In this episode, a private investigator, a defense attorney, and a journalist talk about the places criminal justice and media collide.
“Taking the P.I.S.” is a new podcast about criminal justice by Pursuit editor Hal Humphreys and Texas defense attorney Reagan Wynn. “Taking the piss” is a shortening of the British idiomatic phrase, “taking the piss out of,” meaning to mock someone. The hosts and their guests often take the piss out of each other and behave in ways that are Profane, Irreverent, and Snarky. You’ll note that those initial letters spell out “PIS.” Thus, the podcast title.
[You can get this podcast at Stitcher, Apple podcasts, Spotify, and IHeartRadio.]
In episode 2, Reagan Wynn and Hal Humphreys chat with Pamela Colloff, a National Magazine Award-winning journalist who’s spent decades reporting on how wrongful convictions come to pass. Colloff is based in Austin, Texas and covers criminal justice for ProPublica and the New York Times Magazine. Before that, she wrote for Texas Monthly for many years.
The topic: the places criminal justice and media collide — how media coverage can influence juries, the ways media narratives slant before and after a trial, and whether press coverage of flaws in the system can spur reform. You’ll find the full episode audio below, and an edited transcript further down.
Parental Advisory – Reagan and Hal sometimes use foul language. This podcast is not intended for children.
Hear the full episode here.
Transcript (partial)
How Stories Convince People to Care About Injustice
REAGAN WYNN: Pam, how do you choose the stories you write?
PAM COLLOFF: In recent years, I’ve been starting with an idea I wanted to write about and then trying to go find the narrative that will make people care about those issues. I have looked at junk forensics recently. I have also looked at jailhouse informant testimony. Those two things are both leading causes of wrongful convictions. With each of those, I sought to find a case or character who would lead you through this issue you might now care about. But you might care about this particular person and their journey through the criminal justice system.
HAL HUMPHREYS: It seems like a hard sell to tell people, “Hey! Blood spatter analysis is bullsh*t! You really should care about this.”
PAM: Right! So in that case, what I did try to make people care was I wrote about a man named Joe Bryan, a beloved figure in the central Texas town of Clifton. In 1985, he was accused of murdering his wife, a great surprise because he had no criminal record, was an upstanding citizen in the community. I told that story through Joe’s eyes, and I also went to bloodstain pattern analysis school. And I got this same training as the “expert witness” in Joe’s trial. Doing those things was coming at it from a different approach than just preaching to you that bloodstain pattern analysis is largely a bunch of bunk.
HAL: So the next trial we have where we need a blood spatter analyst, you could be our expert witness?
PAM: Yes! I have 40 hours of training, which is what many of these guys have.
Pre- and Post-Trial Narratives
REAGAN: It seems to me that different narratives come out in the media before a trial than come out afterwards. And it seems that the coverage narrative before a case is tried — and maybe this is my bias — seems to be pro-prosecution and anti-defense. Whereas the narrative afterwards is the injustice and the wrongful conviction. Pam, what do you think about that?
PAM: I think that is true. One of the things I’ve talked to journalists about is how we can better educate reporters about red flags to look for when they’re covering a trial. I’ll give you an example: just the fact that forensics is not always science is a concept that may not be familiar to your average reporter who’s covering courts and cops. Our culture is so permeated by this idea that forensic science in all forms is the gold standard. The average reporter does not have time to take a week-long class in blood spatter to better understand it before he/she covers a trial. So a lot of that is helping to educate reporters.
But yes, I think there are these different types of narratives, and they’re almost diametrically opposed. On the front end, the defendant is evil — I’m thinking of a case I covered, of a woman who was accused of murdering her foster son via salt poisoning. Long story short, the child had a health condition that led to him ingesting salt. The mother, Hannah Overton, before her trial in Corpus Christi, was characterized as a monster. A woman who wanted to kill a little boy. And everything she did: the way she might smile at her family in court, any gestures she made when she testified, everything was seen through that prism. And then of course, when she’s later exonerated, she’s characterized in extremely laudatory terms. That 180 can be very jarring.
HAL: Before a trial starts, the sexy story is always, “This person did a horrible thing!” And that’s the easy one to tell.
PAM: Usually the defense’s story in cases like this is complicated, right? in Hannah Overton’s case, it’s that her son has this condition called pica. What is “pica”? How common is it that children ingest lethal amounts of salt? This involves six different experts and it’s very dense medical testimony. Whereas this story of “this is a story who snapped and killed her son” is easy to understand … So many cases are tried in the media first. It’s important to counteract that, but [the defense is] also hamstrung by what you can or can’t say before trial.
REAGAN: From a defense attorney’s standpoint, it is very hard to make the choice to talk to a reporter about anything because I have this natural fear, or bias, that no matter what the actual truth is, the story that’s going to go in the paper is not going to be helpful to me.
