This week, Sarah makes a Nancy Grace-style argument against the prosecution. Digressions include '90s romantic comedies, Betty Broderick and flatscreen TVs.
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This week, Sarah makes a Nancy Grace-style argument against the prosecution. Digressions include '90s romantic comedies, Betty Broderick and flatscreen TVs.
Support us:
Subscribe on Patreon
Donate on Paypal
Buy cute merch
Where else to find us:
Sarah's other show, Why Are Dads
Mike's other show, Maintenance Phase
Sarah: And when it's not enough to rally people against the idea of the criminal, you can rally them against the idea of Nick Nolte.
Mike: Ooh, ooh, ooh, I have one.
Sarah: Okay.
Mike: Are you ready?
Sarah: Yes.
Mike: Welcome to You're Wrong About, the podcast where we're soft on everything except tough on crime prosecutors.
Sarah: Ooooh, that's very good, yeah.
Mike: We're sticking it to Nancy.
Sarah: Well, you know.
Mike: That sounds mean, but we are critiquing her ideas, and her, and delving deep into her book.
Sarah: Yes, we're taking her book seriously.
Mike: Everyone did. It was fun and now it's all blurry.
Sarah: I am Sarah Marshall and working on a book about the Satanic Panic.
Mike: And I'm Michael Hobbes, I'm a reporter for the Huffington Post. And if you want to support the show, you can get bonus episodes and other fun stuff on Patreon at patreon.com/yourewrongabout and run PayPal and we've made a bunch of cute t-shirts. If you want to check those out there's links in the description. And we haven't said in a while that it's super chill not to support us.
Sarah: Oh yeah, that's true.
Mike: Ya know.
Sarah: I feel like we were saying that during the apocalypse phase, and now we're in the chronic meltdown phase, and it's just nice to have occasional maintenance reminders that like you don't owe us anything.
Mike: Yes. And that times are tough and they're getting tougher. And it's all dark and weird, and there are a million other things to support right now, and you don't have to feel bad if you just want to listen to the show and that’s it.
Sarah: “Take me now, baby here as I am, holding me close try to understand, love as a banquet at which we feed”. I was listening to Because the Night on the radio yesterday and what you were saying about times being tough, made me think of that.
Mike: I thought this was going to be like Thomas Aquinas or something but that works, too. And today we're talking about Nancy Grace again.
Sarah: Again.
Mike: Again.
Sarah: I'm so sorry. We doing the thing I promised before, and what you think is a nice antidote to my feelings of needing to put my episodes off again and again, until I'm finally satisfied with them. Because what I'm trying to do here is emulate Nancy herself in the style of one of her recent sections, which we talked about in a past installment of this show, in which Nancy presented her case against defense attorneys. I am going to present a case against prosecutors, and it is going to be a flimsy list of things that I don't like very much.
Mike: You've learned from the best.
Sarah: Yeah, just sort of random flakey examples. But then I think what's going to happen is that even with this random flaky list, we're going to end up with a more coherent idea of maybe some of the things that are problematic in prosecutor culture than Nancy was able to give us in her take-down of defense attorney culture, or maybe not, but we'll see.
Mike: I’m so excited, this sounds great.
Sarah: So, yeah. What did we learn so far Mike?
Mike: The central two things that we have learned so far are that the criminal justice system is too soft on criminals, especially habitual criminals. And the only examples of that that matter are celebrity trials, which are indicative of the entire criminal justice system apparently.
Sarah: And who is Nancy Grace? What is she like? Who is our protagonist?
Mike: She's a lady who was a prosecutor in Georgia. She was inspired to become a prosecutor after the genuinely very sad murder of her fiancé, which she subsequently twisted and described in ways that weren't really supported by the facts. And she sort of crafted this creation myth for herself that made the murder of her fiancé fit the parameters of the type of crime that she wants us to get tough on. And since then, she became basically a TV pundit, someone who's had various shows, she shows up on like as a commentator on various cable news programs to talk about individual cases. And the cases that she usually focuses on are big, sensational cases, things like Casey Anthony, and Scott Peterson, and things that tend to get outsized media attention compared to the grinding, quotidian, criminal justice injustice that we see much more of when you actually look at statistics.
Sarah: You, and I have spent more time on this show since the last time we were conversing with Nancy. We spent a lot of time talking about the Wayfair conspiracy theories and about new developments in human trafficking conspiracy theories, and we've seen the rhetorical tools on display there. And I think one of the things that has stuck out to me is noticing how the author or the speaker is managing to sort of keep the audience's feelings eternally activated and keeping the reader, the listener, in a state of some kind of emotional distress.
Mike: Right.
Sarah: Really the excitement of anger, the feeling of creditors being out there. You know, feelings of anger, feelings of fear, like these are both feelings of like emotional arousal.
Mike: Right, right.
Sarah: And take you to a place where like your critical thinking is compromised.
Mike: Right, you’ve got to put another log on the fire.
Sarah: Right, yeah.
Mike: So yeah, where are we diving into Nancy this week? Or are we diving into you? What's our structure?
Sarah: We're diving back into Nancy. We’re just going to pick up where we left off. So, chapter four is called Blood Money, and I'm going to read you the opening paragraph of this, because I guarantee you are going to have no idea where this is going.
Mike: Oh, no.
Sarah: “At the end of every felony trial, when I read out the word ‘guilty’ in open court, I felt no jubilation. But at least I drove home those nights, believing naively that I had helped set things right in some way. I believe that the system had given a small degree of peace to a family torn apart by violent crime. I had no idea that the persecution of innocent victims once avenged by a jury verdict of guilty, continues on in a very real sense. I was shocked to discover there is a whole new meeting to revictimization in which that same family can be victimized over and over again. And at the moment, there is not a darn thing we can do about it. I'm talking about murder-abilia sold through the internet.”
