Saturday, November 28, 2015

Podcast Review: Serial

On the last episode of the acclaimed podcast Serial, Sarah Koenig speaks to a retired police detective and asks him whether any murder case would raise the difficult questions raised by the case she focuses on. The detective replies that most cases are straightforward and few would present so many difficulties.

But is that true? It's hard to tell. After all, in his book In Doubt, Dan Simon provides a conservative estimate of the percentage of wrongful convictions: about 4-5% of all convictions. Rabia Chaudry, a family friend of Adnan Syed, thinks that his conviction for the 1999 murder of his high-school girlfriend, Hae Min Lee, is one of those. She enlists Sarah Koenig and the team to investigate, and they spend hours upon hours reinterviewing witnesses, digging up forensic evidence, and recreating the crime.

Indeed, Serial, and the subsequent show by Syed supporters Undisclosed, have raised considerable public interest in Syed's case, which had only provoked some local interest at the time. And the latest news are that Syed has been granted a hearing to present new evidence. Which leaves me wondering the same thing that Koenig asked the detective: how many other cases, murder or otherwise, would merit a rehearing if they received the benefit of hours of careful, NPR-quality attention?

In his famous 1965 essay Normal Crimes, David Sudnow shows how defense attorneys manage to dispose of cases in negotiation with prosecutors. Their professional expertise allows them to fit each case to an existing prototype of cases, thus facilitating the attachment of a "price list" to each case. This means that the cases don't really receive individual attention, leaving the bulk of professional time and attention for the few "abnormal" cases that go to trial. Whenever we hear about a dramatic exoneration, what we envision is someone who had been aggressively litigating and protesting for years, and who had been railroaded by the police and prosecution.

The interesting thing about Serial is that it doesn't try to tell one of those stories. I wouldn't go as far as to call it a "normal crime", but the show drags into the limelight what would appear to be fairly run-of-the-mill in terms of criminal trials. It is not a defense-oriented, the-government-is-the-worst-criminal sort of narrative that we're used to hearing in cases of serious miscarriage of justice, such as the West Memphis Three and so many others. No one is particularly at their best, but no one seems to be at their absolute worst, either. Yes, there's some racism; there's some unexplained defense behavior (this is important, because habeas review is almost impossible without proof of ineffective assistance of counsel); but none of it rises to the level of shock we've been used to experience when reading Innocence Project stories.

To me, that's the strength of Serial: showing the banality of a situation in which the factual disposition remains unclear. And it does so through Koenig's persona, who remains agnostic about the facts. In a way, Koenig is a stand-in for a diligent juror; she repeatedly refers to procedural and technical details as "boring", and classifies the evidence into "bad for Adnan" and "good for Adnan". Her congenial, soft manner never pushes the witnesses to the point of big revelations (to the extent that those are even possible, fifteen years after the crime.) When she says, at the end of the series, that she feels like shaking up the witnesses "like an aggravated cop", you almost wish she had done that in the previous eleven episodes.

And yet, it is precisely this softness and indecisiveness that lends the show its charm and magic. I haven't yet listened to Undisclosed, and I'm hesitant to do so, because Koenig's agnosticism makes me feel more respected and active than an enraged partisan party trying to enlist me to Syed's defense. Which brings me to another thought: what Koenig is trying to accomplish resembles the role of the inquisitor judge in a civil law country: impartial, out there to find out What Happened. The adversarial system calls for partisanship under the assumption that the competition between the parties will yield the best evidence. But the resulting games of obfuscation result in anything but, and Koenig's interviews with the jurors reveal just how much they were manipulated by the parties throughout the trial--regardless of whether they reached the factually correct answer.

I don't know what will happen to Syed now that his case has been picked up. But I wish that many more seemingly simple, run-of-the-mill cases received this careful attention--if not from investigative journalists then from more active jurors and with less partisan manipulation.

Sunday, November 22, 2015

Film Review: Ant-Man

Future posts will definitely feature some of these interesting things, but today I want to talk about the movie I saw on the flight to DC: Marvel Comics’ Ant-Man. This is not an indie documentary for bleeding-heart progressives who can wax poetic about the prison industrial complex. It’s a mainstream movie, featuring CGI animation, superpowers, gloom, doom, and beautiful people, and as such it is remarkable, because it represents what the filmmakers think the mainstream is open to seeing and accepting onscreen. And what it shows them is a skewed and flawed, and yet refreshing, slice of incarceration and reentry in the Bay Area.

Set in San Francisco, the film’s hero, Scott Lang, starts his journey in prison—notably, not a generic, imagined institution, but an imagined version of the very real San Quentin. And it’s a very different cinematic San Quentin than the one in which Oscar Grant spends an important scene in Fruitvale Station; one that resembles Justice Scalia's dark fantasies more than it resembles the actual prison we know. Scott’s first scene in Ant-Man sees him engage in a violent fight with another inmate. The many spectators, as well as Scott’s adversary, are large, black, muscular men. But then, the tension breaks, and it becomes obvious that Scott is on friendly terms with his adversary; we are told that this is some sort of rite of passage in honor of Scott’s impending release. Smiling, Scott says to his fellow inmates, “you have strange rituals.”

