Legally Conned

Legally conned: Canadian courts wrongly insist there’s a difference between lies and ‘concocted lies’

The Dennis Oland murder verdict was thrown out thanks to an illogical legal theory that’s been sowing confusion in Canada’s courts and undermining jury decisions for decades

It was a murder case that had Maritimers fixated. Dennis Oland, whose wealthy family founded Moosehead brewing, was accused of bludgeoning his father Richard to death in 2011. The trial, which took place in the fall of 2015, was one of New Brunswick’s longest and most expensive. Over the course of three months, 47 witnesses testified, including Oland himself, and 236 exhibits were entered into evidence. The jury deliberated for four days before finding the accused guilty of second degree murder.

Dennis Oland blood stained Jacket
This blood stained brown Hugo Boss jacket was at the centre of the controversy

“Oh no, oh no,” Dennis Oland wept aloud after he heard the verdict. “Oh God! Oh my God!”

Two months later, he was sentenced to life in prison with no chance of parole for 10 years. He served 10 months before the New Brunswick Court of Appeal overturned the jury’s verdict, ordered a new trial and released Oland on bail in October 2016. For many, the appeals court decision was vindication of what they had argued all along, that Dennis Oland was not guilty, but, for others, it simply confirmed their belief that the wealthy can get away with almost anything including murder. (If you’d like a quick backgrounder on this case, check out the Fifth Estate documentary, Murder in the Family.)

Despite the notoriety of the Oland murder, there’s been next to no public discussion about the legal issue that caused the verdict to be overturned, and which New Brunswick prosecutors have described as a “narrow and contentious point of law.” What’s more, this same issue has been causing problems across the country for decades. Oland was far from the first murder conviction to be quashed for reasons that are not just hard to understand but fundamentally make no sense.

Oland told police he wore a blue blazer

In the case of R. v. Dennis Oland, the supposedly controversial evidence involves the jacket Oland wore on July 6, 2011, the day his father was murdered at his office in Saint John. Oland told police he was wearing a navy blazer, but video from security cameras showed him dressed in a brown Hugo Boss sports jacket, and a witness also testified that he had worn a brown jacket when he visited his father on the day of the murder. Despite the fact that the jacket had already been dry cleaned when it was seized by police, it still had four small bloodstains on it, all of which were eventually tested and found to contain DNA matching Dennis’s father’s profile.

In his instructions to the jury, the trial judge, Jack Walsh, said it was up to the jurors to decide whether Oland’s testimony, in which he explained that he had forgotten what he was wearing the day before, “was an honest mistake or an ‘intentional lie’ that was related to the commission of the offence charged.”

So far, so good. That is the jury’s job. They are supposed to deal with questions of fact like whether or not witnesses are lying, while it is up to the judge to handle questions of law like what evidence to admit or exclude.

What bothered the appeals court judges was what Walsh said next, which is quoted here with the original edits of Chief Justice Ernest Drapeau, who wrote the decision. Walsh told the jury that an “intentionally false statement […] will, in some circumstances, be evidence from which it can be inferred that the [author] is attempting to mislead the police and deflect suspicion away […] because [he or she] actually committed the offence.”

Lies vs. concocted lies: is there a difference?

In non-lawyer speak, that means if the jury thinks Oland lied about which jacket he wore, they can consider his falsehood as part of the evidence of his guilt. Now, although this might seem completely non-controversial and commonsensical to non-lawyers, it provoked the appeal judges to declare a mistrial because Walsh “did not explain to the jurors that, even if they found [Oland’s] erroneous statement was a lie, it had no probative value unless they concluded, on the basis of other evidence independent of that finding, that the lie was fabricated or concocted to conceal his involvement in the murder of his father.”

At this point you’re probably going to have to stop and reread and then reread another time. After that, if you’re anything like me, you’ll have a reaction that is something along the lines of “WTF!? All lies are, by their very nature, concocted.” You will then wonder in astonishment whether this can really be the “serious error of law” over which three high court judges threw out a jury verdict from a three-month long jury trial.

Let’s deal with the latter question first. Since the seventies, courts in Canada have decided that certain types of behaviour, now labelled as “post-offence conduct,” can be, as Justice Drapeau puts it, “easily exaggerated and their occurrence misapplied, particularly by non-jurists.” Translated into regular English this means that, according to this country’s finest legal minds, regular people like the members of the jury, are gravely in danger of jumping to the conclusion that because Dennis Oland lied about his jacket, he must have killed his father. For some unspecified reason, they will likely forget all the other evidence they heard over the three months of trial and pay next to no attention to the judge’s instructions.

To remedy this hypothetically precarious state of affairs and prevent non-jurists from automatically leaping to guilty verdicts in the face of post-offence conduct evidence, Justice Drapeau noted that  “the law has developed rules that seek to safeguard against the risk of any prejudicial impact on trial fairness.” Unfortunately for Justice Walsh, he neglected to inform the Oland jury of these convoluted rules. As a result, wrote Drapeau, “his instructions on a key piece of the evidential puzzle are fundamentally flawed” to the point that the verdict must be thrown out and a new trial held.

What follows is the framework Drapeau and his colleagues, Kathleen Quigg and Margaret Larlee, maintain Walsh should have have set out for the jury. Please be warned you will likely need to read it several times:

(1) a false alibi or a lie, without more, is not evidence that can assist the prosecution in establishing guilt;

(2) a false alibi or a lie may constitute incriminating evidence if and only if, in addition to being an intentional falsehood, it was fabricated or concocted by the accused for the purpose of concealing his or her involvement or participation in the offence charged. A fabricated or concocted lie is one that is made up after giving it some thought; as such, it is distinguishable from a spontaneous unreflected or unconsidered lie;

(3) in this context, a finding of fabrication or concoction cannot be made simply because the accused lied; there must be other evidence, independent of that finding upon which the trier of fact can find fabrication or concoction; and

(4) instructions reflecting the foregoing are essential and they must be accompanied by a reference to the independent evidence from which the jury might reasonably infer fabrication or concoction.

A body of law built on a false distinction

This framework was not invented by the three judges of the New Brunswick appeal court but rather has been cobbled together by a whole bunch of judges across the country in over four decades worth of rulings that will make your head spin. Not only have  appeals court judges created a classic distinction-without-a-difference legal theory—lies versus concocted lies— they’ve also come up with guidelines for the jury on how to spot this fake distinction, and formulated exactly what type of evidence the jury can use to decide that a lie is concocted as opposed to just a regular, ostensibly non-concocted lie.

In fairness to the courts, it did not go completely unnoticed that this line of thinking had some fundamental problems. In R. v. Coutts a 1998 decision of the Ontario Court of Appeals, which Drapeau called “one of the leading cases on this subject” Justice David Doherty addressed the issue. “This distinction between statements which are disbelieved and, therefore, rejected and those which can be found to be concocted and capable of providing circumstantial evidence of guilt cannot be justified as a pure matter of logic,” he wrote. “In many, if not most cases, the inference of concoction flows logically from the disbelief of an accused’s statements or testimony.”