Mike: Murder-abilia?
Sarah: Yeah.
Mike: Is this like people selling t-shirts with like Charles Manson's face on them or something?
Sarah: It's that, its sales of various kinds of commemorative items relating to murders. So that could be things owned by a serial killer, like their correspondence, things from a place where a murder happened, or like t-shirts, or I don't know at this point Etsy stuff.
Mike: Sure.
Sarah: So, yeah. Or as Nancy Grace says, “Get yourself some ginger ale and soda crackers, because I predict you'll soon be as nauseated as I was when I discovered the truth.”
Mike: Nauseated, she's putting logs on the fire.
Sarah: It's like, prepare to be nauseated.
Mike: Yeah, here we go.
Sarah: The start of this chapter, like I was really ready for it to be, you know, not a good argument, but something that involves some real kind of threat to public safety.
Mike: Right.
Sarah: As opposed to, you know, people selling t-shirts with serial killers on them, which I think is problematic.
Mike: Don't do that.
Sarah: But yeah, it’s not leading to further violence.
Mike: And it's not an issue in the criminal justice system, cause it's like three trials a year.
Sarah: But it is upsetting.
Mike: Sure.
Sarah: So, it's worth several pages in this book.
Mike: Of course.
Sarah: Here is an example, “The movie Psycho has a cult-like following. Now the inspiration for the movie, Wisconsin farmer Ed Gein, is immortalized online through a range of bizarre items, such as a wood fragment from his farmhouse, and a crucifix Gein made in a mental hospital. A scrapbook of newspaper clippings detailing his murders, dating back to 1957, sold online for nearly $200.”
So like, yeah, this is an interesting book and that it's like the kind of data points we get range from details of actual murder trials to something that happened on eBay once.
Mike: Right. And also these aren't necessarily glorifying of the serial killer, these are just historically important items.
Sarah: Yeah. So we got murder-abilia which goes on for a while, and then you think it's going over and then it's like the world's most twisted toy store. And it's like balls of serial killers, like, okay. We have chapter five, airbrushing the awful truth, where we again bring in an OJ Simpson trial anecdote. This about how the jury was taken to see OJ Simpson's house, because it was relevant to them understanding the scene of the crime and the defense remade it to be more appealing to the jurors.
So for example, they removed a nude photo of Paula Barbieri from his bedroom. And yeah, that's an interesting point that really has nothing to do with her argument. But yeah, I find the OJ Simpson trial interesting. So every so often I'm reading this book and I'm like, oh yeah, thank you, Nancy.
Mike: Not bad Nancy.
Sarah: We come back again to the idea of criminals getting makeovers. From here on out, like it's, she's just kind of repeating themes.
Mike: Yes.
Sarah: The murderous Menendez brothers got quite a make-over before their first trial in 1993, because they wore nice pastel-colored sweaters. And if you're accused of murder, you shouldn't be allowed to wear a nice sweater. Oh, she interviews Erik Menendez’s wife.
Mike: Oh, wow, she did some actual reporting.
Sarah: Well this is a television transcript from Larry King Live, from when Nancy was on that show in 2004 and interviewed Tammy Menendez. But so Nancy is interviewing Tammy Menendez, Erik Menendez’s wife, who married him after he had been convicted and sent to prison. So, Nancy Grace says, “I respect Mrs. Menendez, she seems like a kind and gentle person. But I worry about the little girl and what possessed Mrs. Menendez to uproot her little girl and move her down the street from a jail.”
Mike: Oh, don't pretend to be about the children, it's so fucking cynical, dude.
Sarah: Also, the imagery in that sentence. It's like, the little girl lives down the street from a jail now.
Mike: Yeah, it's like they're in jail, they're inside the building.
Sarah: She looks out her little window and sees the chain gang cutting up rocks.
Mike: Like, God, I hate this. She just wants to judge this person for marrying an inmate and she doesn't get it. And she's not allowed to sort of admit publicly that I'm judging this person's personal relationship choices. So she pretends that it's about the child. I think it's so fucking gross.
Sarah: Nancy Grace is the phrase, ‘bless your heart,’ in human form.
Mike: Drive safe.
Sarah: This is three lines of texts and we go from, I respect Mrs. Menendez, to what possessed Mrs. Menendez to uproot her little girl and move her down the street from a jail. She has mastered the art of like, the hairpin curve where you start out by saying, “I'm not trying to eviscerate this person. But I'm just going to do exactly that.” And so, Tammy Menendez says, “That's a difficult question to answer. “You know, for a while I did not bring her into the prison system. I kept her away from being subjected to that. It's not as bad as what people think as far as the visiting room. She loves to go, and she doesn't have problems with it right now.”
Larry King says, “But she's going to grow up with some understanding of who her stepfather is.” And Tammy Menendez says, “She will. She sees him on TV every now and then, I don't let her watch anything that's on. But she knows that he's, you know, popular and she deals with it very well.”
And then Nancy Grace's book, voice comes back in and she says, “This exchange proved to me that not all airbrushing begins and ends in the courtroom. When I think back on the interview with Erik Menendez’s wife, I extend her mindset to potential jurors. It strikes fear in my heart. A fear that those in a search for truth responsible for the implementation of justice could be like Tammy Menendez, blind by choice. I pray it isn’t so.”
Mike: Oh, no sympathy. What a nightmare!!
Sarah: Yeah, what do you think about that?
Mike: It's just so, it's such bullshit to be like, oh, I'm so concerned about this child and also, I want to join in the nationwide pile on of making fun of this person's relationship. Even if this person married the Menendez brother, like maybe she does have some mental illness that’s going on. Who knows it's really none of our business, but if that's the case is her daughter's situation helped by Nancy Grace heaping scorn on the mother? If you're concerned about the child, it seems like you should just try to keep as much media off of this person as possible.