“You”, not “us”; because early on it is fairly clear that Scott is a special sort of inmate, one for which filmgoers will feel sympathy: he is a conventionally good-looking white man, armed with graduate education (a master’s degree in electric engineering), and his criminal history is that of a high-level hack for the morally allowable purpose of redistributing wealth. In short, Scott is a non-non-non if there ever was one, and we all root for him as he is released—be it because he terms out or because of Realignment.

But even with this relatively privileged starting point, Scott finds it difficult to cope outside. We see him shack up with friends, all of whom are formally incarcerated, and expressing hope of finding a suitable job soon. But his hopes are shattered: he manages to obtain an entry-level job at Baskin Robbins, where he is summarily fired by an unfeeling boss. Not for smart-mouthing a client (which he does, and which would be unthinkable to, say, an uneducated man of color competing for unskilled labor positions); for having a criminal history. Ban the Box, apparently, only gets one through the door; it doesn’t keep him there. And this is a crisis for Scott, who has to provide for, and win back the right to visit, his young daughter. His ex-wife is engaged to a cop, and both of them think of Scott as the deadbeat dad he is. We, however, know better; we’re rooting for Scott, and that’s partly because we haven’t been exposed to his ex-wife’s travails through his trial and incarceration. But we also learn a lesson: when someone is saddled with a criminal record and a history of incarceration, all the whiteness and the education in the world won’t help. It almost goes without saying that this message is deeply flawed. Race, class, and education make a big difference in reentry—as does another thing Scott has going for him, a supportive family. But it drives home the heavy penalty of incarceration and a criminal history with regard to someone with whom some middle-class moviegoers might identify.

It is this economic desperation, rather than a personality flaw, that leads Scott back into crime with his housemates—all of whom, except for him, are either men of color or immigrants with heavy accents. The film plays fast and loose with stereotypes, which is par for the course for sidekicks in a comic book. They are capable men, but they are capable in limited ways, and only as assistants to Scott, whose competence and ability are played up in the sophisticated heist they plan. The film occasionally takes pleasure in breaking these stereotypes; Luis’s unfocused chatter and confused narratives include references to his visits to a museum and enjoyment of Mark Rothko oils. But even when doing so, the Bay Area scenes that fly before our eyes as Luis describes the potential heist place him squarely within the imagined East Bay working class colorful subculture of dive bars, bikers, chicks and shady contacts. Luis has the info and the contacts, but he is not the brain of the operation.

The scenes depicting the heist planning elevate Scott and his accomplices to the coveted status of garage startup techies, and it is this subtle analogy that portrays them at their most competent and heroic. This nod to Silicon Valley reminded me of The Last Mile and other programs encouraging the involvement of folks of low income and education in the tech world upon their release. The film makes it clear, though, that reentry is not kind to any of our heroes, and if they are to make their way in the world, they must do so themselves. And so, their entrepreneurship is modeled after the “innovate first, ask questions later” model of South Bay, and sold as admirable and competent.

As viewers of the film know, the heist goes awry, and a chain of events is set in motion that sets Scott up to becoming “ant man”: a superhero capable of shrinking to the size of an ant. The adventure, villains, goals, and betrayals, are fairly predictable for the genre. What is less predictable, and surprisingly touching, is the ant metaphor, and how it connects to the incarceration and reentry theme from the movie.

Ants are eusocial insects. They are indistinguishable from each other. The inventor who employs Scott refers to them by numbers, not by names. When Scott complains, the inventor explains, “they are just numbers; do you have any idea how many ants they are?” We treat ants, apparently, the way we treat people in total institutions; we see them as a population, not as individuals deserving of life, health, and happiness. But Scott, reduced to the size of an ant, sees them as individuals, and names one of them Anthony. He learns from the inventor’s daughter how to control the ants with his mind by becoming part of the eusocial structure. Thus, the ants’ impersonality and collective organization is their great advantage. When one is struck down, ten rise in its stead (in fact, Anthony is struck in one of the final raids; Scott regrets it, but hops over and rides another ant in its stead). And together, because of their commitment to the collective wellbeing of the community, they are invincible.

It is notable that the penultimate scene in the movie marshals some of the laughable stereotypes for the beginning to marshal the ant metaphor of community and apply it to the formerly incarcerated. Luis tells a convoluted story yet again; but the bottom line of the story is that an indirect contact wants Scott to join the Avengers: “We need a guy that shrinks”. It is through this informal Bay Area network that an opportunity awaits our superhero. Because, like ants, the people who exit our prisons may look to policymakers, jailers, and employers all the same, and it might be easy to discount them—but when they look out for each other and act collectively, that is the source of their strength.

