In Defense of 'Serial', a Brilliant Podcast about the Epistemology of Investigation

 
If you haven't been following 'Serial', the podast from Chicago Public Radio, you should. It's like nothing you've ever heard before. Go to the podcast website and listen to the episodes in order. 'Serial' patiently re-investigates a 15-year-old American murder case:
 
On January 13, 1999, a girl named Hae Min Lee, a senior at Woodlawn High School in Baltimore County, Maryland, disappeared. A month later, her body turned up in a city park. She'd been strangled. Her 17-year-old ex-boyfriend, Adnan Syed, was arrested for the crime, and within a year, he was convicted and sentenced to spend the rest of his life in prison. The case against him was largely based on the story of one witness, Adnan’s friend Jay, who testified that he helped Adnan bury Hae's body. But Adnan has always maintained he had nothing to do with Hae’s death. Some people believe he’s telling the truth. Many others don’t.
 
'Serial' uses the unique openness of the American criminal justice system: the reporter, Sarah Koenig, plays audio recordings of the actual trials of Syed (the first ended in a mistrial), interviews jury members, and plays for us long excerpts of her conversations with Syed from the Maryland Correctional Center. She re-interviews witnesses at the original trial, and many who didn't testify. She visit the places where things important to the case happened. Experts on everything from cellphone tower tracing to attorney competence to police investigations to psychopath and personality disorders weigh in on both the original evidence and what Koenig's team have uncovered since the trial. She discovers some new evidence that seems to point away from Syed's guilt, and other new evidence that is either ambiguous or, as we lawyers say, 'unhelpful' to Syed. And then she speaks directly to Syed on the telephone and asks for his comments on what she's found. Syed is not your average convicted murderer -- he's intelligent, articulate, and a model prisoner, and knows precisely when to parry and when to thrust in response to accusations.
 
The podcast has sparked huge interest, with over a million people listening, and partisan commentary raging all over the Internets. The last episode broadcasts today and is already available for download, but I haven't heard it yet. The comedy sketch above satirizes one aspect of 'Serial' -- its open-endedness. Many want the podcast to end with everything tied into a neat little bow: Syed is innocent, and I found the magic bullet that proves it! Syed is guilty and has been lying all along, and I uncovered the magic bullet that proves it! To these people, the podcast seems to meander back and forth between trying to convince listeners Syed is innocent and sadly confirming the charming young sociopath's guilt.
 
This attitude slights 'Serial's' genuine achievement, which is precisely its openness, its effort to bring the reader along on a journey to genuine understanding. Journalists -- especially German ones -- are prone to be condescending crusaders, spoon-feeding their readers one-sided narratives intended to hammer home Approved Opinions™ about everything from the death penalty to fracking to immigration to Greek finances. To make sure nothing complicates the lesson, these journalists swallow the most outlandish tales of victimization, ignore glaring contradictions, and leave contrary viewpoints and empirical verification outside in the cold. Not all of them, to be sure -- there are lots of German journos doing solid, thoughtful work. And the problem ain't just Germany. Why, just last month a major American magazine published a made-up-story of gang rape based on a teenager's romantic catfishing ploy without doing even the simplest verification.
 
Koenig treats her listeners like adults, in fact almost like accomplices in the investigation. And on the way, she illustrates a number of points that ordinary people don't understand about criminal investigations (full disclosure: I was a criminal defense lawyer in a previous life):
  • Eyewitnesses who saw the same incident often -- in fact usually -- describe it in inconsistent ways, which makes eyewitness testimony one of the leading causes of false convictions.
  • Many criminal cases are based on the testimony of acomplices who are just as guilty, if not even more guilty, than the defendant they testify against.
  • Men and women who are guilty of crimes can adamantly and convincingly protest their innocence. Many can even do so sincerely, because they have convinced themselves they are innocent.
  • Since most normal humans are lucky enough never to have never encountered a sociopathic liar willing to recite detailed, convincing lies to another person, they are often taken in by these people. (I'm looking at you, European women who marry American death-row inmates).
  • The way in which a person reacts to news of a loved one's death is so individual and unpredictable that it's meaningless as a clue to guilt or innocence.
  • If you hire a private criminal defense lawyer in the U.S., there is no effective real-time regulation of that person's fee policies or performance. If they make an error that leads to you being convicted, you can only argue about that after the fact in expensive appeals, and you face a forbidding standard in proving your case.
  • Notorious criminal cases attract unstable people who will do everything from claiming responsibility for horrific murders to fabricating evidence for or against the accused.
  • If you investigate any incident long enough, you will inevitably come across spectacularly improbable 'coincidences', such as the fact that the man who discovered Lee's body happened to be a notorious streaker who once intentionally exposed himself naked in public to a female police officer in uniform. (After he waggled his dong at her he ran away. She found his clothes and confiscated them).