Sarah: There’s a thought. I mean, a lot of people are married to people who are in prison and it's a weird thing to pathologize at this point, because so many people are in prison.
Mike: And also, a lot of people fall in love with people through letters, text chats, I mean, this is something that happens. Ah, and then adding to it to be like, oh, I'm so concerned about the child. Oh, get the fuck out of here, Nancy.
Sarah: Right, like it's not your business to decide whether it's fitting for a mother to bring her child to a prison to visit her step-father or her father or someone who is dear to the family, who they have to go into a prison to see. Like, if you're concerned about that, then like ask yourself how many children are having to spend time in prisons in order to visit.
Mike: I know.
Sarah: Parental figures or people they love and like, if you're upset by that, then like, oh boy Nancy, like I have ideas.
Mike: I mean, also what is her like gymnastics, double twist tuck into this jury argument. What is this? I don't understand what she's saying.
Sarah: Yeah, I know, isn’t it great? And she's not a juror, she's his wife.
Mike: Right.
Sarah: Oh, Nancy! But the point is that you're supposed to recoil at the idea of Erik Menendez getting to have a wife.
Mike: Exactly, that's the project here. That's the log, that’s the outrage log.
Sarah: We have a section just called ‘Dog Bite’, which I'm not even going to read to you. I'm just going to let you wonder about that one.
Mike: Thank you.
Sarah: Oh, and then, ‘model moms,’ like why not/ And then opens with, could anybody ever forget Pam Smart, who arranged to have her husband murdered by a teenage lover. To which I would add the footnote, allegedly. Or Susan Smith, who buckled her two boys into their car seats before drowning them and blaming a quote, “unknown black man” for the crime." Those two presented like school librarians in court. And then we're going to just hear about how women, they look normal, they look like normal moms, but they're evil.
Mike: Is Nancy an incel? This is like incel rhetoric. What is she talking about? You can't trust them, they're always lying, they don't seem as evil as they actually are on the inside. I have seen this, it is from Fortune. Nancy, log off.
Sarah: Speaking of soccer moms, the ultimate acting award should probably go to Betty Broderick.
Mike: What? I don't even know who that is.
Sarah: Let's let Nancy tell us because she does a good job here. So, Nancy writes “Broderick basically lived in a jealous rage after her husband, Dan Broderick, a prominent California lawyer, divorced her and married a younger woman. Being angry about the turn of events is understandable, but leaving hundreds of obscene messages on the newlyweds answering machine and then plowing her car through their front door was a little over the top.”
Mike: Oh, wow.
Sarah: “On November 5th, 1989, Broderick broke into their home late one night and executed the couple as they slept in their bed. She was a woman seething with out-of-control rage.”
Mike: Oh my God.
Sarah: “To see Broderick in court, though, with her sensible blonde bob, understated makeup and classic sweater set, you’d think she was on her way to volunteer as a pink lady at the hospital. Broderick stood trial for the murders twice. The first trial in October 1990 ended in a hung jury. Twelve months later, the jury from the second trial convicted on two counts of second-degree murder.”
Mike: Wow.
Sarah: And it became a celebrity trial for the kind of Nancy Grace-y reasons that we're talking about.
Mike: Right.
Sarah: She was this middle-class white lady and yet she had committed this murder. So, I feel like Nancy Grace is like getting at this thing that's like the alleged paradox of true crime TV. Which is like, how can someone who seems so normal commit murder.
Mike: Right.
Sarah: Then it's like, I have no idea, like how in this country could a woman who has, you know, through her very normalcy, poured her youth and her life and her energy into bearing this man's children and ironing his shirts for all of her most beautiful years. And now he's acquired a newer model. He's like, he's done with her. Like that can't be it. Betty Broderick must just be pretending to be normal, but really, she was something else the whole time.
Mike: She was a little sketch of Satan the entire time with Flo Jo devil claws.
Sarah: She was a little cute Satan with an apron on holding a tray of cookies. Oh, but then this is good. Nancy says that, “so that we're not fooled by the facades of people like Betty Broderick, that's why we should have publicly available mugshots.”
Mike: Oh, of course.
Sarah: She says, “Remember those mugshots of the drunken Nick Nolte, Diana Ross and Glen Campbell.” Someone couldn’t think of a third example. “They may look pretty buttoned up and strait-laced in court, but the police photos tell the jury the real story about the night of the arrest. They were drunk and they were driving. Those mug shots and those videotaped statements should be admitted into evidence. They enhance the testimony of cops and eyewitnesses like nothing else. Don't believe me, go online and check out Nick Nolte’s mugshot. I rest my case.”
Mike: Unbelievable.
Sarah: Oh my God, Nancy.
Mike: This is actually like extremely dangerous ideology.
Sarah: Yes.
Mike: What she's saying is she's directly using these celebrity trials, people who have access to all these resources, people who have like personal trainers, and makeup artists, and do present this facade to the world. And she's saying, ooh, we can look past them to the real person.
Sarah: Yes.
Mike: But because the vast majority of trials in America are not of celebrities and we do not have preexisting ideas about who people are, she's advocating for a policy that makes it very easy to get images that make people look like criminals, and so that is the only image of them that we have. Nick Nolte, we have all this other information about who he is.
Sarah: We've all seen 48 Hours.
Mike: Yes, where he actually looks like he's in a mugshot the entire time. This is exactly the problem with Nancy Grace and all of this tough on crime bullshit. These policies are not going to affect Nick Nolte. They’re going to affect random ass people.
Sarah: But I think what I find also troubling here is the idea that there is a population that you expect to commit crime, and a population you don’t expect to commit a crime. And so that Betty Broderick, because she has her sensible blonde bob, understated makeup, and classic sweater vest, doesn’t look like a criminal. And interestingly, the Menendez brothers do look like criminals when they wear sweaters.
Mike: Their sweater say “I did it” on them.