Wednesday, November 4, 2015

Facts, Values, and Cameras: Police Use of Lethal Force

The Oakland police is being sued for the killing of Demouria Hogg. The Huffington Post reports:

Oakland firefighters found an unresponsive man in the driver's seat of a BMW parked near a highway off-ramp one morning in June. They called the police department, saying a handgun was on the passenger's seat.
Police tried for an hour to rouse Demouria Hogg, 30, by using loudspeakers and firing beanbag rounds at the car. Hogg didn’t budge, police said. Hogg finally stirred when police shattered a passenger-side window with a metal pipe. It would be the last movement of his life.
One officer used a Taser on Hogg while another fatally shot him.  
It’s unclear what happened when Hogg awoke. Police said “a confrontation occurred.” An attorney representing the officer who fired the fatal shot said Hogg reached for the handgun.

This is an interesting case. What with the intense politicization of police use of force and partisan heated proclamations of value over fact, we tend to forget the standard in Tennessee v. Garner, and the fact that it's an objective one: force is justified when a reasonable officer would have probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. The fact that the suspect had a gun nearby (rather than, as in so many cases, an innocent item that officers claim appeared to be a gun) does not automatically exonerate the officers, but with the suspect dead, there's little to contradict their version that he reached for it. The strange part: the suspect was apparently sound asleep in the car for a long time before the police shot him.

But the fact that the officers, like all Oakland police officers, had lapel cameras that captured the event, makes things even more interesting. Note this bit:

“The video absolutely supports the officers,” said attorney Stephen Betz, who represents the female cop who shot Hogg, whose name hasn’t been released. “But if you’re suspicious of the police, the video that I saw doesn’t necessarily show what happened inside the car.”

Betz has hit on an inconvenient truth for those who support openness, disclosures, and social media activism: Cameras do not show "the truth". Footage of cameras is often grainy and confusing, especially if people are running or moving quickly. Moreover, to a disturbing degree, cameras show what we want to see.

In 2007, the Supreme Court decided a case called Scott v. Harris. Harris sued police officers for a car chase that ended in an accident (the police basically ran Harris off the road and he became paraplegic.) The jury awarded Harris compensation, but the Supreme Court took it back, relying on camera footage. Justice Scalia wrote:

There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. . . The videotape tells quite a different story [than Harris's version]. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.6 We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.

But is it? Dan Kahan, Dave Hoffman, and Donald Braman decided to find out. They asked hundreds of respondents to view the following video and answer a series of questions:

Kahan et al. found considerable variation in the respondents' assessment of the danger Harris posed and on the appropriateness of police conduct here. More disturbingly, they found that these assessments strongly correlated with people's political values.[1]

I haven't seen the tape that depicts Hogg's killing, but I don't know that a tape alone can condemn or exonerate anyone. This is, perhaps, why the Oakland police is trying different strategies with the footage: a few months ago, they showed tapes to the media, then to the public. The plethora of responses they are getting proves Kahan et al.'s point: the camera is not an undisputed arbiter of the justification of police action, and what it shows can be interpreted in dramatically different ways. On the other hand, not releasing the footage gives rise to serious concerns that the police has something to hide; moreover, there are instances in which the police officer's version of the events clearly contradicts the footage, such as in the killing of Samuel DuBose.

So, what is the police to do? It seems like the camera technology's availability has preceded any law or policy on such matters. This coming Friday, the Hastings Race and Poverty Law Journal is hosting a one-day symposium on policing, in which we will have a panel on body cameras including the Oakland Chief of Police. I very much look forward to hearing from him, and from two public defenders who have confronted issues involving lapel cameras, about the proper policies to handle such incidents and the evidentiary value of the cameras--in a way that respects people's diverse values, but does not tout them over the important inquiry about the facts.

[1] by the way: almost every year I replicate this study with my Criminal Concentration students, except I add a question to the demographic part: I ask them whether they want to be prosecutors or defense attorneys. The answers are independent of people's political perspectives--most, albeit not all, my students are liberal, vote Democratic, and self-identify as progressive--and, unsurprisingly perhaps, people's assessment of the video, including of facts such as Harris's speed, wildly diverges based on their future career choice.

Tuesday, November 3, 2015

New Issue of Social Justice: Beyond Incarceration

The journal Social Justice has a new issue out, titled Beyond Mass Incarceration: Crisis and Critique in North American Penal Systems. The issue examines the latest developments in incarceration rhetoric and policy and promises to be a very engrossing read. Among the highlights are an article by Marie Gottschalk, who expresses pessimism about the two strands of prison reform--racial justice and bipartisan initiatives. There are also reviews of Jonathan Simon's Mass Incarceration on Trial and of Cheap on Crime. The issue sells for $13.45, which seems like a pretty worthwhile investment in such interesting content.