December 11, 2017

'Making of a Murderer' inspires a bitterly contested decision

The media evinces justifiable pride these days over so much great work — on sexual harassment and myriad other topics. For sure, it's mixed with anxiety over shaky business models, a Trump-fueled decline in public esteem and painful screw-ups, such as those of late by CNN and ABC News.

And then there's this frequent occupational reality: press achievements that come crashing or go unacknowledged. The limits of journalism are typified by a troubled young man named Brendan Dassey.

On Friday, a federal appeals court in Chicago released a rather astonishing 4-3 decision in which it overturned a lower court and upheld a murder conviction against Dassey, a learning disabled Wisconsin man who was badgered by cops (at age 16) into a murder confession. The interrogation video was a central element of a Netflix series, "Making of a Murderer," an exploration of apparent police and prosecutorial misconduct that got tons of attention after it premiered on Dec. 18, 2015. Here's a Rolling Stone piece, one of many.

As much anger and conflict as the 10-part series generated about the conviction of the central figure, Steven Avery, there was virtual consensus that his nephew, Dassey, was screwed. 

Even the reviews that underscored ambiguity about the whole Netflix project, such as in The New Yorker, were taken aback by Dassey's fate. The New Yorker, for one, tagged him "a stone-quiet, profoundly naïve, learning-disabled teenager with no prior criminal record, who is interrogated four times without his lawyer present. In the course of those interrogations, the boy, who earlier claimed to have no knowledge of (the murder victim), gradually describes an increasingly lurid torture scene that culminates in her murder by gunshot. The gun comes up only after investigators prod Dassey to describe what happened to (the victim's) head."

So he was indicted and convicted. It was upheld in state court, then moved to federal courts where it was reversed. Now the entire appeals court decides the confession was legitimate and upholds a life sentence. Even the majority opinion, written by Indiana moderate David Hamilton (President Obama's first judicial appointee, in 2009), concedes, ""He was young. He was alone with the police. He was somewhat limited intellectually. The officers’ questioning included general assurances of leniency if he told the truth, and Dassey may have believed they promised more than they did."

In fact, his IQ was 83.

But in what could be part of law school class on the profound criminal justice issues, notably confessions, Hamilton says he looks guilty. Those who concur are law and order conservatives Frank Easterbrook, Michael Kanne and Diane Sykes, who was briefly a Milwaukee Journal reporter before heading into the law. She was considered by Trump for the Supreme Court vacancy he filled with Neil Gorsuch, and her-ex husband, Charlie Sykes, is a longtime conservative radio talk host (and Trump critic from the right).

The majority take prompts two rather astonishing dissents by one or more of three judges: Diane Wood (who was always on Obama's short list for the Supreme Court), Ann Williams (a Ronald Reagan appointee who was the first black female on the Chicago federal bench) and Ilana Rovner (a Reagan appointee and saint of a person who escaped the Nazis in her native Latvia as a child with her mother).

Here's Wood: "His confession was coerced, and thus it should not have been admitted into evidence. And even if we were to overlook the coercion, the confession is so riddled with input from the police that its use violates due process. Dassey will spend the rest of his life in prison because of the injustice this court has decided to leave unredressed. I respectfully dissent."

And Rovner: "He was young, of low intellect, manipulable, without a friendly adult, and faced repeated accusations, deception, fabricated evidence, implicit and explicit promises of leniency, police officers disingenuously assuming the role of father figure, and assurances that it was not his fault … Even under our current, anachronistic understanding of coercion, Dassey’s confession was so obviously and transparently coercively obtained that it is unreasonable to have found otherwise."

It's ironic — maybe tragic — that Richard Posner, generally conceded to be perhaps the most influential judge-academic of his generation and the most influential judge not on the Supreme Court, suddenly and surprisingly quit the Chicago appeals court and retired in September at a still prolific 78. If he were around, the odds are that he would have voted with the dissenters, made it 4-4 and thus affirmed the earlier reversal of Dassey's conviction. 