Sarah: But I think when you described that idea, you are maybe unconsciously owning up to believing that there is an appearance that you register when you look at someone and think, oh yeah, I bet that person committed crimes. Oh yeah, I bet that person committed a murder. And I think that's the Nancy Grace belief system and I think that, I don't want to generalize and say that's the prosecutorial belief system, but it certainly seems to be a belief system that many individual prosecutors have.
Mike: Right, it's also essential to the functioning of the criminal justice system, because this is exactly the logic behind three strikes laws, right? That if you've committed crimes three times, even if they're relatively minor, we basically decide that you're unredeemable.
Sarah: Yes.
Mike: Yes.
Sarah: Chapter six, this is where we've been driving this whole time, The Power of the State is a Myth.
Mike: Oh yeah, you mentioned this when you read the table of contents to me and I was like, bouzoink balls, like I have no idea what she's talking about.
Sarah: So, she talks about a couple of high profile cases at the start, including OJ Simpson, which I think is just like getting your kindling into a pyramid.
Mike: She's peddling her little moped so she can get the motor going.
Sarah: So, Nancy says, “The reality is that the state is the individual prosecutor making the case and taking the heat. In order to buy the defense is conspiracy theory you must believe that the individual, the local county prosecutor wants desperately to send the wrong person to jail, and that the prosecutor is somehow morally dedicated to a conviction, regardless of whether it's right or wrong. That's completely absurd. I have great faith in the Constitution, which was conceived and created in part to protect the accused, the defendant, on file from the power of the state. The trial-related personal freedoms and the Bill of Rights protect the defendant, not the victim, and certainly not the prosecution.”
Mike: Did she just say, “I respect the Constitution”, and then like two sentences later, she said like, “the Constitution is bullshit because it doesn't protect victims”.
Sarah: I respect the Constitution, which has never done a thing for me in my entire life.
Mike: Yeah, which sucks ass.
Sarah: “Plus, the Constitution's hard, when it comes down to what goes on in the courtroom. It's the state versus the massive power of the defendant's constitutional protections. But the defense, even with multimillion dollar pockets for investigators and experts argue to a jury that the prosecutions the one with unlimited resources and manpower to prosecute the quote, ‘little guy.’”
Mike: Oh, my fucking God, Nancy. It's like she's complaining about speed limits by talking about Formula One drivers.
Sarah: Right? That's a really good comparison. Cars are capable of going this fast somewhere in the world and therefore that's what's going to happen on the street where your child is playing hockey.
Mike: Right, that's not how 99.9% of trials work.
Sarah: Let's really get into the sentence though. I'll read it to again, “When it comes down to what goes on in the courtroom, it's the state versus the massive power of the defendant's constitutional protections.”
Mike: She hates the Constitution so much.
Sarah: Find someone who loves you as much as Nancy Grace hates the Constitution.
Mike: So where does she go with this? Surely, she has examples.
Sarah: Okay, well actually, this is great, she goes right into her favorite guy.
Mike: Oh no.
Sarah: We also saw this argument in the Peterson case.
Mike: Oh, for fucks sake.
Sarah: In truth, Geragos ended up with some of the world's most renowned experts like Dr. Henry Lee and Cyril Wecht at his beckon call. It's like, ah, yes, Mark Geragos.
Mike: Yeah!
Sarah: My nemesis.
Mike: And two forensic scientists that I've definitely heard of.
Sarah: Also like, since we released our previous Nancy Grace episodes, several people have tweeted at me and been like, Mark Geragos does suck, though.
Mike: Okay.
Sarah: And I've been like, you know what? I bet you're right.
Mike: Well, we've established that Nancy is technically correct about everything that she's saying, it’s just irrelevant.
Sarah: It's just that it doesn't matter.
Mike: Yes, what's interesting is that she's actually making her entire book is an argument about how the rich have a different justice system than other people. Because even if you're not necessarily rich, once your trial becomes a media sensation, you will often get like some super-duper, duper high powered lawyer because they want the media attention. So basically, all of these cases, all of them are actually just illustrating the flaws in the justice system for rich defendants.
Like the way that high powered lawyers have perverted the criminal justice system. Like she could write a really good book about white collar crime and rich people justice. But she saying this thing that happens to 0.1% of defendants is a problem for everyone else, and we need to change the system to make it harder on rich people, even though those rich people are going to wiggle out of it anyway and it's only going to end up harming poor people.
Sarah: Yeah. And in the same way that I think the way that you know, our cultural understanding of like sociopaths and serial killers allows people to assume that prisons are getting so full because people are just so bad out there.
And really what it works out to is like, we imagine these terrifying monstrous figures that we have to defend ourselves against with these very powerful laws. But the laws are made to crush small resourceless defendants with very little effort.
Mike: Right, it reminds me of my favorite, ‘well actually’ of 2020.
Sarah: Ooooh. Which is a year as rich in ‘well actually’s’, as the bubonic plague years were rich and drippy sores. I don't know, I didn't want that to get that gross, but it went there. I'm sorry, we're having a plague here.
Mike: There's been a couple of editorials columns written in right-wing journals, like National Review and Wall Street Journal that will publish like, well, you know, all these left-wing people are complaining about racial bias among the police. And they're saying that so many black people are killed by police. Actually, more white people are killed by police every year than black people.
Sarah: Right.
Mike: I mean, that is true because there are more white people in the population than black people, right? It's supposed to be this like great own like, oh shit, I'd better drop all my like woke social justice stuff. But it's like, yeah, the police are problematic.
Sarah: Like maybe the police shouldn't be murdering anyone.
Mike: Yes!
Sarah: Yeah, just like a minimum of killing.
Mike: Maybe a minimum of killing.
Sarah: From the people whose job it is to minimize the amount of killing in our communities would be great.
Mike: Yes.
Sarah: I think.
