the system is full of liars and incompetents, that fail to provide fodder for a really cool true crime story where we can cheer for the victim and hate the bad guy. Not that this matters much to the nice folks at Netflix desperate for stories, true or not.
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