During her patient re-investigation of Lee's death, Koenig encounters almost all of these vagaries of investigation. She shows how the fabric of reality attending the actual events starts dissolving immediately, and decomposes further with every passing day until the original pattern is irretrievably lost -- or distorted by bias, error, or selective memory. Koenig can't wrap the events up in a neat little bundle because this isn't fiction, there is no bundle, there is no happy ending. It is to her credit that she chose a case marked by ambiguity, and that she resisted the urge to channel the facts she found into a pat, tidy, misleading narrative. By doing so, she conveys profound truths about memory, bias, violence, and justice. 'Serial', if you ask me is journalism at its finest.


Internet K-Hole / Das Internet K-Loch

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The new batch of photos from the inimitabe Internet K-Hole is up on tumblr. Curator Babs welcomes submissions -- in fact one of the new photos is from my personal hoard (can you guess which one? No, not the one above). Given how metal-friendy Germany is, there are doubtless thousands of snaps moldering in basements in Hereford, Oer-Erkenschwick or Dibbersen that need to be on Internet K-Hole. Get after it, comrades.


Bleg for Facebook Solutions Please?

As I noted, I now post mainly to Facebook. This blog is a hobby, not a business, and I only have spare time in which to maintain it, so I am not going to waste time copying identical content from Facebook to here. I did add an RSS feed to my Facebook profile, apparently, but I'm not sure how that works.

What would be ideal is to have Facebook posts appear here as well as on Facebook, so that all my readers will be happy. So I've been looking into options.

However, the solutions that have been proposed so far don't really work for me. I could migrate this blog to Wordpress, which apparently has some sort ot integration feature, but Wordpress is a much more time-consuming and technical platform than Typepad, and the migration process is not worth figuring out.

I tried to put a Facebook 'Like Box' widget on this blog but I have tried that and it doesn't show up. Apparently you cannot use this widget for personal facebook feeds, but only facebook pages (which are mainly used by businesses or groups). If I convert my personal profile to a page, according to Facebook, I lose my entire history.

So what I'm saying, dear readers, is that I am out of ideas. I am now looking for is a simple, easy way to have my Facebook feed show up somewhere on this Typepad blog, without moving or migrating or converting anything. I am even willing to pay a certain amount of money (for some sort of app) to make this happen! It just has to be simple.

If anyone has ideas, I would be grateful to hear them in comments. And not to be too shirty about it, but if you're considering posting yet another comment about how Evil Facebook Is, don't waste your time. That train sailed long ago.


Blogging is So 2010, Long Live Blogging

Draught donkey powering millstone

Blah. What am I going to do with this blog? Germany is boring.

The food is bland. The cities are well-run marvels. The weather is the weather. The politicians are colorless functionaries.

To quote Max Hastings, 'nothing ever happens in Germany.'

The press is even duller: a never-ending carousel of the same old '68 generation has-beens (Prantl! Knopp! Augstein! Niejahr! Pohl! Fleischhauer! Schleiermacher or Schnellschnorrer or whoever that guy from FAZ is! di Lorenzo channeling Schmidt!). The mainstream press circles around the same hobbyhorses like a donkey tied to a millstone: Eurocrisis. Energiewende. Rich-poor gap. Genetically modified whatever. Brussels. Europe. What will happen to [insert tiny, meaningless third party here]?!? End of print. Dangers of Facebook/Twitter/Google. Death penalty. Why we claim to hate ze sweatshops but love ze low prices. Stress/burnout. Eurocrisis. Energiewende... rinse and repeat, ad infinitum.