Mike: And yeah, like Nancy Grace is saying, look how these high-powered lawyers warp the criminal justice system. And it's like, yes, Nancy.
Sarah: Well also it's funny because like one of the things that I take away from the OJ Simpson trial story is that I do think that the OJ Simpson trial is much, much closer to the way the legal system should be functioning in this country than the standard proceeding where the defendant is sort of moved through the trial system like a piece of food through the digestive system. You know where most charges result in a plea deal, where you are much more likely to end up with a lawyer with far too few resources than with too many, whatever that looks like. And just the idea that, that the prosecution is ever going to, in our wildest dreams, come close to being steamrolled by the defense in any kind of a general way in this country. It would be so great if that were close to something we should be concerned about, but I really don't think it is.
Mike: So, where is she going with this? What is the sort of thesis of this entire chapter?
Sarah: All right. We're in for a Nancy ‘woe is me’ story, okay. So, just get ready.
Mike: Oh no.
Sarah: “I was on my way to answer a calendar call where the first case of the day was a murder trial. The shooting had left one man dead and another with a colostomy bag for life, all over a handful of dope ropes, gold chains on display in the showcase of a pawn shop. En route, I had to wait at a red light several miles away from the courthouse. While my car was stopped, dark foul-smelling smoke began pouring out from under the hood of my Honda. I didn't have the time or the money to fix the thing, so I just kept driving, hoping it would keep running. I looked over to the left, expecting to see another driver staring at my smoking hood and holding his nose. But instead, there was a huge tractor trailer sitting there. He could either go straight or turn left, I could only turn right. But when the light changed, he took a right turn, his giant wheels, literally rolling over the top of my car.”
Mike: What?
Sarah: “Guess what? The state screeched to a halt that morning because I wasn't there to present its case. The state was stuck at a red light with a tractor trailer on its hood. The state that is spoken of so anonymously, as if it's the secret agency, is really a collection of people who are public servants pursuing justice. In this case, the state was a person standing in front of the jury with big dark circles under her eyes and resoled shoes.”
Mike: Wow, it's interesting how no defendant has ever had trouble getting to the courthouse, like car trouble or maybe work appointments, something like that.
Sarah: You know what I love about this anecdote is that it's like, you know what it would be perfect for, the start of a romantic comedy. This is the footage of her and her like eventual love interest is like also having a difficult morning. And it's all set to like, (singing) this will be everlasting love.
Mike: Oh Yeah.
Sarah: Like, this is how you set up an underdog protagonist.
Mike: And 2/3 in she finally takes off her glasses and, oh my God she's beautiful.
Sarah: Do you remember how in the nineties, every movie with like a strong female protagonist, they had to show her like kickboxing at some point to like process her emotions. So, yeah, she comes home and kick boxes.
So, this is the opening of Amazing Grace, a movie about a struggling Atlanta prosecutor. It is not an argument in a book about how the defense has too many resources on its side.
Mike: It's also one of those things, it's so Google-able, just like look up how many indigent defendants go to jail every year? Like, it's really not hard. But it's not liked the person who was on trial got off because of this, right?
Sarah: No, she's not implying that anything went wrong, but just that she was late and she probably got chewed out over this, I would imagine.
Mike: But this is the power imbalance, right? Because if a prosecutor doesn't show up to court, they just postpone it for the next day. Whereas if a defendant doesn't show up for court, oftentimes they just get the punishment that's coming to them.
Sarah: Yes exactly, yeah. She says, guess what, the state screeched to a halt that morning, because I wasn't there to present its case. As if that's bad. Yeah, and imagine if like I were, you know, going to trial for a crime that I had allegedly committed, and I couldn't be there. Like I wouldn't write in my memoir, “And then everything ground to a halt and they were like all the defendants not here through no fault of her own, so, we can't do it right now.”
Mike: People lose cases when their lawyers file things like 20 minutes after the midnight deadline.
Sarah: Yeah.
Mike: The system is stacked against defendants having these kinds of completely ordinary life problems, right, like getting the flu or having car trouble.
Sarah: Yeah, it's her setting herself up as a plucky protagonist, that's all it is.
Mike: Totally.
Sarah: So speaking of prosecutors and storytelling, I have a couple of good quotes from my interview with Andrew Fleischman, who is a post-conviction lawyer in Georgia.
Mike: And a friend of the show.
Sarah: And a friend of the show. And I reached out to him as like an anti-Nancy Grace, because he works in Georgia and because he is a post-conviction defense attorney. So, he and Nancy are nemeses.
Mike: He actually was driving the tractor that day, and he stopped her from going to that trial.
Sarah: He says, “I would say certainty is a form of charisma, and the prosecutors we see are very certain. And defense attorneys by definition have to be a little more nuanced.”
Mike: It's like the difference between putting false statistics about child trafficking on the internet, versus making an hour-long excruciating podcast debunking those statistics.
Sarah: That's a very good comparison, Mike. It's like you have a meme versus a podcast which one's going to do numbers.
Mike: I know.
Sarah: Here's some other thoughts for us to reflect on, “prosecutors who lose cases get fired and they're often not the ones who cheat. Bad prosecutors get promoted, if you cheat to win cases, you don't get fired.”
Mike: That's interesting. That's another parallel to white collar crime too.
Sarah: Yeah, I mean, and I think that one of the things we can certainly say about prosecutors in this country, I think without overly generalizing, is that when a prosecutor is revealed to be guilty of some form of misconduct. What often appears as a contributing factor is and office culture very focused on winning, and on maintaining winning streaks, and on being the winningest prosecutor around.
Mike: Right.
Sarah: And also, on, you know, getting reelected based on your ability to be tough on crime. I just don't think it's that difficult to imagine how that kind of culture could lead you to find yourself trying a case where you may begin to have doubts. And if you have won 19 cases and are sort of reaching toward the prospect of winning your 20th, I can understand how that could contribute to you cutting some corners.