Yet despite acknowledging that there is logically no distinction between these two categories, in his very next sentence, Doherty, who is often described as one of the country’s top jurists, states that this non-existent distinction somehow managed to be “fully justified and, indeed, essential” as laid out in R. v. Mahoney.

In reality, Mahoney’s author, Justice John Brooke, did not provide any enlightenment on how to make this “fully justified” distinction. Rather, he quotedout of context, I would arguefrom R. v. Davison, DeRosie and MacArthur, a  passage that he believed stated this distinction exists. Then Brooke built on this to propose a brand new legal test that must be followed as a result.

This “principle,” as Doherty called it, states that before a judge can instruct a jury that a lie can be seen as evidence of possible guilt there must be “extrinsic evidence of fabrication.”

Again, if you are like me, you will ask yourself what exactly this “extrinsic evidence” (also referred to as “independent evidence” in some decisions) might comprise, given that, as Doherty has noted, “the inference of concoction flows logically from the disbelief of an accused’s statements or testimony.” Short of a confession, what is this type of evidence supposed to look like?

This issue also stumped Chief Justice Allan McEachern of the British Columbia Court of Appeal. In R. v. Tessier, a case from 1997, he was one of five judges who  tried to clear up some of the convoluted rules being suggested. “I find it exceedingly difficult to understand how it may logically be correct that fabrication can only be proven by direct evidence, and not by inference from believed, independent evidence, yet that is what the cases seem to suggest,” McEachern wrote in his dissenting opinion in Tessier. As for the jury instructions that Brooke had objected to in R. v. Mahoney and which prompted him to come up with the extrinsic evidence requirement, McEachern wrote that the instructions had made “perfect good sense to me, and I suspect, to most jurors.”

Unfortunately good sense was missing in action as appeals court  judges kept coming up with more and more complex and confusing rules on how the jury must be instructed. Meanwhile defence lawyers were making hay with the fancy new post-offence conduct law as they enthusiastically appealed dozens of cases based on supposedly faulty jury instructions. In Tessier, like Oland, a conviction for murder was thrown out and a new trial ordered. And there were many more examples across the country.

The Supreme Court weighs in, things get worse

Unsurprisingly, in 2002, the whole boiling hot mess landed in the lap of the Supreme Court in R. v. Hibbert, a case where a real estate agent was a victim of a brutal seemingly random attack at an open house held in 1993.  While touring the garage with a male visitor, the woman was struck from behind, beaten, and strangled until she was unconscious. The jury found Hibbert guilty of attempted murder, but the B.C. appeals court quashed the conviction and ordered a new trial saying that the jury had not been properly instructed in the eyewitness identification issues that were crucial to the case. At the second trial, Hibbert was again found guilty and again appealed. His grounds were once again that the judge’s instructions on identification were improper and also the falsehood and fabrication issue that would eventually be raised in Oland.

The B.C. courts dismissed this second appeal, but it was then successfully appealed to the Supreme Court, which threw out Hibbert’s second conviction not on the identification issue but because “the trial judge’s erroneous instructions implied that the jury could find evidence of concoction allowing them to infer that the accused was guilty. This is a serious error that provided the jury with a direct route to guilt,” wrote Justice Louise Arbour. “Despite the circumstantial evidence that points to the accused, it cannot be confidently said that a conviction is a foregone conclusion in the sense that any other reasonable jury would inevitably convict.”

A third trial was ordered.

According to Arbour, the Hibbert judgment was based on “the well‑established position expressed and followed by the courts of appeal …Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false.” She noted that that “the only doubt cast on [this position’s] correctness comes from a short sentence in the oral judgment of this Court in R. v. Michaud.”

Arbour, however, declined to specify what form the extrinsic/independent evidence would need to take to allow a jury to accept a false alibi as part of the evidence of guilt. She wrote, “It is unnecessary in this case to determine the nature and scope of evidence necessary to show concoction so as to permit the instructions inviting the inference of consciousness of guilt. Suffice it to say that the cases have consistently pointed out that there must be evidence linking the accused to fabrication and that such evidence cannot emerge from a mere rejection of the alibi tendered. Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false.”

Fifteen years later, this lack of direction continues to plague the country’s courts. When the issue came up yet again earlier this year in R. v. Clifford, several intervenors took the chance to ask the supreme court to clarify. They included Canada’s Director of Public Prosecutions (DPP) and the Criminal Lawyers Association (CLA) of Ontario .

In its factum the, the DPP recalled that “the policy that animates the distinction between a disbelieved and a fabricated alibi is the concern that triers of fact will equate disbelief of an accused’s version with guilt and jump automatically from disbelief to guilt.” It did not, however, take any issue with this theory, which has over the years evolved into an article of faith. Nor did the DPP push back even a little bit against the lies and concocted lies distinction without a difference.

Its chief concerns were the lack of clarity as to what evidence is required to show concoction and the dangers of artificially categorizing evidence as to whether it shows disbelief or fabrication. “This is an exercise fraught with difficulties that hardly advances the ultimate goal it is intended to achieve: ensuring that a trier of fact has all probative inculpatory evidence without improperly inferring guilt from disbelief,” the DPP factum stated.

Only in Canada, you say?

It also noted that there is no similar approach taken in either the UK or Australia, and provided a citation from the UK Court of Appeal stating, “It accords with good sense that a lie told by a defendant about a material issue may show that the liar knew that if he told the truth he would be sealing his fate.”

As a solution to the problem Canadian courts have created for themselves, the DPP suggested that “instead of looking for evidence independent from the evidence that discredits the alibi, the focus should be on whether there is evidence of fabrication in addition to that discrediting the alibi. This is a distinction with a difference. (Italics in original)”

Not surprisingly the CLA was of a different mind. While acknowledging that “the essential distinction [between lies and fabricated lies] cannot be explained to jurors in a comprehensible manner,” it was more concerned about the effects of the 2002 case, R. v. O’Connor

In a half-hearted attempt to come to terms with the illogic and confusion that had arisen since R. v. Mahoney, O’Connor proposed, among other things, that juries could “consider evidence of the circumstances in which an accused made an out-of-court statement which is disbelieved as independent evidence to show that the accused fabricated the statement.(Italics mine)”

Muted and limited as this was, it was still an anathema to the CLA, which called O’Connor “a legal innovation, unsupported by any prior authority” while failing to mention that the same criticism could be made of Mahoney, Coutts, Hibbert, etc.

Alas for both the criminal lawyers and the prosecutors, the supreme court dismissed the Clifford appeal in February of this year. “While we appreciate the suggestions of the Intervenors that the law be re-examined, we are not satisfied that such re-examination is warranted in this case, particularly where neither party has asked us to depart from the jurisprudence of this Court,” its judgment said.