About 4 years, 3 months, and 15 days ago, I had an epiphany: If I began reading a German news article, especially an opinion piece, I could predict its slant after reading the first sentence, or sometimes just the headline. I would cover the rest of the article and mentally forecast what I would read. After my accuracy rose above about 80%, I finally gave up.

Mocking German smugness, complacency, self-satisfaction, and parochialism is fun at first but it's uncharitable and it gets old. Besides, as Tom Waits once said about writing political songs, it's about as effective as throwing peanuts at a gorilla.

Also, I have real work to do.

Yet I don't want to just let this blog die. That would be weak and cowardly.

So, I'm going to take it in a crazy new direction. Better yet, several crazy new directions at once! The only thing is, I haven't figured out what they are going to be yet. I think I'll just turn this blog into an unfiltered stream-of-consciousness experiment possessing no unifying theme. Or maybe it'll be opera DVD reviews. Pictures of spiders. Erotic ice-cube molds. Or all at the same time!

Suggestions are welcome in comments, yet most will be ignored.

Stay tuned!


Ask Me Anything about American Law or Life in Germany

You know, I've been wondering what to do about this blog. I don't really have the time for elaborate posts anymore, or perhaps I just don't have the patience. I was considering just shutting it down for a while, but then there was a bit of an outcry, so I kept it alive, but as you can see it's sort of limping along.

But then I got an idea from this brilliant series of videos called Sixty Symbols, where people write in with questions about physics and other things, which questions are then answered by the physics faculty of the University of Nottingham. So far, my favorite question has been 'What would happen if you put your hand in the Large Hadron Collider?', plus the God video I just posted. 

I also just got a GoPro Hero 3 camera, which makes great HD videos and is much smaller than a pack of cigarettes. Therefore, I thought to myself, why not open up the floor to my readers? Instead of me having to think of stuff to blog about and then laboriously type it up, I can just field questions from you. Hyperinteractive Web 2.0, people!

But obviously nobody wants to just hear me rambling about random subjects such as anal fissures, Albanian hip-hop, or chameleon husbandry. The only things I can really claim any expertise in are American law and life in Germany. As a bonus, I'll try to record some of the answers in interesting spots in or near Düsseldorf, if time and weather permit.

So if you have any questions about either of those subjects, fire away! You can also ask about other stuff and try your luck, but I will only pick questions I feel like answering. You can propose them in comments or by email, I guess. Let me know if and how you want to be identified.

Oh, and nothing in any of these videos will ever constitute legal advice of any kind whatsoever, or any other kind of advice on any subject. And all views expressed will be my own, blah blah blah.


Moderation of Comments and the Röhm Purge: How's that for a Non-Sequitur?

Hi there!

First of all, kudos to Theresa for correctly guessing the origin of the picture I posted yesterday. It was the cover illustration for Max Gallo's book The Night of Long Knives, an account of the Röhm purge:

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The illustration comes from one of my favorite blogs, Pop Sensations, in which an English professor presents the juiciest items from his collection of 1950s-1960s pulp fiction paperbacks. Drink-sodden gun molls, lesbian seductresses, hard-boiled private dicks, 'shockingly frank' depictions of suburban orgies -- you name it, it's there. If you've never visited before, say goodbye to your afternoon. The 'gay' section is particularly revealing -- although somehow Pop Sensations didn't tag the Röhm book as gay. A rare Bildungslücke.

Trackback-spam

And now to housekeeping. I'm switching to moderated comments from now on. There was too much spam, and the counter-measures kept snagging genuine comments (you know, serious discussions about penis enlargement or carpet cleaning in Flagstaff, Arizona). I'm sorry for the inconvenience, and hope everyone will still keep up the great stuff in comments, which for a long while has outshined the idle noodlings I post.


German Internet User Threatened With Bankruptcy and Jail for Posting Video

The problem of outdated laws inflicting unpredictable, massive penalties on people who use the Internet in unapproved ways (see Aaron Swartz) is also acute in Germany. Case in point: In 2000, a highly unusual-looking man, seeking attention, went out onto the streets of Berlin to dance in a techno-parade. Another attendee filmed him doing his thing. This is the result:

Notice that there's no attempt to conceal the filming. The filmer, Matthias Fritsch, decided to post the video online, figuring it might amuse other people. Indeed it did: the man in the video became known as the Technoviking, and his moves spawned an Internet subculture. Fritsch even made a modest amount of money from all the YouTube views.