Mike: Right, right.
Sarah: All right, and then let's close with Nancy's thoughts on the real power of the state.
Mike: I wonder what she says.
Sarah: “Another popular strategy among defense attorneys is to characterize the prosecutor as this Darth Vader-ish figure, whose limitless power is hell bent on persecuting and destroying helpless defendants with a single motion. I promise you, I never felt that sense of invincibility trudging through housing projects in my $39 dress from Chadwicks, trying to deliver subpoenas to witnesses who weren't exactly happy to see me at their front door. I did, though, always draw great strength from believing deeply that I had right on my side. I felt the same way every time I entered a courtroom, speaking directly to a jury, as I began my opening statement at trial. I would always be reminded that the real power of the state is the power of right. The power to do right, that is the one real power of the state.”
Mike: But again, she's demonstrating exactly the thing she's saying doesn't exist.
Sarah: Go on.
Mike: I mean, she's saying that she's morally right at all times. And those are the most dangerous people.
Sarah: Right. Her argument is that the one real power she has is being on the side of justice and truth. And it's like, that is the one form of power you don't really have, actually. And you render yourself more dangerous by having all this power that you refuse to acknowledge you have. It's like the defense is Jason chasing you through the sewers and you're the final girl like hitting him with your soft little fists. And so, you have to use all the powers available to you because you're the underdog. And that's such a great way of disguising from yourself the fact that no, you're Jason. Like you're the one who can end someone with like a flick of your machete holding wrist. And because you aren't aware of how much stronger you are than the people with whom you're doing battle, you are behaving with this proportionate force.
Mike: Right?
Sarah: I'm just very wary of just any narrative that the state sells itself about its own powerlessness. And I think it's troubling that so many of the things that Nancy Grace says, so much of her rhetoric is familiar to us. Like the thing about how the Menendez brothers shouldn't be wearing nice sweaters, because they're trying to look innocent and not like the parent murderers that they are. That's based on the premise that you already know the outcome of the very trial at which they're wearing these sweaters.
Mike: Right, it's like, that's why we're here Nancy.
Sarah: And so the cases that Nancy Grace describes as dangerous, because they involve some kind of real presumption of innocence. Like that's not dangerous, we're supposed to be doing that.
Mike: Right! That's the purpose that's supposed to be your job, that's supposed to be everybody's job.
Sarah: Okay, you’re tax dollars at work, “Another misconception about the power of the state is the myth that the government. The evil empire is taking in billions and billions of dollars in taxes is somehow go to help convicting innocent people of crimes they didn't commit. That's simply ridiculous. I've often wondered what happens to all the money I've been paying in taxes all these years. What I see is Congress spending millions and millions of dollars on an outrageous list of projects that are nothing more than political boondoggles.”
Mike: Oh my God.
Sarah: “As I write this, I have just learned that Oregon prisoners now have flat screen TVs to enjoy in the privacy of their own jail cells. All though the Oregon state correctional institutions, administrator, Randy Gear contends that the televisions are not a luxury item. The fact is the Salem prisoners now get to kick back on their bunks and enjoy a brand-new flat screen TVs that most of us on the outside don't have.”
Mike: Oh, my fucking God!!
Sarah: “The seven-inch sets are copies of flat-screen models in cars and airplanes.”
Mike: Wait, did she say seven-inch?
Sarah: Yes.
Mike: They have seven-inch TVs, who fucking cares if they're flat-screen. Seven-inch TVs is not a luxury item, that's like a Nintendo switch.
Sarah: Yes, most of us don't have seven-inch TVs because we don't live on airplanes. This is actually the only thing we know about prison conditions in this country. Like there's been no facts released except for the seven-inch flat screen TVs in Oregon.
Mike: They're watching Madagascar 2, and it's an outrage. Sure, Nancy, I love that she throws in fucking like ear marks into this. Throw that in there, it's like a jambalaya, it's like whatever's in the fridge, chop it up, throw it in.
Sarah: I also love, she does this a lot. She had a thing earlier about it is ridiculous to argue that prosecutors are driven by the desire to convict innocent people of crimes they didn't commit. And it's like, people aren't really arguing that prosecutors are knowingly doing that.
Mike: Right.
Sarah: That happens sometimes, but like what seems to be more the case is that the culture of prosecutor's offices incentivizes winning to such a degree that pursuing the truth becomes something that might jeopardize your career.
Mike: Right?
Sarah: Like no one is saying that you have malice in your heart, Nancy, we're saying that the heroism in your heart is more appealing to you then logic at times.
Mike: I mean, I think Nancy has malice in her heart, but go ahead.
Sarah: Well, sure. But we don't have to make that argument. We don't have to prove what's going on in her heart to show that he's doing something that's harming people, which is also something that Nancy doesn’t seem to know that you can do.
Mike: Seven-inch TVs, man!
Sarah: Seven-inch TVs makes it all worth it. Not going to see your kids grow older, graduate from high school, and slowly forget what you look like, but you have your seven-inch TV.
Mike: Christ.
Sarah: And then she also has like, tax dollars that are being spent pointlessly just in a random list that has nothing to do with what she has been talking about. So, $50 million dollars to build an indoor rainforest in Iowa.
Mike: Yeah, yeah, yeah, yeah, yeah! This is like every libertarian speech ever. They're like, we're studying the mating habits of tree frogs. Like they'll still pick these random things that happen to get government funding and be like, this is so ridiculous.
Sarah: It's so cherry picked, it doesn't prove anything. And a lot of it I look at and I'm like, this doesn't seem like a bad idea. Like one of them is $489,000 dollars for swine waste management in North Carolina. And like, from my limited perspective on the issue, I know that there are a lot of swine in North Carolina and that swine waste management is one of the major issues facing America's swine farmers. So like, that certainly seems worth half a million dollars.