As for the Oland case, in July, the supreme court dismissed requests by both the New Brunswick Attorney General and the defence to review the overturning of Oland’s conviction. It did not agree to hear why it should grant the outright acquittal Oland wanted nor was it swayed by prosecutors’ claim that this case was an important example of how, across Canada, the job of the jury is being “usurped” by appellate courts confused about how to deal with false statements and the issue of fabrication.

In their application, New Brunswick prosecutors pointed to R. v. Corbett, a 1988 supreme court decision which stated that “the very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense.”

Dennis Oland’s new trial will likely take place in 2018.

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Why I believe Julie Payette assaulted her ex-husband, Billie Flynn

Julie Payette’s ex, Billie Flynn. When a guy looks like Mr. Top Gun, the cops are going to want to see some evidence of assault before laying charges

I believe Julie Payette assaulted her ex-husband. And I believe there was physical evidence, which is why the charges were laid. It’s hard to come up with any other scenario to explain why the police would lay charges against an astronaut. Unless they were undercover men’s rights activists, the cops aren’t just going to take the word of a fighter pilot, who looks like he could play himself in a movie, that his wife is slapping him around.

After that, what a mess. Payette probably regretted what happened almost instantaneously and her ex-husband Billie Flynn likely regretted reporting it. But once the wheels of justice start to turn it’s hard to stop them. There’s bound to be way more regret to come.

When Julie Payette says the now-expunged charges against her were “unfounded” that’s almost certainly true but it’s also contrary to what most of us understand “unfounded” to mean. The police use unfounded in a bizarre way that strips the word of its common meaning. Statistics Canada stopped using the term years ago because it means anything and everything. And the definition of “unfounded” is just as confused in the U.S. where the assault was alleged to have taken place.

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Andrew Potter’s Quebec bashing meant he had to go as head of Canada institute

Andrew Potter’s article was not criticism but a malevolent full frontal attack

There are some mistakes that are resignation worthy. And Andrew Potter’s malevolent and unfounded essay about Quebec, published earlier this week in Maclean’s, is one of them. The director of the McGill Institute for the Study of Canada simply can’t write a hit piece like that and go on to do his job effectively. His credibility was shot. He had to go.

Yet because his target was Quebec, in the rest of Canada, opinion is almost unanimous that Potter, who remains on the faculty at McGill as an associate professor, is the one who has been wronged and that Quebecers are just a bunch on thin-skinned crybabies. McGill is being called cowardly and craven, first, for issuing first a statement saying that Potter’s opinion was not shared by the university, and, then, for accepting Potter’s resignation as institute director.

In the space of a day, the Twitter critics went from criticizing the university for dissociating itself from Potter’s article instead of remaining silent to demanding McGill actively defend Potter’s academic freedom and right to remain the head of the Canada Institute. Rumours were floated that powerful politicians had demanded Potter’s head although they were as unsubstantiated as much of Potter’s article.

To Potter’s credit, he owned up to his article’s mistakes although what prompted the diatribe remains a mystery. For many in the chattering classes, his apology was enough and it was time to move on with Potter keeping his job. But this idea is untenable.

Potter’s article portrayed Quebecers as friendless, ungenerous, duplicitous. It went well beyond criticism deep into attack territory. The reaction it provoked is not about an inability to accept criticism but rather shock at the bigotry being directed at Quebec. And this bigotry was not coming from just anybody, but from the director of the McGill Institute for the Study of Canada.

Imagine if the director of a North America think tank denounced Canadians as a bunch of whiney, boring losers. Would we all rally round to demand that director keep their job? Or would we say WTF, time to find a new director, that kind of behaviour is not acceptable for someone in that position. 

The fact that so many of Potter’s defenders see no problem with Potter’s portrayal of Quebec is astonishing as is their ability to ignore the almost unanimous chorus of Quebecers saying they didn’t recognize the place Potter described, that he must be living in a parallel universe.

For an academic and journalist, Potter is surprisingly unskeptical when he quotes a Statistics Canada report showing “the proportion of people who report having zero close friends is highest in Quebec … And (that) while 28 per cent of Quebecers over the age of 75 report having no close friends, the average for the rest of the country is a mere 11 per cent.”

An anomaly like that shouldn’t make much sense to anyone not predisposed to view Quebec as some sinister backwater. There’s simply no logical reason for Quebecers to have fewer close friends. I suspect what we’re dealing with here are possible translation issues and different cultures’ interpretations of what constitutes a friend, close friend or acquaintance. And please note, I say this as someone who — like Potter — has questioned Quebecers cherished vision of themselves as full of joie de vivre compared to uptight Canadians.

Many Quebecers would also likely agree with several of Potter’s points had they been presented in context. Montreal should have long ago put an end to a never-ending police labour protest, where cops wear colourful camouflage pants instead of their uniform trousers. But how? Like Toronto does? By caving in and giving cops everything they want? Montreal may have police in clown pants but Potter never mentions that Toronto has a force where almost everyone who is not on the Sunshine List of Ontario public service employees, who make more than $100,000, is only a few thousand dollars away. Here in Ontario we’ve used our non-social capital to buy off the police, hardly a superior solution.

Perhaps this is something Potter will ponder as the snow melts and he ventures out to one of those many two-bill restaurant he alone seems to know. He can drown his sorrows about a future that is temporarily a little less bright and a career that is slightly less charmed than it was last week. Actions have consequences, but if Potter is truly as smart and affable, as his backers maintain, he will rise again having learned to be even smarter as a result of his very serious mistake.

Satoshi Nakamoto: Is it ok to hunt for the identity of the Bitcoin inventor?

To search or not to search for the identity of the mysterious founder and inventor of Bitcoin, that is the question. Do we the public have a right to satisfy our curiosity about who the person behind the Satoshi Nakamoto pseudonym is? Or are we ethically obliged to respect his or her privacy?

Two opposing views on the topic come from Adrian Chen, a staff writer at The New Yorker, whose beat is internet technology and culture, and Emin Gün Sirer, Cornell prof and self-described hacker.

Chen’s argument is that “in investigating the background of an inventor, we hope to learn something about innovation that can’t be gleaned from the thing itself.” He says it’s wishful thinking to argue as many Bitcoiners do that Satoshi Nakamoto’s identity is irrelevant. Somewhat unconvincingly, Chen also maintains that the mere fact that Satoshi holds an estimated half a billion dollars worth of Bitcoin legitimizes the curiosity about who he is or isn’t.

At core though, Chen’s argument seems to be about not letting technology control us. “Turning away from the question of Nakamoto’s identity is a way to deny the fact that bitcoin, like all technology, is ultimately, imperfectly, human,” his brief essay concludes. “The world could use this reminder now more than ever.”