And now, thirteen years later, he faces bankruptcy and jail. The Daily Dot reports:

[Fritsch stated:] "I am being accused for creation and publication of images connected to the Technoviking, therefore infringement of personality rights. They also say I am earning a lot of money by that. They argue that [I] gave him the name Technoviking, create 3D characters, comics and more to constantly increase the popularity in order to market Technoviking and therefore cause damage to the protagonist"

If Fritsch loses, so does the Internet. He'll have to scrub any original content he created that featured the Technoviking's likeness, and he'll be barred from creating new content. Worse, the lawsuit accuses him of creating numerous other derivative works, most of which Fritsch says he never touched....

Failing to do that, Fritsch would face a €250,000 ($334,441 U.S.) fine and up to six months in jail. Fritsch said the lawsuit only includes content he allegedly posted, so no matter the result of the trial, other Technoviking remixes around the Web are safe—for now.

"I can't say how far his intentions go for removing content that is posted by other people," Fritsch said. "It would be a Don Quixote action to try removing Technoviking from the Web."

Fritsch, who still won't reveal the Technoviking's identity despite the lawsuit, said he's not really worried about the trial. He doesn't take credit for the Technoviking character, which he believes was born out of the collaborative creativity of millions of Internet users.

"I am only worried that the judge might not understand contemporary web-culture and therefore judges from an old fashioned perspective," Fritsch said. "Artists are not rich usually and I am one of those artists. To put me in a financial emergency is really something I wouldn't like.

Technoviking's lawyer is almost certainly suing under German Persönlichkeitsrecht, which gives people control over how their own image is disseminated. The most famous case is the so-caller Herrenreiter (g) (dressage rider) decision from 1958, in which a professional horse rider's image was used without his permission in advertisements for a tonic thought to increase male potency. You could also sue for this under the common law, since this is appropriation of someone's unmistakable image without consent or payment to use in advertisements for a consumer product.

However, the common law has a different answer when it comes to people who are voluntarily putting themselves on display in public. In this case, the law generally says that if you volunarily go outside and expose your image to thousands of strangers, you are demonstrating that you don't wish that what you're doing should be kept secret, and therefore your image can be taken and used by others. There is, however, an exception for voyeuristic videos that attempt to reveal parts of your body you would wish to be kept secret (such as upskirt videos). That's obviously not an issue here. Some courts also have an exception when your image is used without your consent for a profit-making enterprise that you certainly would have demanded money for participating in had you known about it.

Under the common law, then the Technoviking video can be legally shared. Technoviking went out into a public festival, where certainly knew he might be filmed, and started dancing. He was sharing his image with thousands of strangers, and obviously enjoyed himself doing so. The artist was not using the Technoviking's image to sell a product, and the money he earned from it was merely incidental to its unexpected success. And it was, of course, money for something he created -- the video of an interesting person dancing on the street.

The idea that this could lead to jail time is an absurd consequences of Germany's outdated privacy and intellectual property laws, which also subject you to hefty fines, believe it or not, if someone else (g) posts a copyrighted picture to your Facebook page. The problem here is uncertainty. Germans are normally obsessed with Rechtssicherheit, the notion that the law must be stable and clear, so that private persons can regulate their affairs in peace. But there's a huge hole in that protection when it comes to Internet users. The persistence of these old, overbroad definitions are a constant background threat that chills Internet freedom. Any of you who have a Facebook account could theoretically face a lawsuit tomorrow for something innocent you shared with your friends years ago. All that needs to happen is for someone to find out about it and contacts one of the many German lawyers who specialize in harassing German internet users with ludicrously exaggerated damages claims for infringements both real and alleged.

This is why I have a soft spot for the Pirate Party, for all their shenanigans. None of the mainstream German parties was giving much thought to these issues before the Pirate Party came along. This was due probably in equal measure to technological ignorance, the inherent conservatism of the German legal system, and effective lobbying by the content industry. The Pirates found resonance because they pointed out that outdated laws were making potential criminals of literally millions of citizens, an absurd state of affairs in a country that claims to be governed by the rule of law. The Pirates, in the best tradition of third parties, forced the mainstream to finally face an issue they'd been all to happy to ignore.