Mike: Yes, and it's also funny that whenever you get these lists, no one ever puts the military on them, which is the number one thing that we spend money on and it's extremely wasteful.
Sarah: No, no, no, we need that. We need all that stuff, we're very scared. We have to keep going to see movies about how scared we should be and how only the military can save us, and how couples counseling won't do for your marriage what's saving your wife and children from terrorists will!
Mike: Exactly.
Sarah: And then she also, I appreciate this and her list, she has $273,000 to help Missouri combat Goth culture.
Mike: That one I agree with her, that one's wasteful.
Sarah: Yeah, I think it's important to find the moments where we're on the same page with Nancy.
Mike: I am desperate to know what they spent that on, though.
Sarah: Right?
Mike: Combat Goth culture, what does it mean? There's like walking around clubbing Goths with like a blackjack.
Sarah: Goth clubbing should involve Bauhaus, not violence. Come on, that was good.
Mike: That was very good.
Sarah: Oh boy, here's a section, I'm just going to read you the title and the first sentence, and then we're going to move on with our lives forever. All right, you ready?
Mike: Thank God.
Sarah: Title, Slave Wages, first sentence, “Cops and prosecutors are underpaid and overworked.”
Mike: I sort of agree with her.
Sarah: I mean, it's a decent point, but the title certainly to me obviates her argument. But say more about that.
Mike: It's such a hard thing to talk about because it seems so obvious that like high salaries for people in the criminal justice system is like, so gross. Cops should not be doing these like overtime loophole schemes to be making like $400,000 a year, like that's completely bananas. But when you lower salaries, you get worse people.
Sarah: Well, yeah, I mean, I think one of your points here is that of people are underpaid than they are vulnerable to corruption.
Mike: Exactly, but yeah, where's Nancy going with this? I'm scared.
Sarah: I mean, she is making this argument that low pay causes corruption. Yeah, and she says, “Forget what you've seen in the movies. Prosecutors, unlike their silk stocking opponents on the other side of the courtroom, very often do not have an army of flunkies and assistants to prepare for a morning calendar call of say a hundred cases. I would sit in my office and dig through five or six boxes sent from the district attorney's office, trying to find the 80 files I needed for the next day's arraignment. Without fail they'd be in the wrong offices or lost in the filing room.” I'm just picturing like Joan Cusack and Broadcast News now.
Mike: Oh my God, yeah.
Sarah: “There were no secretaries, no assistants, no paralegals. I wish I had a nickel for every time I had to go to the crime lab to drop something off or pick something up. I'd be rich if I had a dollar for all the days, I had to drive to the police station, where I'd be hassled about where I parked when I was there to pick up fingerprint cards, or a police report, or simply drop off a subpoena.”
I believe all this, it's just like, she's making up the idea that she was fighting against a side that had, you know, all the resources and power that she didn't have in these harried moments of having to run these prosecutorial errands herself. And that's not the point.
Mike: Right. Also, I am looking up public defender salaries.
Sarah: Give me some data, baby.
Mike: The first link that comes up for this is the average public defender early in their career, entry-level, makes $53,000 a year. That's not like wearing silk socks to court money.
Sarah: I don't know who is doing that exactly.
Mike: Again, easily Google-able, this is the first fucking link that comes up. Defense lawyers are not raking in the dough. Celebrity defense lawyers are, but not the typical defense lawyer on like a low level, whatever drug possession case, like the vast majority of cases that go through the criminal justice system. She could have done like perfunctory work and found extremely obvious counter arguments to her point.
Sarah: Yeah, , she knows what the arguments are. She doesn't not know this, like the point is to distract us, you know? And it is distracting to have like Nancy, she has to read hundreds of cases and there's all these boxes and she's running around and where is the defense attorneys are wearing silk stockings, you know? And like, we can speak to the validity of her points. Like we can be like, gosh, if you felt like continually overwhelmed as a career prosecutor, maybe that's bad. Like maybe the prosecutors shouldn't be overwhelmed, setting aside the rare instances where the prosecutor is more overwhelmed, overworked and under-resourced, than the defense team.
Mike: Yeah.
Sarah: It's probably the case based on what you're saying to me, Nancy, that like everyone is overworked and underpaid and the scenario, and that's bad.
Mike: I actually think a lot of public servants should be getting paid way more. Like teachers and librarians are the obvious ones, but like more prosecutors. Like if that allows prosecutors to spend more time, actually ascertaining the truth.
Sarah: And to be less vulnerable to graft.
Mike: Exactly and if that comes with like very different incentive structures, I'm actually fine with reforming the criminal justice system in a way that pays higher salaries.
Sarah: Throwing money at a problem actually does work in a lot of instances, you just have to throw it at the right areas.
Mike: Yes. And it has to come with accountability. I mean, so much of this, the problem is that there's no accountability mechanisms for prosecutors, so that if it was like, hey, look, we're going to pay you like 50% more and it's going to be much easier to fire you in cases of malfeasance. So you have to be extremely careful to work for the side of actual justice, not just for the site of convictions. I would actually be fine with those reforms. Like there are worst ways to reform the criminal justice.
Sarah: Yeah, if we incentivize truth seeking as the thing prosecutors do, then I think there would be more truth seeking. Ironically, it's the same thing we have to do for defendants. Like if we incentivize good behavior and if we de-incentivize criminality, by actually giving people living wages, not surveilling them to a degree that resembles torture when they're on probation, not making it financially basically impossible for them to not return to criminality on release. Like all these things. If we make it easier to make good choices, then more people will make more good choices. And that's true of criminals, exactly as much as it's true of lawyers probably.
Mike: Right, so again, we agree with Nancy, but we have a ‘yes and’.
