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Trial by Twitter – how social media has made juries of us all

Few of us can refrain from speculation when faced with a crime story like Making a Murderer and Serial – or Mark Lundy or David Bain. Elizabeth Beattie talks to New Zealand legal experts about the influence of social media on our most high profile trials.

Had a conversation about Teresa Halbach’s RAV4 lately? What about Adnan Syed’s cellphone or O.J. Simpson’s glove? Chances are, the answer is yes. We’re in the midst of a true crime boom, and with it a deluge of online think pieces, updates, and conjecture.

And it’s not only exotic overseas murders that enthrall New Zealand’s armchair detectives. Almost seven years after it was first uploaded to YouTube, audio of David Bain’s 111 call and purported confession (“I shot the prick”) is still attracting comments.

“Bain more or less confessed to his Aunty, Margaret’s sister, that he did it. It was not allowed in court as it was ‘hearsay’,” says one. “Inaudible… definitely not to be used in court,” states another amateur lawyer.

David Bain leaves court following his not guilty verdict, June 2009.  (Photo by Martin Hunter/Getty Images)

David Bain leaves court following his not guilty verdict, June 2009. (Photo by Martin Hunter/Getty Images)

Then there’s convicted double murderer Mark Lundy. As debate about his guilt raged on following the verdict, The Spinoff”s own Steve Braunias, who covered the case for the NZ Herald, weighed in:

“That old tape of Lundy – made in the summer of 2001, casual in his shorts and yellow T-shirt, hungover from a session the night before, a hapless fatty there to help with inquiries, completely unaware he was about to be accused of the murders and placed under arrest after the camera was turned off – was playing to an audience who thought they could discern his guilt.

What a petty, hateful response. Maybe it was absolutely correct but I think the verdict was a gross injustice. I don’t think he did it.”

Search for Lundy’s name and you’ll uncover tweets hashtagged “guilty” and “child killer” and Facebook comments like “Bring back death penalty”, “Not a long enough sentence, he needs hanging”, and “I can tell he has guilty look in his eyes.”

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As news consumers and social media participants, we are disconnected from the protocols and procedure of such murder trials.

Legal experts see and hear information bystanders are not privileged to. Journalists too may be given additional information, but under strict gagging laws – and these details can cast a radically different light on the information that’s publicly available.

Fiercely held opinions regarding process, outcomes and evidence may stir a Twitter or Facebook frenzy – and frustration at “the system” – but how much do observers actually know?

I spoke to Sasha Borissenko and Kelly Ellis, both of whom are lawyers and journalists, and Dr Jarrod Gilbert, a sociologist and writer, about the relationship between court cases, social media and journalism.

Sasha Borissenko

Enrolled barrister and solicitor, former Fairfax court reporter and New Zealand Law Society feature writer, now editor of NZ Lawyer and Australasian Lawyer.

What do you think of series like Making a Murderer, The Jinx, and Serial?

I’m inclined to love them, I mean, who likes law school? But reading Joe Karam’s tale of David Bain, reading those really juicy criminal stories, got me through.

It’s the natural human disposition to be interested in that type of thing. Then in the same vein, it’s almost scare-mongering: there is a system in place, and while the public may assume the justice system is ‘bad’ it’s also got many hundreds of years behind it, so maybe it belittles that.

Otago University Dean of Law Mark Henaghan once said to me “A courtroom is theatre,” and seeing that environment play out, where you feel part of someone’s journey, you’re naturally inclined to think “that could be someone I know”.

With [these crime docu-series] it’s close to home, but it’s also escapism; it’s close enough to feel part of it, but it’s far enough away to feel safe.

Steven Avery, subject of the 2015 docu-series Making a Murderer.

Steven Avery, subject of the 2015 docu-series Making a Murderer.

What are your thoughts on the social media response to high profile New Zealand court cases? Do you read social media comments?

I try to never read the comments because I think they’re vile. I take so many issues with them. Often the arguments aren’t sound and are just to spark a response, there’s no regulation. What’s more, the majority of people are anonymous.

Comments in general are a way of online media making audiences feel a part of the conversation. Which is great – freedom of speech is a wonderful thing – but I don’t know how that fits in the media landscape where people are just trolling for the sake of it, for a lol.

It’s interesting that you say it’s about making people feel a part of the conversation, because in these shows, and in big court cases, people do feel like they’re an integral part of the conversation.

Totally, but you’ve got to consider with Making a Murderer, although it’s a documentary format, there are going to be biases, whether conscious or not. It’s in the filmmakers’ interest for it to play out in a certain way, thus we have to ask what are the motives behind it? Who are the relative stakeholders, who’s the target audience? Where is the money coming from, and what are the biases of the filmmakers?