But no. Dassey will remain in prison, it would appear, until he dies. It might prompt you to download the Netflix series. And, as you watch, be reminded of the strengths of journalism — but how even the most meticulously detailed conclusions can lead ultimately to exasperation, not satisfaction, and precious little attention.

Morning Babel and Roy Moore

The Alabama election dominated the early going this morning, with "Trump & Friends" quickly spinning to Trump's weekend bashing of the press (a "stain on America," he declared), which included a Washington Post reporter apologizing for a photo he unfairly tweeted of an empty arena in Florida prior to Trump's speech,  and its own finger pointing at the press for "still pushing" a Trump campaign link to Russia.

CNN's "New Day" went big on Alabama Sen. Richard Shelby deriding his own party's candidate, namely Moore, and argued that the Democrats win even if they lose with a Moore victory. The network is already promoting "Tomorrow Night On CNN: Election Night in Alabama 5 PM ET," so rearrange those school pick-ups, soccer practices and choir rehearsals. Oh, Birmingham talk radio hosts Andrea Lindenberg and Matt Murphy say the state is leaning Moore, in part due to many voters just not buying allegations against him and being long in sync with his many controversial views. 

"Morning Joe" on MSNBC painted the specter of a Moore victory and how it would somehow contradict everything co-host Joe Scarborough has been "telling myself the past 54 years about a new South that has moved forward, that has moved on, may not be the case." He called himself a middle-class kid who hung with working class kids and in 54 years "never heard my friends make racist comments, or racially insensitive  comments … I don't understand how people vote for this man." 

Is he naive, he asked Eddie Glaude Jr., a professor at Princeton University and an African-American who grew up in the South. "To a certain extent, yes," came the response. "One of the beautiful things, and one of the beautifully tragic things about the country is there there is a kind of innocence and willful ignorance that happens on one side of the tracks about why there are tracks in the first place. When you're on the white side of town everything is normalized, everything is normal, it's like oxygen. And the reality of the black side of town is just, 'That's over there.'" He recalled playing with a Tonka truck as a youngster and hearing a voice, "Stop playing with that (n-word)."

The baseball writers' shame

The Baseball Writers' Association of America will soon reveal its annual vote for the Hall of Fame. Sunday the Hall's Modern Era Committee disclosed its annual vote in a separate election that can include players who were passed over by the writers during the ex-players' formal period of eligibility. This time, former Detroit Tigers Jack Morris and Alan Trammell were elected. 

But, once again, as has been true for decades, Marvin Miller, the man who revolutionized the sport as head of the players union, came up short.

Baseball savant Keith Olbermann tells me, "It's revenge. Every committee that's ever voted on Marvin has always had just enough former owners and executives to veto any support he would get from ex-players and writers and historians. This one had 16 members, had an election threshold of 12, and had two active or retired franchise chairmen, two presidents, and two general managers on it. It took the Vatican 350 years to say Galileo was right, that the earth does revolve around the sun. Marvin is baseball's Galileo: the game does revolve around the players. It may take the owners another 350 years to admit it."

Dan McGrath, former sports editor of the Chicago Tribune, says, "An absolute travesty that he’s not in. Thought as the 'veterans  committees' became younger and less hidebound he’d have a better chance, but this result is really discouraging. Some of these voters are contemporaries of mine."

Miller led the players' union from 1966 to 1982. That was the seventh time he's been on the ballot and spurned. Before he died, he told the writers group he didn't want to be considered anymore. The absurdity remains. Most every well-compensated professional athlete owes him some debt, where it comes to their wages, benefits or legal rights. If only more journalists realized that reality. 

CNN's screw-up

CNN did blow it with a bad mistake, suggesting troubling coziness between WikiLeaks and Donald Trump Jr. It heralded its supposed exclusive Friday and it was picked up for many hours (as noted by Glenn Greenwald's Interecept) before both the network conceded a fundamental mistake and the tale was reportedly correctly by other mainstream outlets, which got it right, such as The Washington Post.