In contrast, Sirer says the spectacle of journalists hunting for Satoshi’s identity “serves only a prurient interest.” He argues that we have no right to make “someone who wants to remain a private individual into a public persona,” especially when what’s brought attention to them is an invention that ultimately benefits the public.

In the case of Bitcoin, Sirer says, being outed as Satoshi could also be dangerous and lead to “extortion attempts from the Russian mafia[.] Everyone known to hold substantial bitcoin, and even those who do not, get extorted by shady characters.”

But, somewhat contradictorily, in the same blog post, Sirer says he thinks he might have identified Satoshi, that people’s “thought patterns and idiosyncrasies form a unique signature, the same way code structure forms a unique signature for developers.”

“Having read Satoshi’s writings, I have a very good idea of his unique mental signature,” he writes.

“So, for some time now, every time I converse with someone new, I have been doing a quick comparison to Satoshi…

“Interestingly, I have come across one person who was a perfect fit. That person had the precise same intellectual signature as Satoshi, someone who could have written, word for word, some of Satoshi’s forum posts.”

Now Sirer says a lot of things that make sense to me about Bitcoin. And as a writer and investigator, I know that people definitely have a writerly signature. I frequently discover people’s identities due to their unique turns of phrase. I am inclined to believe that he might very well have insights into who the Bitcoin inventor truly is.

But I don’t agree with Sirer that the Bitcoin inventor would automatically be in danger from the Russian mob. There are lots of rich people in the world, who get along just fine. While being outed might be majorly disruptive for Satoshi, I am far from convinced it would be perilous. Not to mention that Sirer seems perfectly secure telling the world he believes he has identified Satoshi.

I also don’t think it’s fair of Sirer to accuse the media of conducting a “pointless Satoshi manhunt” when he’s been doing the exact same thing. He clearly wants to know who Satoshi is so why can’t the rest of us?

It’s not good enough to say responsible media don’t do this. There may be a good reason not to reveal Satoshi’s identity or there may not be. There may also be compelling grounds to tell the public who Satoshi is. Without knowing his or her specific circumstances, it’s impossible to say.

On the question of privacy, lt’s my experience as a journalist that people who want to be left alone generally do get left alone. In the Satoshi case, there’s little doubt that a public identification would lead to a media conflagration, but after a stint in the world’s headlines, I think it would be pretty easy for Satoshi to get back to leading a normal life.

I am, however, still undecided on the question of whether the public has a right to know the identity of the Bitcoin creator, as Chen seems to suggest it does.

Ultimately, I think that depends on Satoshi’s very individual circumstances as opposed to what responsible media should do or how we need to be reminded about the imperfections of technology.

Adnan Syed and the systemic dismissal of real violence against women

I have written a number of articles about the troubling phenomenon of how Adnan Syed, a guy rightfully convicted of murdering his ex-girlfriend, became a poster child for the wrongfully convicted. I’m especially disquieted by how Syed supporters wave away and dismiss all the warning signs of intimate partner violence.

In light of his upcoming post-conviction relief hearing on February 4 and 5 and the attention being showered on Adnan apologists, I wanted to put the key links in one place:

Adnan Syed I'm going to kill note
Adnan Syed wrote “I’m going to kill” on the back of the note, which his supporters variously dismiss as a “stray thing” and so much teenage drama

1) Serial podcast rehabilitated a schoolgirl’s murderer, so where’s the feminist outrage?

There has not been one serious feminist critique of Serial in the mainstream US media. Yes, a couple of Brit pundits expressed shock, but that was before Christmas (2014) and they were pretty much ignored and then forgotten. Just like race beat out gender two decades ago at the OJ trial, allowing a wife killer to be transformed into a symbol of justice for African Americans, so, today, can Adnan can be hailed as a representative of the wrongfully convicted despite the plentiful evidence against him and the transcripts that show he had a fair trial. Koenig’s “I nurse doubt” cri de coeur is V.2014 of “if the glove don’t fit you must acquit.” Read complete article

2) Adnan advocate-in-chief Rabia Chaudry responds to my feminist critique of Serial, and I respond back to her

Your crowd, Rabia, has shown no qualms about smearing innocent people including, among many others — Stephanie, Don, Don’s mother, Detectives Ritz and MacGillivary, and, most favourite of all, Jay. In short, pretty much anyone who’s not Adnan. Here’s your own brother suggesting, with zero evidence, that Stephanie might have done it:

Rabia's brother Saad suggests in his Reddit AMA that maybe Stephanie killed Hae

Rabia’s brother Saad suggests in his Reddit AMA that maybe Stephanie killed Hae

Accusations of murder are thrown around like they’re nothing, which is pretty ironic given that the goal of all this is to get a guy out of jail who’s ostensibly been wrongly convicted of murder. Read complete article

3) ‘Injustice porn’ like Making a Murder and Serial celebrates men who kill and abuse women

Injustice porn history is repeating itself with Making a Murderer. The directors Laura Ricciardi and Moira Demos leave out key evidence about Avery’s possible guilt and history of violence against women. They also portray Avery’s parents as kindly homespun hillbillies, showing his father tending to his garden and his mother spending years fighting to get her son out of jail. They skip over the fact that Avery looks like he might have fetal alcohol syndrome and don’t bother to mention that all three of Avery brothers have criminal records including multiple charges for assaulting women.

As a result of these omissions — apparently no big deal in injustice porn land — the abusive and dysfunctional Avery family has developed quite the internet fan following. In contrast, family and friends of the victim have been subject to internet abuse based on their treatment in Making a Murderer. “Mike Halbach seems awfully creepy,” tweets Kinsey Schofield, a tv personality and journalist  to her 286,000 Twitter followers. Read complete article

‘Injustice porn’ like Making a Murder and Serial celebrates men who kill and abuse women

Yet feminist critics of this new entertainment genre are missing in action

We are in the middle of what, for lack of a better description, I will call a radical feminist moment. Not a day goes by without some poor soul being shamed on the internet for a multitude of sins ranging from mansplaining and manspreading to not fully supporting affirmative consent policies or depriving women of jobs in the gaming industry.

Yet right in the middle of this media-fuelled, girl-power moment, something inexplicable has happened. A new favourite entertainment genre — let’s call it “injustice porn” — has emerged that celebrates the men who kill and abuse women.

Funnily enough, the usual feminist suspects have next to nothing to say about injustice porn’s woman problem. And even weirder, the genre’s most recent hits — the 2014 podcast Serial and the 2015 Netflix documentary series, Making a Murderer — are produced and directed by women who systematically minimize, dismiss and ignore crimes against women.

The result of our current over-fixation on things like everyday sexism and microaggressions has been not just to turn the trivial into the supposedly important but the inverse as well — it’s made the important trivial.