It would be wonderful to think that it’s entirely objective but I’m disillusioned enough not to buy that. I think it’s important to ask these questions.

In terms of public response, if you were to compare Making a Murderer or Serial to a court case in New Zealand, is there a particular case that sticks in your mind?

Of course the Teina Pora case, that was the classic one where there was found to be a miscarriage of justice. It was wonderful in the sense that it got this guy off, and journalism played a big part in that. Then there’s David Bain, where again there was found to be a miscarriage of justice at the retrial. But in New Zealand there aren’t so many of these examples. I’d argue there’s not really an appetite for legal journalism here because we’re so small.

I think because [the docu-series subjects] are far away, people feel more inclined to bat for the underdog. But in New Zealand, it’s such a small environment and there’s a lot of fear, so when crime does happen we kind of demonise criminals – at least that’s my understanding, looking at the media or social media.

I personally love court reporting because it is very formulaic, but you don’t [explore] the emotional side or the profile of the defendant. Often we don’t know the full story, why the defendant was offending in the first place. So the defendant is seen to exist in a vacuum.

I was just recently reading over some of the Lundy comments online, mostly along the lines of “bring back the death penalty”, with the occasional “what if he’s innocent?”. It’s interesting to see that accompanying an objective news article.

Well if you think of the principles of innocent until proven guilty and hundreds of years of [legal] history, I’ve got to question half of these commenters’ understanding of the justice system. I’m not saying the justice system is good or bad, but it’s so important to a functioning society.

It’s strange to see these commenters still so active on the David Bain audio recording released after the trial.

That piece of evidence was inadmissible in court because it might jeopardise the trial. So it was considered not sound – and if it’s not sound enough for a court, why is it sound enough for internet audiences?

It’s dangerous with the internet because we haven’t gauged where to draw the line. Add anonymity, and I think it’s hugely problematic. But in saying that, I’m like an old biddy in a 27-year-old’s body.

Adnan Syed, subject of the 2014 podcast Serial.

Adnan Syed, subject of the 2014 podcast Serial.

And then last month there was discussion about whether Bain should receive reparations. The case still feels quite alive. It’s interesting how the media could potentially alter these discussions.

When I first started court reporting I was naive and got into heaps of trouble for taking a photo of the summary of facts with my phone – but that stuff’s going to happen to more and more. Maybe the justice system isn’t keeping up with these challenges and we do need to reassess, regulate and legislate.

The mainstream media is going through a tough time in every sense of the word. How do you try and service these ideas of the fourth estate, what’s in the public’s interest, open justice and freedom of speech, when some might say these values are no longer a reality?

I think in mainstream media, people bark on about the fourth estate and holding people to account, but how is that possible when there are fewer resources, people working harder and longer hours? Consistency and fairness is ultimately undermined. When you’re doing something like court reporting, where something you do could potentially impact someone’s life, their family, or their whole community…. the media still wields huge amounts of power. Saying that, I don’t think the public has any idea how much pressure is on journalists in this current tumultuous climate.

Twitter.com/sashaborissenko

Dr Jarrod Gilbert

Sociologist, Lecturer at the University of Canterbury, trustee for the New Zealand Public Interest Project, author of Patched: the History of Gangs in New Zealand.

What do you think of series like Making a Murderer, The Jinx and Serial?

I think they’re wonderful in part because they open up my academic area of interest to a wider public. But I think we have to be very mindful that in the reporting of crime in general, often you’re not getting the whole story.

I’ve found [these series] awesomely entertaining, but you’re never going to get all the facts that would be put before the jury.

And in terms of the public response across social media, have you followed that?

At least as far as the people I’ve taken note of, it’s all been fairly measured. I think people have taken them for what they are: insightful, potentially enlightening, but not the definitive last word.

They’re enlightening on a couple of different levels: About the case specifically, but also, and in my mind much more importantly, about opening up possibilities that people might not have thought about before – for example, the possibility that a person can make a false confession for a crime. I think that may have been lost on a lot of people before the popularity of these programmes. That there’s so many nuances to cases that may seem clear cut – they’re much, much more difficult the more you look at them.

And also that from time to time evidence ought to be questioned very, very hard, and the people giving it perhaps challenged as well. That includes people in authority, that includes police.

The testimony of Brendan Dassey in Making a Murderer for example – now it’s up to people whether or not they think he gave a false confession, but the statistics around false confessions are quite startling. It isn’t an unusual phenomenon by any stretch of the imagination, it’s remarkably common.

If you were to compare those kinds of cases to New Zealand, what comes to mind for you?

Making a Murderer is a stunning case, but there are some in New Zealand that, if not its equal, certainly approach it. Arthur Allen Thomas, that remains a whodunnit. It’s an incredible case where a guy was put behind bars for a very long time and he was put there, in very large part, by the planting of police evidence. What a sensational case, and to this day no one is sure who did it. There are number of suspects.

