Monday, January 5, 2015

Wainstein's Impressions and Lessons from Serial

"Rather than try to get to the truth, what you're trying to do is build your case and make it the strongest case possible." – Jim Trainum, former homicide detective

Millions of people around the world now believe Adnan Syed was wrongfully convicted of murder in 1999. Last fall, Syed's case captivated listeners and propelled Serial to becoming the most popular podcast in the world. Over the course of 12 episodes, host Sarah Koenig investigated the circumstances of Syed's conviction, the evidence for which seems alarmingly inconclusive. Yet the jury 16 years ago reached their verdict after only two hours of deliberation. Serial's first season is Koenig's attempt to understand how that happened.

In the eighth episode, "The Deal With Jay," Koenig examines the troubling contradictions among statements from the prosecution's key witness, Jay. The contradictions are so troubling she hires Jim Trainum, an expert in criminal investigation procedures, to review the case and evaluate the police's and prosecution's methods. Trainum was a homicide detective in Washington, D.C., who now travels the country advocating for effective interrogation techniques. Although he declares the police's handling of Syed's case "better than average," he identifies one significant misstep during their investigation: they did not record the full interviews they conducted with Jay. According to Trainum, that misstep will "always result in a question as to what the final outcome should have been."

In defense of the police, Trainum explains that standard procedure at the time was to conduct a "pre-interview" in which the police and witness would develop a cohesive statement for the actual, recorded interview. Jay's pre-interview lasted three hours. "The answers we want," Trainum says, "probably live in those unrecorded pre-interview hours, a black hole of crucial information."

Trainum suggests that some of that information could be, for the police, "bad evidence," that is, evidence that contradicts their theory. Koenig is aghast that police would regard any evidence as bad. "You can't pick and choose [facts]," she exclaims. "Trainum replies, "Rather than try to get to the truth, what you're trying to do is build your case and make it the strongest case possible."

Today most districts require police to record the entirety of every interview.

A Black Hole at UNC

Kenneth Wainstein, however, did not record his interviews with the former academic counselors he accused of knowingly participating in academic fraud at UNC.

Last February, when UNC announced the former federal prosecutor would be conducting an investigation into the infamous "paper classes," Chancellor Folt stated, "We have directed Mr. Wainstein to ask the tough questions, follow the facts wherever they lead, and get the job done."

Wainstein's job was to gather and analyze the facts and then present an objective account of those facts. Although an objective account requires the investigator to draw conclusions from the available evidence, those conclusions should be grounded in logical or statistical inferences rather than in conjecture or personal impressions. In other words, a sound investigation, epistemologically and methodologically, should conform to the evidentiary standards of the courts and demonstrate more rigor than the reporting of a local journalist desperate for a Pulitzer.

Yet Wainstein's report possesses only the veneer of investigative science: the substance of the report, like articles in the N&O, is predicated on subjective interpretations of circumstantial evidence. Central to Wainstein's narrative of an athletics scandal is his claim that "several of the ASPSA counselors were knowingly complicit in Crowder’s paper class scheme" (p. 64). Wainstein, however, presents no evidence to support that claim. No emails or other documents indicate that any of the former academic counselors knew Crowder was coordinating the paper classes without Nyang'oro's approval and supervision. Nor did any former academic counselors admit as much during their interviews. The fact is that they did not know Crowder was managing the classes unilaterally (if she even was—considering the way Wainstein misrepresented the academic counselors, I am inclined to question his portrayal of others, too). Moreover, the former academic counselors told Wainstein they did not know.

Why would Wainstein assert otherwise?  "I'll be writing a report of my impressions," he told one of the former academic counselors during an interview. That statement tells us all we need to know about Wainstein's approach. Indeed, what we find in the report are Wainstein's impressions of an athletics scandal rather than irrefutable evidence of such a scandal. Without evidence of the former academic counselors' knowledge that Crowder was managing the paper classes unilaterally, the narrative of an athletics scandal collapses.

As Jim Trainum suggests, an investigator is committed not necessarily to the truth but to building the strongest case possible. By choosing not to record the interviews with the former academic counselors, Wainstein was able to build his case for an athletics scandal and preclude any challenges to his case based on the former academic counselors' actual testimony. As a result, however, a "black hole of crucial information" exists.

After bearing more than three years of the media's sensationalism, the public deserved more than an overpriced investigator's impressions: the public deserved, and still deserves, the truth.


Sarah Koenig was unable to persuade Jay to be interviewed for Serial, but last month he agreed to an interview with a different journalist. Celebrated by devoted Serial listeners, that interview further undermines the case against Syed and gives fans of the podcast reason to celebrate.

Several of the former UNC academic counselors do not trust any journalists enough to grant them interviews, but the former academic counselors do trust me. If I can acquire the resources to conduct and then present those interviews as part of a documentary film criticizing the media's sensationalism over the paper classes at UNC, I believe those interviews and the film will effectively undermine the narrative of an athletics scandal.

Soon I will be announcing plans for the film and asking for your help. If this film can be made, those committed to the truth at UNC will have reason to celebrate.