Thus when Steven Avery douses a cat and gasoline and throws it on a fire to watch it suffer, the directors of Making a Murderer suggest their protagonist was just goofing around and the cat mistakenly fell in the fire. Adding insult to injury, online apologists explain that this is how rural folk treat animals.

10 Questions about Making a Murderer
Dr. Drew Pinsky, an addiction medicine specialist, pointed out on the Reasonable Doubt podcast that Steven Avery looks like he suffers from fetal alcohol syndrome, but that doesn’t fit the lovable-Avery-clan narrative (Photo: courtesy of Netflix)

Likewise, when Adnan Syed, the hero of Serial, writes “I’m going to kill” on a break-up note written to him by his ex-girlfriend Hae Min Lee, journalist Sarah Koenig dismisses it as a “a detail you’d find in a cheesy detective novel” and a “stray thing” that could be meaningless. Never mind that 18-year-old Lee actually ended up murdered, her body dumped and half buried in a Baltimore park. Koenig can’t even be bothered to ask Syed about the note.

The Serial journalist also managed to overlook the fact that Hae asked a teacher to help her hide from Adnan and that, in her diary, she described her ex-boyfriend’s possessiveness as a problem, a direct contradiction of what was said on the podcast.  Yet despite Koenig’s consistent minimization of incidents that are classic warning signs of intimate partner violence, there has, in almost a year and a half, not been one serious feminist critique of in the mainstream US media. (Yes, early on a couple of Brits expressed shock, but they were pretty much ignored and then forgotten.) Instead, Serial won the prized Peabody Award for excellence in broadcast journalism.

Screenshot 2016-01-10 at 1.31.35 PM
Hae Min Lee wrote a break-up note to Adnan Syed telling him to move on, accept her decision to end their relationship, and “hate me if you will”


Adnan Syed I'm going to kill note
Adnan Syed wrote “I’m going to kill” on the back of the note, which his supporters variously dismiss as a “stray thing” and so much teenage drama

Now, injustice porn history is repeating itself with Making a Murderer. The directors Laura Ricciardi and Moira Demos leave out key evidence about Avery’s possible guilt and history of violence against women. They never explain why he asked specifically for Teresa Halbach, the 25 year old woman he was convicted of murdering, to come to the Avery salvage yard and photograph his sister’s car. They fail to mention how he had answered the door in a towel on one of her previous work visits. Nor do they acknowledge that Avery used *67, which blocks the callers’ name, to phone her twice on the day she disappeared.

The filmmakers also portray Avery’s parents as kindly homespun hillbillies, showing his father tending to his garden and his mother spending years fighting to get her son out of jail. They skip over the fact that Avery looks like he might have fetal alcohol syndrome and don’t bother to mention that all three of Avery brothers have criminal records including multiple charges for assaulting women.

Older brother Charles was charged and acquitted of sexual assault in 1988. And then in 1999, his ex-wife accused him of sexual assault and wrapping a phone cord around her neck. Along the way, he pled guilty to disorderly conduct. Younger brother Earl pleaded no contest to sexual assault and two different sets of battery charges. He was also charged with sexually assaulting his two daughters.

As a result of these omissions — apparently no big deal in injustice porn land — the abusive and dysfunctional Avery family has developed quite the internet fan following. Stop by Reddit’s Making a Murderer forum and you can participate in threads entitled: Anyone else wanna give Steve Avery’s mom a big hug?, “I know you like lettuce.” – The incredibly endearing Allan Avery” and What can we do to help the Avery family?

In contrast, family and friends of the victim have been subject to internet abuse based on their treatment in Making a Murderer. “Mike Halbach seems awfully creepy,” tweets Kinsey Schofielda tv personality and journalist  to her 286,000 Twitter followers.

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“My “#MikeHalbach is the worst” tweet is still getting likes. I’m so happy people agree. Mike…you are the worst. #MakingAMurderer,” boasts Seth Lieber, who describes himself as an Actors’ Equity member.

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Empathy is not a requirement for injustice porn fans

While the filmmakers aren’t responsible for every idiot on the internet, this reaction was completely predictable. Ricciardi and Demos treated Mike Halbach, Teresa’s brother and the family spokesman, unconscionably. Every time he appears, he’s made to say something that’s just been carefully debunked for the audience. From his very first quote, about how the process of grieving his sister might take days (yes, days!), the directors never miss an opportunity to make him look bad. Halbach doesn’t get so much as one sympathetic quote. The only thing the filmmakers don’t do is play spooky music whenever he appears.

Such are the requirements of injustice porn. When the convicted man is your protagonist, the audience requires and will find someone to witch hunt. After Serial ended, Syed’s advocate-in-chief, Rabia Chaudry, joined up with two other lawyers to start the Undisclosed podcast, which, since its inception, has produced one conspiracy theory after another, smearing a long list of people along the way.

Their friend and fellow Serial-obsessed podcaster Bob Ruff devoted show after 2015 show to innuendo and unfounded accusations that Don, the guy Hae dated after she dumped Adnan, was a far more likely killer even though he had something very important that Adnan didn’t — an alibi.

Nor is Injustice porn kind to victims although it often tries to disguise this with hashtags like #JusticeforHae #FreeAdnan, while ignoring the fact that freeing remorseless Adnan would be about the biggest injustice possible for Hae.

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Injustice porn fans turn the female victims into props designed to support the most ludicrous and offensive theories. For the purpose of finding her fantasy, anyone-but-Adnan killer, Rabia Chaudry suggested Hae, who took only the occasional puff of pot, was a weed smoker with a big enough habit that she would be visiting shady drug dealers after school, which was how she got killed. Hashtag victim blaming.

In a related vein, Making a Murderer uses footage of Teresa Halbach, talking about what would happen if she were to die, without putting it in context, namely that it was a university video project. As a result, Teresa’s mental health has been questioned and it’s been suggested she might have killed herself although how that would cause her cremains to end up in the Avery salvage yard is never explained. Hashtag more victim blaming.

Yet another fact that Making a Murderer withholds from its audience is that the people Steven Avery’s lawyers would have thrown under the bus — had the judge allowed the defence to name alternate suspects — were his two brothers, his nephew and brother-in-law. That was an inconvenient truth that didn’t fit the adorable Averys narrative and would have taken some explaining. Why bother when it was so much easier just to make Teresa’s brother and ex-boyfriend look bad and serve them up for the online lynch mob?

Essentially, the only reason the filmmakers were able to so successfully mythologize the Averys is because, in 1985, Steven Avery was wrongfully convicted of rape, a crime for which he was exonerated by DNA testing after spending 18 years in jail. The wrongful conviction was a result of tunnel vision on the part of the police, a mishandled identification process for the accused assailant, and the victim’s compelling yet mistaken testimony that it was Avery who had raped and viciously assaulted her. After he was finally released from jail, Avery sued the county for $36 million, but just as it looked like he was about to receive a fat settlement, he was arrested again for the murder of Teresa Halbach. Like all wrongful convictions, it’s a shocking tale — yet something of a challenge for Third Wave feminists preaching that the victim must always be believed.