PAM: I think that’s probably a well-founded fear … Your commitment is to your clients, and you have to be careful about talking to the media. My hope is: people are more and more aware of the fact that wrongful convictions are not as uncommon as we’d like to think they are, I hope raises people’s consciousness in general, both reporters and jurors, to be a bit more aware of looking for inconsistencies in narratives. When I started this reporting 20-odd years ago, you were seen as crazy if you suggested anything about forensics or jailhouse informants being wrong. I hope raising consciousness about that through DNA exonerations, even though Netflix true-crime shows, maybe helps change the conversation.
Importance of Real Investigative Reporting
HAL: What I would love to see is a beat reporter who doesn’t just take the information coming from the DA, but they do some investigative work ahead of time.
PAM: Right. One of the things that’s difficult is if a [beat reporter] has to file a story every day and is going from one case to the next, they can be a great reporter, but they literally don’t have the time. And they also in most newsrooms no longer have the institutional support of the wise older editor who covered courts for 20 years and can give them advice on what to look for. They’re flying solo. A lot of times it’s not bad intent, there’s just no time.
HAL: The death of the magazine, and of the kind of reporting you’re talking about, that’s a systemic problem. We need people like you, reporters who are under really strict editorial standards. Tell us about the editorial process, Pam.
PAM: Sure! I have to provide unbelievable amounts of documentation to get anything into print. I have to footnote virtually every sentence of a story I write and have it backed up either by documents or a source who a fact checker can reach on the phone. My last story took three fact checkers. That is not possible at a daily newspaper, nor is having six months to explore a case and read every document. [We need] local reporters who can spend that extra time digging. Just the time to think.
How Trial Press Changes Behavior
REAGAN: When there is a lot of media coverage on a case, I think the lawyers act differently, I think the judge acts differently, I think the witnesses act differently, and I think the jurors act differently. And if you stick a camera in the courtroom, it gets exponentially worse. That’s one of the things that worries me the most: the process is set up to get truth out if everybody does their job the way they’re supposed to. But if you throw this X-factor in that changes the way everyone does their job, it can lead to bad results.
PAM: I couldn’t agree more. In principle, before seeing how it works, I would have said, “Of course we should have cameras in the courtroom! It should be as transparent as possible!” But having seen exactly what you’re talking about, I really think it just changes the whole mood — the OJ trial being the ultimate example of that, right? People are performing for the camera and not doing their job for the jury.
How Pre-Trial Media Influences Juries
REAGAN: I think it has a tremendous effect. We give lip service to presumption of innocence. I don’t think people really show up for jury duty and presume people innocent. And when you have the media in the case — I think it’s human nature to feel like something bad happened, and you want a bad person you can blame for it. We’re going to do something to this bad person, and that’s going to fix the problem.
And I think that’s how people show up for jury service, their state of mind. You can file a motion for change of venue; good luck with that. You have to try to figure it out in the jury selection process and hope the judge gives you the time you need to talk about media issues with the jurors and get them to be honest with you — and figure out who just can’t fairly serve on the jury.
Media, Justice, and Victim’s Rights
REAGAN: What does justice mean? Who is justice for? Is it just for the defendant? Is it just for the victim? Or is it for all of us? What I really think is the answer is that justice is supposed to be for all of us. That’s why we don’t let the victim’s family decide what happens to somebody. I think we have lost sight of that. I understand why someone who’s lost a family member or something terrible happen, why they should have some input in the system. But right now they’re driving the train.
“What does justice mean? Who is justice for? Is it just for the defendant? Is it just for the victim? Or is it for all of us? What I really think is the answer is that justice is supposed to be for all of us.” —Reagan Wynn
PAM: What I’ve seen in wrongful conviction cases I’ve written about is the victim’s family unfortunately becomes a pawn of prosecutors intent on making sure their misbehavior is not looked at. What’s deeply unfair is not only are those families not getting justice, but often they’ve been lied to, and it’s very hard to undo years of believing.
A quick example: The first wrongful conviction case I ever wrote about was Anthony Graves, who was on death row and incarcerated for 18 years for a multiple murder in Texas that he was later exonerated of. The victims’ family had been told for years by the DA — who P.S., was later disbarred because of misconduct in this case — that Anthony murdered their family. Even after Anthony was exonerated, it was difficult for them because they’d been lied to for so many years. It’s a tragedy all around.
HAL: The case you wrote about, Michael Morton, the person who actually did the killing was left on the streets and killed someone else.
REAGAN: When the trial was going on, the media coverage clearly made [Morton] out to be the bad guy. Then after things came out about what was going on in Williamson County, the narrative flipped, and the right thing happened.
PAM: It’s that shift we were talking about. Michael Morton was convicted in the mid-80s. The hang-em high culture was in full effect at that time. But when I interviewed him, he said it was so confusing. He had come to think of reporters as people to be feared, people who were extensions of the prosecution. And then when he was exonerated and had this exact opposite coverage, it was very confusing to him, that shift.
The Irony of Celebrating Exonerations
HAL: We rightfully celebrate exonerations. But we shouldn’t have to be in a position to celebrate!