But the damage was done, and predictably the story was a cause celebre on the right (I was part of a Fox News segment that evening that was driven by it), with Trump exploiting it during his Friday night speech in Pensacola, Florida.

Axios' Mike Allen on the totality of a bad week:

"Three media screw-ups in eight days on one investigation," says Allen. "The bad week for big news has President Trump feeling that he has moved the 'fake news' argument from the fringe to the conservative mainstream, according to close Trump associates."

"Why it matters: The mistakes — ABC's Brian Ross on Michael Flynn's plea, financial outlets on a Mueller subpoena of bank records, and CNN on an email about WikiLeaks — give Trump fodder for one of his favorite, and most damaging, tropes."

"His argument isn't broadly true: Most reporters work hard to be fair and accurate. And national outlets have risen to this historic era with unprecedented resources and consequential journalism. But, but, but: The foil helps Trump keep his rock-solid base, despite his broad unpopularity. Based on past performance, look for POTUS to amp up his mocking."

"A source close to the White House told me: 'He just hammers something into submission, whatever it may be. … With the media, he just wears it down, wears it down, then somebody slips and makes a mistake.'"

ProPublica branches out and has a good one on in Illinois

The new ProPublica Illinois led the way in co-publishing with the Chicago Tribune a terrific expose of the politically driven mess that is at the heart of assessing commercial and industrial real estate in the Chicago area. It's a very important story but inherently complicated tale and exactly what local media should be doing nationwide, even if not superficially sexy. In this instance, a bottom line is how many property owners can be hurt, while a cottage industry of lawyers, including several well-known local politicians, get rich off the appeals process.

How is it that the valuations of thousands of commercial and industrial properties can remain unchanged over multiple reassessments? This lays it out. It's the latest damning look at a Democratic political hack named Joseph Berrios, who is Cook County assessor and has given lot of jobs to chums and family. It's already been shown that his office screws residential homeowners in poorer neighborhoods. 

But will this impair his political fortunes? This will be an interesting case study in whether strong journalism can impact local politics. The assessment system is beyond corrupt in Chicago. If you want evidence of why, say, the Fox News caricature of Chicago skullduggery is indeed true (even if the right does go too far at times), just look at this one area. Billions of dollars are at stake. Billions. Will anything ever change?

An unavoidable Times look at Trump

By far the weekend's most provocative Trump-related opus came from The New York Times, and it might be grist for immediate discussion in journalism classes: "INSIDE TRUMP’S HOUR-BY-HOUR BATTLE FOR SELF-PRESERVATION: With Twitter as his Excalibur, the president takes on his doubters, powered by long spells of cable news and a dozen Diet Cokes. But if Mr. Trump has yet to bend the presidency to his will, he is at least wrestling it to a draw."

"Wrestling it to a draw?" The piece was receiving ample praise on social media but a qualm or two might be memorialized since it constitutes both a great job of insider reporting (mostly on his idiosyncratic and self-obsessed modus operandi) and a debatable set of de facto implications. Unintentionally, it could be seen as a window onto normalizing bad behavior and giving him the benefit of the doubt in evaluating how he's faring in accomplishing dubious goals.

There's this hint of a journalism trap well known to communications and politics strategists, namely setting rules of a game and getting everybody to buy into them regardless of whether they make sense. So a tax plan that could be ruinous for the nation is about to be seen as a "victory" for him. It's somehow a win for him and his disenfranchised acolytes even if it might disenfranchise them further as it props up the very elites they so hate.

A "draw?" Might one argue, instead, that he's annihilating the office, and that rational and international norms are clearly losing? Stacking the courts, going after environmental regulations, creating international instability, etc., etc. One could read the piece and infer sympathetically that at least Trump is making sacrifices by not continually acting like an untethered middle schooler, instead exhibiting a modicum of decorum sought by the likes of Chief of Staff John Kelly. Such a behavioral push and pull is documented here.

