Wrongful Conviction Journalism: Lights and Shadows

I’ve just finished watching the second season of an Israeli documentary series titled Shadow of Truth, which takes on a series of chilling rape-murders that occurred along one of Israel’s main highways in the 1970s and 1980s. Hitchhiking was very common at the time, especially among young students and soldiers, and more than ten women met violent deaths along the highway.

The most famous of these cases was the murder of the soldier Rachel Heller, which the police pinned on a young man called Amos Baranes. Baranes was subjected to the third degree (three consecutive sleepless nights, untold violence, a fabricated reconstruction of the murder) and gave a false confession, and fought for his innocence ever since. He was released after eight years amidst grave doubts about his guilt, and later acquitted in a special hearing because of the immense police misconduct.

But Heller’s murder was only one among many cases that shared forensic findings about the method of committing the crime. Importantly, at the time, each of these murder cases was investigated separately; the concept of a serial killer arrived fairly late to American criminology as well (famously popularized by FBI agent Robert Ressler, whose story is fictionalized and stylized in Mindhunter) and even later to Israel, where most people would doubt the possibility of such monstrosities happening in a small country with a small population. It was only in the late 1980s that a retired police officer, Ezra Goldberg, theorized that all the murders could be attributed to one perpetrator.

The series points the finger at convicted rapist Shlomo Haliwa, serving a life sentence for one of the murders in the series, the murder of soldier Orly Dubi. It’s an attractive theory. Haliwa was convicted of murdering Dubi while on vacation from prison, where he was serving a long sentence for five rapes (American readers may be incredulous that anyone, let alone a dangerous, violent rapist was let out on vacation; Israeli prison sentences allow for vacations, and those were different times. I doubt someone like that would receive a vacation today.) There is some circumstantial, inconclusive-but-disturbing evidence tying him to at least two other murders (including a full confession, albeit one extracted by force by the same team that tortured the false confession out of Baranes.) His prisoner file is missing, so it is impossible to establish whether he was on leave from prison on the nights of some of the murders. He is heard on the series, speaking by phone, threatening the show’s producers, which in itself is not evidence of guilt (it is, however, evidence of being a terrifyingly violent, unpleasant, and psychopathic man, and good reason to be concerned about his impending release in 2024; he will be 75 years old, still healthy, tall, and broad, and still a potential danger to women, I suspect.)

I’m torn on whether I find the effort to pin the murders on Haliwa convincing, and arguably journalists should not be tasked with the same care that the criminal justice system should exercise when pointing fingers. But the series made me think about the broader context of these shows. The 1980s and 1990s were characterized by cop-and-prosecutor shows that tended to be on the side of law enforcement. In a “the making of” featurette about Law and Order, the producers plainly admit that the concept of the show was born of the notion that their audience was getting more conservative and more punitive and would be receptive to this messaging. It was only later, in the late 2000s, that we started experiencing the success of wrongful conviction shows like Serial and Making a Murderer. My unsubstantiated suspicion is that these shows emerged at a time in which the public was perceived as losing its appetite for mass incarceration, and gaining more distaste with police violence, prosecutorial corruption, and the system’s chronic inability to admit its mistakes (the broader context of recession-era politics probably also plays a part.)

The emergence of shows like this in Israel is understandable. It’s not a coincidence that Shadow of Truth focused on the two most famous cases of miscarriage of justice in Israel–the wrongful convictions of Baranes and of Roman Zadorov (who is still in prison doing time for a murder that most people who know what they’re talking about are certain he did not commit.) In Israel, too, there’s a sense of disgust with police use of force (especially against minorities) and police corruption; as I write this, members of the Ethiopian Israeli community are protesting the police shooting of young Solomon Tekka, expressing frustration and anger for decades of mistreatment by police. Cases of police officers receiving bribes and exacting sexual favors are unfortunately not rare (these developments really echo what’s been happening in the American discourse lately.) On a less outrageous basis, Israeli citizens are exposed to rudeness, indifference, and lack of professionalism from police officers on a daily basis, starting with traffic stops (what goes on here echoes the findings of Chuck Epp, Steve Maynard-Moody and Don Haider-Markel in Pulled Over.)

At the end of Shadow of Truth, we are told that the police investigation into the highway murders of the 1970s has been reopened. Similar legal developments happened after Serial and Making a Murderer. That, in itself, is great news from my perspective. I’ll take justice over finality any day. The problem is that journalists do not select their topics at random. Documentary series are artworks that seek public viewership, headlines, and ratings. Journalists pick cases that they think will evoke outrage and sympathy: young and attractive victims, heinous violence, and a sympathetic possibly-wrongfully-convicted mark. When a case like this is picked for journalistic attention and sparks a renewed police investigation, how many similar injustices are left in the dark? The history of Israeli law enforcement flaws and corruption raises at least two possibilities for broader examination. For decades, the national Pathological Institute (the equivalent of the coroner’s office) was run by Yehuda Hiss, whose corruption and unprofessionalism was mired in scandals ranging from lying to trading organs. Why have we not reopened every single case he meddled with? Also, since we now know that at least two confessions–by Baranes and Haliwa–were extracted using horrifically coercive means by Shaul Marcus, who was at the time a high-ranking police investigator, why are we not reopening every single case that his violent hand might have touched? I worry about the vast number of miscarriages of justice that we miss when journalists shine a light on cases that they choose for celebrity reasons, rather than through systematic investigation. It is not the journalists’ job, of course, to conduct such investigations. Which is precisely why we shouldn’t be waiting for them to shine the light on injustice for us; the criminal justice system has to do better on its own initiative.