PAM: I’m so glad you wanted to talk about this! Here in Texas, it’s become fairly common – top story on the news is a man walking out of jail with with his lawyer and a big smile on his face because he’s just been exonerated. It’s this happy moment. And there’s so much pain and anguish that we never talk about. We seem to want these narratives to be nothing but uplifting. Anthony Graves or Michael Morton, when they speak, they talk about finding forgiveness. You don’t hear anger in their voices. People really respond to that! I’ve wondered what it would look like if we created the space for people to be angry. To have a press conference and express the rage they’ve felt for the 20, 30 years they’ve spent in prison. I wish we could do that.
REAGAN: I’ve worked on an exoneration case, and you feel good. But all of a sudden you realize we’re gonna break our arms patting ourselves on the back for unf*cking something that we f*cked up. Because it got f*cked up in the criminal justice system. We did this. I think there’s almost this fear that if you’re not magnanimous and you don’t show grace, the people who run the system will just go, “Fine, then we won’t fix this anymore.”
PAM: Right. And I think unfortunately, often the wrong lesson is taken: “See? The system does work! We figured out the mistake. Look, we get it right eventually!” Instead of the lesson being: Oh my god, what are all the factors that led to this person being wrongfully convicted, and how are those factors still at play every day in our courtrooms? And what can we do to address them? People don’t make that connection a lot of times.
“I think unfortunately, often the wrong lesson is taken: “See? The system does work! We figured out the mistake. Look, we get it right eventually!” Instead of the lesson being: Oh my god, what are all the factors that led to this person being wrongfully convicted, and how are those factors still at play every day in our courtrooms? And what can we do to address them? People don’t make that connection a lot of times.” —Pam Colloff
HAL: Anyone who’s not involved in the criminal justice system: Go watch a trial unfold. The evidence that does not get in front of those 12 people is astonishing to me sometimes.
PAM: That’s the number one thing I’m struck by every time I dig into a case. I come at the end, after somebody’s been convicted, often many years after. I feel like my job is to provide context, and to provide a counter-narrative to what was presented in the courtroom. That context: What you see in court is like an iceberg, you see like 10% of the story. But you don’t know so much context for what happened. All these things that in a magazine story I can tell but in a courtroom you can’t.
Does Criminal Justice Reporting Spur Reform?
HAL: Once someone is convicted, getting that conviction overturned can be laborious, long-term, nonstop painful to even get the CCA to say “no.” I think it relates to media: Pam’s and other people’s work, they’re shining a light on this process, and I think, in cases like Joe Bryan, the only reason he got any consideration at the Court of Criminal Appeals was because of your reporting, Pam.
PAM: Thank you. I’m not sure they gave him much consideration. [Read a summary of the court’s decision here.] From what I’ve seen through other cases I’ve written about where the CCA did take action, it depends on who’s sitting on that court at any given time. Right now, the makeup of the court is not such that they care that the expert witness in a case was wrong, which is amazing to think about.
REAGAN: It’s a mindset. People who work in the system will tell you: A lot of this stuff is bullsh*t. If you don’t work in the system and you just watch TV and you think prosecutors are the good guys, and they wear the white hats and defense attorneys are the bad guys, and they wear the black hats. Prosecutors wouldn’t lie to us. That’s how things get screwed up. That’s how jurors make bad decisions.
HAL: Pam brought up true crime podcasts and Netflix shows, and obviously Pam’s reporting. I think a lot of people are having their eyes opened to junk science. And Pam, give us some sense of the response you’ve gotten from the jailhouse snitch story.
PAM: There’s a group of progressive prosecutors, who I know — the story was passed around, and people talked about “what can we do to remedy this?” The Innocence Project has a terrific initiative, working with legislators to introduce legislation that would curb and track the use of jailhouse informants. I always wish these stories would come out and there would be immediate action and change. It’s hard to write about these things and see so little to no change. It’s kind of shocking.
I was struck when writing about junk forensics that science looks forward. Science is about innovation and revising what we thought. And the legal system is based on precedent, looking backward. The tension between those two things! The court system is really not designed to be innovative, to respond to new things we’re discovering.
HAL: Pam, thank you so much! This has been really educational.
About our brilliant guest:
Pamela Colloff is a senior reporter at ProPublica and a staff writer at The New York Times Magazine. Prior to joining ProPublica and the Times in 2017, she was an executive editor and staff writer at Texas Monthly. At Texas Monthly, Colloff earned a National Magazine Award in Feature Writing for her 2012 story, “The Innocent Man.” She is a six-time National Magazine Award finalist. Her 2010 story, “Innocence Lost” — about a wrongly convicted death row inmate named Anthony Graves — was credited with helping Graves win his freedom after 18 years behind bars. [bio from ProPublica.org]
Stories by Pam Colloff referenced in the podcast:
“The Innocent Man” (Story of Michael Morton‘s conviction and exoneration for murder)
“Innocence Lost” (Story of Anthony Graves’s conviction & exoneration for multiple murder)
“Hannah and Andrew” (Story of Hannah Overton’s conviction & exoneration for poisoning her son)
“Blood Will Tell” (Story of Joe Bryan’s murder conviction & problems with blood spatter analysis)
“He’s a Liar, a Con Artist and a Snitch. His Testimony Could Soon Send a Man to His Death.” (Story of jailhouse informant & conman, Paul Skalnik)
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