Sarah: Yes and Nancy. All right, I'm going to find something to wrap up on. She says, “When I first came to the district attorney's office, there were very few female cops and lawyers, female judges were even harder to find. At the time women were usually assigned to work juvenile cases, which are not jury trials and do not apply many of the standard rules of evidence. We were usually going after deadbeat dads, writing appeals, or acting as assistants to trial lawyers. Practically everybody involved in the actual trial of cases was a man except the jury and in many cases, the victim. I've been called little lady, young lady, lady lawyer, and other not so nice names right in front of juries by defense lawyers, experts, and judges. Every time it happened, I looked that person right in the eye and act as if I hadn't heard it. I'd inevitably catch at least one woman on the jury with a look of disgust on her face, as if to say she couldn't believe that someone had said something that condescending.”
Mike: I wonder if there are minority groups that Nancy Grace doesn't belong to, who also receive condescending treatment.
Sarah: I mean, she doesn't mention any, so there probably.
Mike: Probably not true, okay.
Sarah: Probably aren't any.
Mike: Fake news.
Sarah: “Sometimes the sexism was far more insidious. During a 1995 trial in which I was prosecuting a defendant on rape sodomy and murder charges, I was working late one night when I heard the sounds of someone outside my office. An investigator for the defense had gotten into the building and delivered motion under my door. It was a motion filed to enjoin me from wearing skirts a specific number of inches above my knee.”
Mike: Holy Shit.
Sarah: “Or a blouse that was too low cut. It also enjoined me from bending over in front of the jury facing either way.”
Mike: No way!
Sarah: “I felt completely humiliated, all court documents are public. Anyone can find out anything about a case by going down to the courthouse and looking it up. I cried behind closed doors, of course, because it was a public embarrassment to be accused of dressing inappropriately and it was flat out not true. I still have every one of my 10 trial dresses that I wore over and over and over. Every one of them covered me from neck to wrist to knee. I was personally attacked on a groundless charge that was meant to deflect attention away from the trial.”
Mike: I mean, I feel sympathy for her, this sucks.
Sarah: Yeah.
Mike: It feels bad to be accused of something you didn't do, Nancy.
Sarah: Yeah, it's interesting that, you know, so many years later it remains so upsetting to think about a time when you were treated as if you had done something you knew yourself to be innocent of.
Mike: Right.
Sarah: And maybe you weren't accused of that out of malice, but it still hurt.
Mike: Yeah.
Sarah: So this is from a 1996 Atlanta Magazine article about Nancy Grace called, The Prosecution, Never Rests. And first we get a depiction of Nancy in action, “Walking over to the defense table, she points to where the defendant with a pained expression. ‘This man’, she practically shouts ‘is a savage’. A large part of my job is making an emotional connection with the jury, she says later, after winning the conviction. The technical evidence may prove guilt, but a lot of that stuff goes over the jury's head. As Grace’s undefeated streak struck toward 100 cases, every defense attorney in town would give a month's pay to beat her. Her combative ways and animated southern belle style have won her few friends in my defense attorneys and many charges that her record is inflated because she drops any case that she could possibly lose. Her occasional flamboyance also rubs some the wrong way, such as the time she called a drug sniffing dog as a witness in a cocaine trafficking case. “
Mike: What the fuck?
Sarah: “Last year defense counsel, Dennis Scheib, caused a stir by filing a pretrial motion, asking that Grace be prevented from wearing “inappropriate” attire, such as low-cut blouses and short skirts that show off her figure. Grace, who typically wears conservative suits and dresses to court, dismissed the motion as meaningless subterfuge. She won yet another murder conviction.”
Mike: Okay.
Sarah: I think the story is interesting because it's one of the moments in the book when I feel, you know, just on an individual level, the most compassion for Nancy Grace, because like that sucks. And I feel like, you know, he's telling us this story in a way that is effective because it's a story where she had to triumph against sexism and where her career itself and her success and her winning streak is a triumph against sexism. I think it's just important to acknowledge the power of that rhetoric.
You know, if sexism is one of the obstacles that is keeping you, potentially, from having the same winning streak as a male prosecutor, then like, that's the rare case where sexism isn't preventing something good from happening.
Mike: Right, it's also interesting that she doesn't extend her experience to empathy for people elsewhere in the criminal justice system that might be experiencing this right, that she mentioned all the judges are men. All the lawyers are men, oftentimes the juries are men. I wonder how that affects female defendants. Right, and there's all these other forms of bias too. She's taking this like micro example of sexism against herself, but she doesn't seem to be asking like, are there other places in the system where that could be happening or other ways that’s playing out that I'm not noticing. Like there's this weird incuriosity in it.
Sarah: Yeah. And I think that the kind of unspoken logic here is that she is worthy of compassion because she is good. Like because she is a Crusader for the thing she calls justice. She's there for worthy of empathy. And if the same thing happened to a defendant, we can already assume the defendant to be a bad person. So like, why worry about that?
Mike: Right, and it's not like Nancy has a flat screen. Like the most unforgivable sin, owning a flat screen.
Sarah: Nancy wears a $39 dress from Chadwick's, whatever the heck that is.
Mike: So, yeah.
Sarah: So yeah. I guess I feel like it's also important to acknowledge that, like you can hear that story and be like, that sucks for a little baby prosecutor, Nancy Grace.
Mike: Yeah, people don't deserve that treatment regardless of how I feel about their personal ethics.
Sarah: Yeah. Things can be bad even if they happen to people, I don't like. And people can do bad things, even if they are also underdogs and the same story where they are doing something that is hurting someone else.
Mike: Yes, beware of people who cast themselves as underdogs.
Sarah: Yeah, so, beware of America, really.
Mike: Yes, exactly. And flat-screen TVs.
Sarah: Yes. If you;ve got a seven-inch flat screen TV, you will be living in the lap of luxury and none of the other bad stuff in your life will matter. So, God, I guess I'm getting one.