None of this is to deny that Ricciardi and Demos make a convincing argument that some of the evidence used against Avery in the murder charge might have been planted. And it’s  also hard to disagree with their conclusion that Avery’s 16-year-old cousin was wrongfully charged and convicted, failed by everyone, including his lawyers, at every step of the way. As for Steven Avery himself, I have no idea whether he did it or not. But like his lawyers, I believe that whoever did kill Teresa Halbach was associated with the salvage yard.

In this respect Making a Murderer is very different from Serial, where there was — as the transcripts for Adnan’s trial and the police files of investigation clearly demonstrate — no miscarriage of justice. The prosecutor Kevin Urick was half right when he described the killing of Hae Min Lee as  “pretty much a run-of-the-mill domestic violence murder.”

Where he was wrong however was in his failure to understand that there is indeed a mystery at the heart of Serial. It’s just that it has nothing to do with Adnan Syed, whose unoriginal motive and story are as old as time. What made Serial a mystery was the presence of Jay, a Shakespearean character, who first goes along with Syed, becoming an accessory after the fact to murder, but later confesses his crime to police. His testimony sends Syed to jail for life plus 30, and left every Serial listener puzzling and arguing over why he did what he did.

The post conviction relief hearing recently granted to Syed and coming up in February is the exploitation of a legal loophole and most likely the result of the publicity the podcast generated. The defence is contending that Syed’s counsel was ineffective because she failed to contact Asia McLain, who was presented in the first episode of Serial, entitled The Alibi, as the witness who could have exonerated Adnan had his lawyer done her job. Never mind that Asia’s a total flake who appears to have her alibi days mixed up, she was part of the false groundwork Sarah Koenig laid to convince the audience that something was not quite right about the Syed case and that if they wanted to find out the truth, they would need to accompany her on her emotionally manipulative podcast journey.

The promise was not kept, however. Koenig copped out and never provided the truth. Her “I nurse doubt” cri de coeur was V.2014 of “if the glove don’t fit you must acquit.” Just like race beat out gender two decades ago at the OJ trial, allowing a wife killer to be transformed into a symbol of justice for African Americans, so, today, can Adnan can be hailed as a representative of the wrongfully convicted and the Averys celebrated as exemplary Americans while the Halbachs are trashed.

This is because, in the end, Injustice porn isn’t about either truth or justice. It’s porn, which means it can only supply a cheap frisson. If it leaves you with an uneasy feeling about the women victims, it’s because it should.

Who killed Teresa Halbach if it wasn’t Steven Avery?

A new opinion piece: ‘Injustice porn’ like Making a Murder and Serial celebrates men who kill and abuse women

If you’ve watched the new Netflix series Making a Murderer, you’re probably left wondering who killed Teresa Halbach and why. The 10-part documentary makes a very convincing case that the local police planted evidence and provides a strong motive for why they might have done such a thing.

The filmmakers don’t, however, try to make the case that the police actually killed Teresa. Instead they do something highly unethical and cast suspicion on her brother, her ex-boyfriend and her roommate.

Almost every time Mike Halbach, the brother of the victim and the family spokesman, comes on the scene, he’s made to say something that’s just been carefully debunked for the audience. The camera stays focused right on Halbach to let it sink in just how wrong he is. From his very first quote, about how the process of grieving his sister might take days (yes, days), the directors Laura Ricciardi and Moira Demos never miss an opportunity to make him look bad. Halbach doesn’t get so much as one sympathetic quote. The only thing the filmmakers don’t do is play spooky music whenever he appears.

They also make Teresa’s ex-boyfriend look terrible on the witness stand, suggesting he hacked into her voicemail for nefarious reasons. Ditto the roommate who helped out the ex-BF.

Mike Halbach
Entirely predictable results of unethical filmmaking: Mike Halbach never was nor never should have been a suspect

Ricciardi and Demos are good at casting doubt  and the well-primed audience got their message loud and clear. The internet is now chockablock with justice warriors demanding Teresa’s brother’s head and spreading rumours about her ex-boyfriend and roommate. But there’s a problem and it’s a big one — in the eight years since Steven Avery’s trial ended, the filmmakers don’t appear to have followed up to see if their suspicions were actually merited. Based on their final product, they either didn’t bother to  look or turned up zero.

In other words, they made Teresa Halbach’s brother, her ex-boyfriend and her roommate look bad without having a single scrap of evidence against them. They appear to have provoked a mob for nothing more than narrative tension, which is especially ironic in a documentary about the dangers of witch hunts.

Alternate suspects to Steven Avery
Here are the people the lawyers wanted to point the finger at: No brother, no ex-BF, no roommate. It’s an Avery-heavy line-up

What’s more, the Making a Murderer team did all this without mentioning that none of these three men were included on any list of alternative suspects. All we hear is that Avery’s original defence team was prevented from discussing other possible suspects in court. The filmmakers don’t tell us that those suspects were all related to the Avery clan and the salvage yard and that they included Steven Avery’s brothers, Earl Avery and Charles Avery, his brother-in law Scott Tadych, his nephew Bobby Dassey and — wait for it — Brendan Dassey.

Yes, you read that correctly. All the while Making a Murderer is building a case that the prosecution of Brendan Dassey as a murderer alongside his uncle is a gross miscarriage of justice, they neglected to acknowledge that taht Avery’s very competent defence team was also prepared to throw Brendan under the bus. Turns out real life is way more complicated than even a 10-hour documentary.

The problem for the filmmakers is the lawyers were probably right. If Steven Avery didn’t kill Teresa Halbach, it was likely one or more of the people on their list. That’s not as good a story as leaving it up in the air and implying the cops or the victim’s brother or her ex-BF and the roommate did it. But if you think about it, it actually makes a lot of sense that the murderer was connected to the Avery clan.

It explains why no one ever saw the victim again after her stop at the salvage yard, why her cremains were found on the property and why there were multiple calls to her cell phone from Steven Avery’s phone, including calls using *67 to block his ID. As the appeal defence lawyers’ documentation shows, the Avery clan had a long history of violence against women. It’s not unthinkable that one of them might have tried to lure and sexually assault an attractive young photographer. And there’s no reason they couldn’t have done this with Steven Avery’s phone.

Imagine this scenario: One or more of the extended family members got rough with Theresa and ended up murdering her. If the cops hadn’t come a calling, they could have used her murder as a way to blackmail Steven Avery out of some of the multi-million dollar settlement he was about to receive for his false rape conviction. If the cops did start poking around, the real murderers could accuse, even frame, Steven.

Needless to say the cops had a much stronger motive to pin the murder on Steven than they did to go after the other Averys. If Steven was the murderer, the county’s settlement payment problems vanished and their reputations were well on the way to repair. If it was just another Avery or Avery in-law, they still had the settlement and reputation problems.