More recently of course, people will be more familiar with Teina Pora, where once again we’ve got confabulation and false confession to a crime he didn’t commit. Again, that opens up [issues around] police interrogation and also the mental health of some people accused of crimes.

The one I’m involved with, this kid in Christchurch, Michael October, it’s a brutal, terrible crime he was convicted of. He’s received a life sentence and is currently out on parole, but he still lives with a terrible stigma. The two people who did commit that crime I’ve spoken to, and Michael October was not there, and yet he’s still been picked for it.

Mark Lundy arrives at Wellington High Court for his retrial, February 2015  (Photo by Hagen Hopkins/Getty Images)

Mark Lundy arrives at Wellington High Court for his retrial, February 2015 (Photo by Hagen Hopkins/Getty Images)

Having watched a case unfold in court, every word spoken is so powerful. It’s a very stressful situation to be in and I can imagine some people panicking.

Yeah, particularly if you’ve been interviewed for a very long time by police, you haven’t had any sleep and they’re telling you that you’re going to prison for a very long time unless you cooperate. You can start to think “What the hell do I do?” and I guess some people are perhaps a little more susceptible to suggestion than others.

How well do the New Zealand news media handle these types of cases?

I think like anything, you see the very good and the very bad. You’ve got some extremely good journalism but there’s also a reality in the media that journalists want the front page, and editors want their front page to be better than the other paper’s front page. So there’s a tendency to ham up sensational details, which is not in anybody’s best interests except the shareholders in the media unit.

That’s not to be too cynical though, because there are some incredible journalists who I could not respect more, who do some fine work. Certainly Martin van Beynen, who after the Bain trial in a very succinct period raised some very serious questions around David Bain. Regardless of what you think of that case, it was a stunning piece of writing.

What are your thoughts on how court cases in general are reported here?

The one thing that bugs me more than anything is as soon as, say, a murder trial ends, the first people who are interviewed are the victim’s family and they’re asked “How do you feel about that sentence?” And, quite understandably, they yell and scream and say it wasn’t harsh enough, because that’s how we would all react.

If you’re personally involved in a case like that, no punishment will be harsh enough. That’s why the state takes over sentencing and trials so it can be more rational. I think it lends itself to the worst type of sensationalism when the victims are exploited in that way, and it certainly doesn’t lend itself to sober reflections on what has occurred.

That’s not to say that the voices of victims are not important, they absolutely are, but in that immediate, white-hot aftermath I don’t think they are the ones to asses the merits of the case. It gives an impression that there’s some sort of outrage [about the sentence]. There might well be an outrage, but let’s not let those with their blood boiling make those calls. Let’s at least wait till their blood’s dropped to an ambient temperature.

Do you think that approach creates a perception that our sentencing isn’t harsh enough?

Of course it will, and that’s how these things are framed. The only voice is saying “let’s get harder” and “let’s lock them up for longer” – certainly that’s the case in the political realm – and we’ve reaped what we’ve sowed. That’s why we’ve got a burgeoning prison population which is solving very few problems and potentially creating a whole lot more. That’s reckless. We need to have much more sober and rational responses to these things. It may well be we come to exactly the same policy decisions, but let’s make sure we’re getting there for the right reasons.

If you ask people about the crime rate, most people will tell you it is increasing. Only a very a small percentage of the population will say it’s decreasing – and it has been, since the 1990s. That is almost exclusively to do with the fact that we report the sensational crimes so disproportionately to the impact they have on our lives.

Furthermore, we tend to sensationalise only certain crimes of the same type, for example when a woman is ripped off the road in Remuera there’s a huge outcry because it seems to touch the middle classes. But it’s such a rare occurrence it shouldn’t concern us in any great degree – particularly when the murder rate in New Zealand has been plummeting for some time – as opposed to the murder of a South Auckland Māori lad who will get very little attention. We sensationalise those that the middle classes tend to worry about.

There’s a problem with diversity within our newsrooms. Do you think that that is a reflected in those types of story selections?

Possibly, but perhaps more so it’s a reflection of what piques the interest of readers. If you think about a couple of very high profile and tragic killings of women that occurred earlier this year, one in Remuera, one in Te Atatu, the massive outpouring of grief was much greater than it might have been for certain others. That’s not to say the outpouring of grief or the reaction was wrong, it was absolutely fundamentally right, it’s a positive social reaction to have, however we can see that it’s disproportionate to the killings of other people. Some seem to pique the interest of the public more than others, arguably it speaks to certain elements and prejudices in society.

Is there anything else that comes to mind when thinking about this topic?