Madam Secretary and How Things Could Be: Democracts, What Is your Criminal Justice Agenda?

The wonderful CBS series Madam Secretary, whose fifth season is out, features Téa Leoni as Elizabeth McCord, a Secretary of State in a parallel universe in which responsible adults with nonpartisan interests are at the national helm. It is almost difficult to watch the series against the backdrop of the news; episodes in which the State Department team races to find humanitarian solutions for climate refugees collide with the Trump Administration rescinding English, soccer, and legal aid for migrant children in government custody. In real life, throwbacks to Nixon and Reagan proliferate, dragging us kicking and screaming into the stone age in which the war on drugs was thought to be a good idea; on the show we sign nuclear weapon treaties and command the respect of the civilized world.

Among the many interesting things about the show is its verisimilitude in the face of changing political realities. A moderate Republican President uncomfortable with the isolationist, MAGA-like foreign policy espoused by his challenger decides to run as an independent… and wins. Demographically and ideologically diverse staffer teams come together to find creative solutions for international problems. Lurid scandals do not control the news cycle (or, if they do, we don’t see them.) Consummate professionals in the public eye have happy, functional marriages with happy, well-adjusted children. Oh, and a series of real-life reasonable, accomplished, experienced Secretaries of State–Madeline Albright, Colin Powell, Hillary Clinton–GUEST STAR in one of the episodes. In short, if you want to escape to an alternative universe, this show’s got your number.

Here’s what is interesting for our purposes: the Secretary of State (an accomplished, well-informed middle-class white woman from an academic background, with a strong record of achievements at the federal level–sound familiar?) prepares to run for President, she is asked by her campaign advisor, Mike B., to turn her gaze toward domestic issues. What’s the first one that comes to mind for her? Criminal justice reform! Inspired by the plight of a poor single mother she meets while on jury duty, Secretary McCord applies her international perspective to U.S. prisons, reminding Mike B. (and the audience) that we have plenty of work to do in that department before we join the civilized world.

If Madam Secretary is the reality we aspire to create on Nov. 2020, what do the Democrat challengers think about criminal justice reform? I’ve started to look at the candidates’ websites and it seems like the criminal justice aspects of the campaigns need to be better fleshed out. I’m not particularly surprised these read like clichés from a public protest; after all, with the laudable and welcome public interest in criminal justice reform came oversimplification and misinformation, and these candidates are trying to appeal to people who think they understand mass incarceration and how to end it. Also, there’s only so much that the federal government can do–most of the U.S. incarceration problem, together with access to court, bail, policing, and reentry policies, happens at the state and local levels. But even with the fairly slim issue lists we do have, a few themes emerge:

Everyone Loves Legalized Marijuana. Pretty much all platforms advocate for marijuana legalization, for the classic Cheap on Crime/bifurcation reason: “let’s stop criminalizing people for smoking a joint so we can spend our energies on the ‘real’ criminals.” Plenty of chatter, also, about “ending the war on drugs”; particularly well informed candidates, like Bernie Sanders, also argues for ending civil asset forfeiture. Nobody, however, talks about legalizing other drugs. The opioid epidemic is discussed as a health problem, but there are no calls for legalization in that respect–only for finding treatment options.

Sentencing Reform. A call to end mandatory minimums and, more generally, pursue “sentencing reform.” These can be seen as a continuation of the Obama-Trump trend (this kind of bipartisan reform was the least disrupted Obama-era trend). Not a single peep from anyone except Buttigieg about death penalty abolition.

End Private Prisons. The candidates uniformly call for a divestment from private prisons, echoing Obama’s largely-symbolic move to stop domestic incarceration of federal prisoners in private facilities. Not a word about the much wider practice of detaining immigrants in private facilities.

Tough on Criminals We Dislike. Democratic candidates are very clear on the sympathies their constituents have for people caught in the system, and therefore know that these sympathies do not extend to certain categories of criminals: cops who employ excessive force, domestic violence perpetrators, and white mass shooters. With respect to these categories, the reform call is reversed: candidates call for strengthening the Violence Against Women Act, to address police reform so that shootings are avoided, and to push for gun control reforms. Warren emphasizes the need to hold white collar criminals accountable.

I am curious to see whether these folks’ fictional counterpart, Elizabeth McCord (will she run as an independent or as a Republican? The show shies away from the possibility that she might become a Democrat) adopts similar principles. It seems like we’ve pretty much settled on what the candidates imagine that their constituents want, probably with considerable justification.