The documentary makes a convincing case the police helped things along by planting evidence, especially the key. As for the car, that could have been the police or the actual murderers. Steven Avery could have been in on it or oblivious.

Either way, however, having an Avery or Avery-in-law as the culprit puts up some narrative obstacles for the filmmakers. Ma and Pa Avery are portrayed lovingly as salt of the earth types. They’re never asked how they managed to raise three sons with such a long and documented history of violence. And the directors gloss right over the well known fact that before his wrongful rape conviction, Steven Avery doused a cat in oil and threw it on a fire.

Such are the demands, however, of creating a wrongfully convicted protagonist the public will flock to support. It’s far more difficult to be sympathetic to Steven and Ma and Pa Avery, if it was their own dysfunctional brood framing up Steven and Brendan alongside the cops. It doesn’t quite reach the required outrage levels if the family did it. Much better to be vague so that the public can go to town on the  police or the victim’s brother or a mysterious German man.

Not to mention that if the filmmakers had decided one of the brothers, nephews or brother-in-law likely did it, Ma and Pa might have pulled right out of the multi-year film project and left the directors empty handed. A Shakespearian or Faulkneresque tale of a dysfunctional and dangerous family is of no use to anyone if you don’t have the legal rights to tell it.

10 questions about Making a Murderer on Netflix

A new opinion piece: ‘Injustice porn’ like Making a Murder and Serial celebrates men who kill and abuse women

10 Questions about Making a Murderer
10 Questions about Making a Murderer (Photo: courtesy of Netflix)

Things I’d like to ask the filmmakers now

So, I just watched the first six and a half episodes of Making a Murderer, couldn’t stand the suspense, skipped to Episode 10 and started googling. All this to say there are still two and a half hours of the new Netflix documentary, which I haven’t yet seen.

The series is about the 2005 murder of Teresa Halbach, who was alleged to have been killed by Steven Avery, a man exonerated by DNA evidence in 2003 after spending 18 years in jail for a wrongful rape conviction. Avery’s nephew Brendan Dassey was also charged with the murder. They were both convicted at separate trials in 20017.

I have to say that I was pretty convinced from the beginning, they didn’t do it, but I certainly have some questions about the filmmakers’ techniques and what they left out. For the record, here they are:

  1. Why did this take until 2015 to be released when the action in the form of the two guilty verdicts came down in 2007? That’s a hell of a long time to wait and I haven’t seen the delay satisfactorily explained.
  2. Why did the filmmakers Laura Ricciardi and Moira Demos, deliberately try to make the victim’s brother look suspicious but never deliver the gods?
  3. Ditto the ex-BF and the roommate. If you’re going to cast suspicion like that, don’t you have a duty to follow up?
  4. Why didn’t the filmmakers find out who the phone calls Teresa was avoiding came from? For that matter, why didn’t they independently pursue any other leads? They pretty much confine themselves to the courtroom in what seems to be an odd decision. Are they worried about what they will find elsewhere?
  5. Why did they let the fact that Steven Avery burned a cat go without further questioning about his childhood and psychology?
  6. What was the story of the harassing letters he is supposed to have sent to his ex-wife?
  7. Why did the Innocence Project run away from this story after the murder charges were laid?
  8. Why is the third remains site only mentioned once?
  9. What’s the deal with the idea there was some kind of jury funny business including possible jury tampering?
  10. Did any of the media who seemed relatively sceptical about the prosecution’s case ever follow up, and if so why not?

Update: Read my latest post, Who killed Teresa Halbach?

Nicole O’Shea: Portrait of a ‘Vigilante’ Mom, Serial Tweeter and Chicken Farmer

Nicole O’shea is a modern Vigilante Mom. When’s she’s not chicken farming, cooking up kickass food or collecting good times, she’s out on the internet, hunting prey under the incongruous Twitter handle @lovemultiplies.

As jarring as this might seem, it’s a relatively common phenomenon. Some of the meanest people on Twitter are the self-proclaimed moms and, more recently, their proud Dad allies.

Nicole’s current project is sleuthing out Don, an innocent man accused of being a suspected murderer, stalking his family’s social media, and talking trash about him with her like-minded mean Mom friends including Rhonda Franklin aka @HapiBnBusiMom.

Needless to say, Nicole’s doing this in the name of a good cause, freeing Adnan Syed, the murderer made famous last year by the hit podcast Serial. I’ve written before about why Syed is clearly guilty of killing Hae Min Lee so I won’t bore you with it again.

This blog post is about something different, the weird phenomenon of airhead Moms defending the guy who murdered a schoolgirl, their bully tactics, and their complete and utter lack of self awareness. Nicole O’Shea and her friends make a perfect case study so let’s watch them in action.

Step 1: Inspired by the Truth and Justice podcast formerly known as Serial Dynasty, Nicole and Rhonda tweet and google away a lazy Sunday afternoon while someone else minds the children and chickens, and collects the good times:

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A clue!!!

Step 2: Finding that Don’s Facebook account is private, Nicole and Rhonda move on to his wife. Nicole posts her photo and Don’s daughter’s photo too.

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Unlike Nicole, I redacted the photo

Step 3: Nicole and Rhonda yuck it up because Don doesn’t look like they expected. Nic Wiseman aka @niwise, who describes himself as “Dad of a girl and husband to a woman (big advocate of their rights),” crashes the Mom party:

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Dad role model?
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Mom role model?

Step 4: Nicole praises Bob Ruff, the fireman and podcaster who’s deluded himself into thinking Don needs to be investigated, and doing it on the internet is the way to go:

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Bob’s just asking questions

Step 5: Nicole takes time out from persecuting an innocent man to think happy thoughts about innocent babies:

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The good mom

Step 6: Fireman Bob airs a new podcast about innocent Don. Vigilante Moms Nicole and Rhonda return to the job:

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What were those police thinking?
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What were those jurors thinking?

Step 7: Fireman Bob devotes still more airtime to his unsubstantiated and discredited theory that Don forged a timecard to give himself an alibi. According to Bob’s nuttery, Don did this with the help of his mom and her partner, who worked for the same company he did. (The part about Don and his family working at the same company is actually true.) Meanwhile, Nicole discovers during a Twitter break that she forgot to mail her letter to that nice murderer, Adnan Syed:

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Sad face emoji compulsory

Step 8: Nicole returns to Twitter where a whole bunch of Moms — including Kaitlin Armerding — are clamouring for pictures of Don.

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Step 9: Nicole obliges and pictures of innocent Don spread. When Don’s father takes to Twitter to try and stop the gawking, Nicole tells him in her passive aggressive Vigilante Mom way: “I don’t envy your position. Also I don’t believe you. This must be hard 4 U to go thru.” An anonymous Twitter user with a better understanding of human decency intervenes.