And an unusual, candid footnote

At the end of The Times Trump opus: "Glenn Thrush contributed to this article before he was suspended pending the result of an investigation into allegations of inappropriate behavior."

'Lost opportunity of historic proportions'

We're talking baseball, not the Middle East, as ESPN baseball analyst Keith Law, a numbers cruncher par excellence, assesses the surprise, blockbuster trade in which the Yankees get super slugger Giancarlo Stanton from the Marines — and pick up $260 million of his girnormous long-term contract.

"This is a lost opportunity of historic proportions for the Marlins," he writes, contending that they received way too little in return.

Oh, and about Fox's Jeanine Pirro and Trump

From the Times' long Trump piece:

"Jeanine Pirro, whose Fox News show is a presidential favorite, recently asked to meet about a deal approved while Mrs. Clinton was secretary of state that gave Russia control over some American uranium, which lately has become a favorite focus of conservatives."

"Mr. Trump, Mr. Kelly and Donald F. McGahn II, the White House counsel, met for more than an hour on Nov. 1 as Ms. Pirro whipped up the president against Mr. Mueller and accused James B. Comey, the former FBI director, of employing tactics typically reserved for Mafia cases, according to a person briefed on the meeting."

"The president became visibly agitated as she spoke. 'Roy Cohn was my lawyer!' he exclaimed, referring to the legendary McCarthy-era fixer who mentored Mr. Trump in the 1980s, suggesting that was the type of defender he needed now."

"At another point, Mr. Kelly interrupted. She was not 'helping things,' he said, according to the person briefed. Even Mr. Trump eventually tired of Ms. Pirro’s screed and walked out of the room, according to the person."

"Mr. Trump is an avid newspaper reader who still marks up a half-dozen papers with comments in black Sharpie pen, but Mr. Bannon has told allies that Mr. Trump only 'reads to reinforce.'"

The weekend's best read

You know of the Boston Globe "Spotlight" team from the Oscar-winning movie of the same name. Well, it still exists and did a superior job on "Boston. Racism. Image. Reality."

It's a very complicated matter but if there's a line that struck me, it comes from James Jennings, professor emeritus of race, politics and urban policy at Tufts University.

“A lot of times when Boston engages in looking at itself around race, it focuses on attitudes and prejudices. With that, Boston certainly has made a lot of progress, but Boston needs to start looking at structural quality — racial hierarchy, poverty, academic achievement — to move the needle forward.”

Bob Mueller's many investigative ways

Writes Axios, "Bob Mueller used the 'Track Changes' function in Microsoft Word for Mac to make new accusations against Paul Manafort in a court filing — a new sign of the special counsel's creative, unsparing approach." The Associated Press had the background on Mueller's dissection of an op-ed crafted in Word. Mueller contends that, while under house arrest, Manafort was very much involved in a piece defending his involvement in Ukrainian politics.

'How to Be a Journalist'

The Washington Post unveiled the first episode in a video series on "How to be a Journalist," hosted by reporter Libby Casey. It features reporters Beth Reinhard and Stephanie McCrummen telling how they went about breaking stories on the women who made allegations against Alabama Senate candidate Roy Moore. It was McCrummen who did the related story that was based on her interviewing a woman trying to pull off an undercover right-wing sting against the paper by peddling a BS story on Moore.

A Post story by Casey notes how the series touches upon the very same issues regarding public trust of the press underscored in a recent Poynter survey (though the series genesis and planning preceded the poll's unveiling). 

Golfing unrest in Oshkosh

There are about 2,500 municipal golf courses and increasing debate on their future and potentially smarter use of the land. A Golf magazine podcast delves into an interesting debate nationwide as if focuses on Lakeshore golf course in Oshkosh, Wisconsin, "that has become the focus of a fierce local debate: should the city preserve one of the Midwest’s oldest public courses, or sell the course to a local corporation as the site of their new headquarters?"

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New York City native, graduate of Collegiate School, Amherst College and Roosevelt University. Married to Cornelia Grumman, dad of Blair and Eliot. National columnist, U.S.…
James Warren

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