The only thing is, the reporting of crimes can have really long impacts. The one that I’m most familiar with is the Ambury Park rape which happened in 1986. The details of that case were outlined in two prominent publications in New Zealand, very important and excellent articles, but I think the details resonated with the public so much – it was an absolutely horrific case – that it had really significant long-term implications for government policy.

The reporting of details and sensationalism of certain cases won’t just resonate in the short-term, it can often ring a bell that will be heard for a very long time.

Twitter.com/JarrodGilbertNZ

Kelly Ellis

Barrister, human rights advocate and commentator, former journalist.

What do you think of series like Making a Murderer, The Jinx, and Serial?

I watch these things with morbid fascination and hope others do. Gritty, unsanitised perspectives that don’t follow the heavily-massaged narratives common in media are really important. They challenge the culture shaped by a mostly right-wing owned media.

Robert Durst in a still from the HBO documentary The Jinx.

Robert Durst in a still from the HBO documentary The Jinx.

If you were to compare the public outcry surrounding these cases to a New Zealand context, what past trial or trials come to mind for you?

The Arthur Thomas case is a great example. That was an absolute travesty, the cop who planted the evidence should have been jailed, instead he was a celebrated hero.

Do you think that case would be handled differently today, through social media and modern news media?

Quite possibly, because social media reaches further now than newspapers reached, say 40 years ago. It’s amazing the number of people who are on social media, and I imagine if that happened today there would be more of a hue and cry about the case. Perhaps there would have been people protesting in the streets – because that was the type of thing that should have happened. It’s just mind-boggling to me that the cop who was fingered for planting the bullet case ended up having a funeral where police hierarchy attended and talked about what a marvellous person he was.

I’m not saying that he didn’t do some other good things in his life, but you can completely fuck your entire reputation just through doing one bad thing, and somehow he managed to get away with that.

Comment is free, but when it comes to court cases, just how freely do you think these opinions should be publicised?

I’d love it if some opinions were suppressed, but the reality is that my views don’t matter in a world where information is so freely available. There was a National Party MP who was charged in court [for breaching a suppression order] and since then suppression orders have been in force, effectively blacking out coverage of the case to date, yet an Australian site gives immediate access to the details of the person and of the charges he faces.

The point is, as a lawyer I want to suppress everything! But as a human being, as opposed to a lawyer, I think that suppression laws are too vigorously imposed, especially in New Zealand. While I see the need for some protection for some people, what’s the point of having that protection if an Australian website can publish all that information you’re trying to suppress? Suppression laws almost become a scofflaw.

With that in mind, should social media be regulated more strictly in regards to court cases?

I don’t really think it can. That’s the trouble with the internet – if information is suppressed, it just finds another way to come out. I’m for more openness in courts. We currently have a system where victims’ names are suppressed because it is so shameful to be offended against. We need to put the shame on the perpetrators who hide behind the skirts of those they offend against.

What impact do you think journalists and the news media have on high profile cases?

The media, of course, determines what is high profile and what isn’t. This not only reflects social mores, but shapes them too. Until recently, police sent the media lists of those convicted of drink drive charges. These would often be published verbatim by newspapers, particularly in the provinces. It’s still the case that a drink driver is more likely to get reported than a rapist or basher. I think the most fascinating stories in court are not covered by the media. I’m not sure why. I guess there’s more joy in sniggering about drink drivers than addressing the tide of women’s blood that covers the carpets of our criminal courts.

And what about the impact of social media on juries in high profile cases?

We don’t get to ask juries how they came to their decisions, so any comment would be speculative. Juries are frequently asked not to search on the net but, knowing human nature, one can easily suspect that this is what many people do. Judges, of course, have always given directions about listening to the evidence, rather than the scuttlebutt.

A jury gets its legitimacy by being our own people, effectively, judging us. This is why we need to avoid having a monocultural judiciary prosecution service or for that matter, media, because rather then it being white people prosecuting brown people, or men ‘”looking after” women, or white people writing about brown people, we need to have more [diversity of voices]. The only way you can get that is by ensuring that we’ve got brown women journalists, we’ve got brown women lawyers, women judges, women prosecutors.

Until we can seriously upset the current white male-dominated model that prevails in the press, in the court, in the government, and almost every other institution you can think of, we’ve got a hard road.

If there was more diversity within the news media, do you think that we would see a different framing of a lot of these stories?

I’ve got absolutely no doubt, no matter how much we’re taught to be objective as journalists and to remember that reporting is always quoting people and making sure that it’s other people’s words and not our own unless we’re writing an opinion piece. Even if we’re doing that, we’re still viewing it through our own lens and we’re selective.

The things that we agree with are more likely to get reported, and the things we disagree with are less likely to get reported and that’s just human nature. You can’t criticise a human being for being like that, but you can criticise an organisation that allows that to happen.

Twitter.com/KellyWhangarei

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