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Step 10: Not surprisingly, Nicole and Rhonda don’t get it.

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Nice people, really?

Step 11: Inevitably, the foul mouthed mother of all Adnan Syed advocates, Rabia Chaudry, is asked to comment:

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Step 12: Unable to think through a thorny issue, Nicole communes once again with Twitter friends, who betray that this whole Don thing might be more about entertaining their bored mom selves than a fight for truth and justice:

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My mind’s blown too, Nicole, but for completely different reasons.

The End

Postscript: Two things could happen to this blog post. It could go ignored. Or it could cause hell to rain down on me.

In the event of the latter, let me say in advance that I am aware that by writing about Don — and I want to stress that Don is completely innocent and I don’t think Fireman Bob has a shred of proof of any malfeasance at all — people will accuse me of fanning the flames. That’s a valid point of view and why I’ve pretty much steered clear of writing about Don up until now. However, that said, this has been going on for weeks and things have not gotten better. Instead, they’ve gotten worse. So I think it’s time to really talk about why this is wrong, fix it, apologize and move on. Don and his family deserve that.

I’m also prepared that I will be accused of doing unto others what I don’t want them to do unto Don, and I want to point out why this is not the case.

Please understand that I don’t have a problem with people being named and critiqued for things they have actually done. For example, Vigilante Moms deserve to be taken to task for their unthinking and perhaps unintentionally cruel actions. You can also criticize me while you’re at it and if you’re so inclined.

But you can’t attack Don and say he should be a murder suspect, because he has done exactly nothing wrong. He had the tragic misfortune to be dating a young woman who was murdered. He was thoroughly investigated at the time and was found to be innocent. He was a witness for the prosecution at the trial. That’s it, that’s all.

In 16 years, nothing has changed. There is zero proof that anything funky went on with Don and his time cards as Bob Ruff wishfully maintains. And it’s beyond bizarre to see people, who claim to be fighting for the rights of a man they believe to be wrongly accused, celebrate the unconscionable smearing of Don:

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Fighting wrongful convictions Rabia style

Sadly, Chaudry’s tactics and this type of character assassination work. More recently, the smearing has started spreading well beyond the Vigilante Moms, who, like Nicole, need to conjure up villains for their #FreeAdnan world.

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More role modelling

If only Nicole would stop for a moment and spare a thought for Don’s actual mama who, when Don was grown, adopted a child with special needs and cared for him for years, until he was returned to health. Is this really the type of person who would conspire with her son and spouse to concoct an alibi and remain silent while a wrongfully convicted man was sent to prison for life?

Because if you are foolish enough to put your faith in the people who lead the #FreeAdnan movement, that is what you are being asked to believe.

Full Disclosure: I appeared on Fireman Bob’s podcast. It was an amicable enough discussion but a few weeks later, Bob called me disgusting, and some of his supporters falsely accused me of hijacking his old @serialdynasty Twitter handle. This is, after all, a crowd that’s big on false accusations.

I have said that I find it strange and uncaring that neither Don nor Adnan Syed tried to contact Hae Min Lee after she went missing.

Is François Bugingo the biggest fabulist journalist yet?

François  Bugingo in Israel. No, it's not Photoshop, he did actually go there.
François Bugingo in Israel. No, it’s not Photoshop, he did actually go there.

I keep up to date on tales of journalistic make-believe and I’ve got to tell you this
François Bugingo story out of Quebec is the most unbelievable tale of a journalist/fabulist I’ve seen so far. It’s Brian Williams meets Stephen Glass meets Boot of the Beast meets Walter Mitty. Bugingo makes other fabulists look like unadventurous amateurs. The character he portrayed  was a superman among war correspondents — not just reporting from hot spots like Somalia, Sarajevo and Iraq but carrying out a top-secret missions for the European Commission in Egypt, negotiating the release of hostages in Mauritania, and training journalists in the Ivory Coast.

In short, the story of François Bugingo defies belief. It is not something any self-respecting journalist should ever have believed, and yet until Isabelle Hachey exposed his massive fraud in La Presse this weekend, no one seems to have questioned the crazy Bugingo narrative.

I can think of three possible reasons why François  Bugingo survived as long as he did but before I go there, here are some of the many stunning examples Hachey reported:

Bugingo claimed in 2014 that a top Libyan torturer, whose execution he witnessed in Misrata, defecated in his pants before turning to Bugingo and crying: “I hate the bad man the Guide made of me.” Problem: Bugingo was never in Misrata, according to La Presse.

Also last year, Bugingo, now 41, recounted a reporting trip he made to Sarajevo in 1993 when he would have been just a teenager. He told the tale of a sniper who spent the whole day shooting, shooting, shooting. Then, evenings, he transformed into an “exceptional artist” strumming his guitar with a bottle of Slivovitz by his side. Problem: Bugingo was never in Sarajevo at that time, according to those he said he was with.

After Sarajevo, Bugingo claims to have made his way to Rwanda in 1994, but there are no records of him ever having been there nor any archived examples of his reporting.

As the vice-president of Reporters Without Borders, Bugingo said he undertook hostage release negotiations for journalists captured around the world and engaged in other secret missions. Problem: The former secretary general of the organization says none of this ever happened.

I left Quebec in 2008 before Bugingo became famous so I have to cop to never having heard of him until today, but apparently he had developed a huge presence: a daily radio commentary on international affairs, regular spots on the TVA nightly news, a hosting job at TéléQuébec, contract gigs with Radio Canada, a blog and a column at the Journal de Montreal. Prolific doesn’t even begin to describe it. In volume, Bugingo’s journalistic output is almost as hard to fathom as the content.

But by now you get the point. The Bugingo story is unbelievable in every way, which raises the question of how on earth it took so long for someone like Isabelle Hachey to come along and blow it to pieces.

I can see three possible explanations:

  1. He was a super nice guy and/or too well connected so no one wanted to do the dirty work of investigating him. Journalists are major gossips so I find it hard to believe there was not talk about Bugingo’s — cough, cough — exploits. In cases like these, there is almost always muttering about the stories that are too good to be true and the reporters known to play it fast and loose with the facts.
  2. No one actually paid much attention to his work despite his high profile. The web stats at various news organizations provide proof that there are quite a few big name journalists whose articles actually never get read. Maybe Bugingo was one of them.
  3. He was one of very few visible minorities in a prominent role in Quebec journalism so no one wanted to take him on. Yes, I know I’ll likely get hammered for this explanation, but there it is. You’re free to pick either explanation one or two, or provide your own in the comments if you will.

Once again, life proves stranger than fiction. Or life incorporates fiction. Or, well, you get the point.

If you don't know about Boot of the Beast, it's not too late. The funniest ever book about journalism. And it holds up 75 years later.
Talking about fiction, Boot of the Beast stars in the funniest ever book about dodgy journalism — and it holds up 75 years later.