Rolling Stone, Serial and the Advantages of Uncertainty

Gerry Spence’s How to Argue and Win Every Time—which I read when I was 13 and remember as vividly as other kids remember To Kill a Mockingbird or whatever—has a whole chapter about how one of the keys to persuasion is admitting the weaknesses in your own case. Spence was a celebri-lawyer in the 1990s, he defended Imelda Marcos, and the example he uses in the book is a dude who got hit by a car crossing the street.

The guy was ruined-drunk at the time, and the prosecutor planned to use this information against him at trial. Instead, Spence, his lawyer, not only admitted that his client was drunk in his opening statement, but made it the center of his case. Who’s more deserving of the protection of the law than someone in a vulnerable, confused physical state? Spence won.

The more I think about the Rolling Stone case, the more I think the critical error wasn’t that the reporter failed to check out the details of the rape survivor’s story (though she should have), but that she didn’t tell us the weaknesses in it herself.

In other words, I wonder if we’d still be having this scandal if the RS article included a big fat caveat, if it admitted the limitations of this kind of reporting up front, something like

Look, we didn’t contact the people accused of rape in this story because Jackie didn’t want us to. Given the sensitivity of rape accusations and how traumatized she already is, we didn’t want to re-victimize her by potentially exposing her to more abuse by her rapists. Furthermore, we weren’t able to confirm some details of her account. Regardless, it is not up to us to investigate whether or not she was raped. That is the job of her university, and they have failed spectacularly.

I’m speaking from a counterfactual here, so of course I have no real argument that this would have made a difference. But one thing I’ve realized in the last few years is that when you learn a piece of information can be as important as the information itself.

This is (to make a totally inappropriate transition) I think what makes Serial so great and so popular. The host isn’t playing us clips and going ‘Look! He’s innocent! This is a travesty!’ She gives us the evidence from the prosecution, from the defendant, and goes ‘all of this could mean something … or not. Maybe he’s a misunderstood young man. Or maybe he’s a sociopath!’ She isn’t trying to simplify her case, she’s deliberately admitting the complexities and inconsistencies in it. And by doing so, she not only maintains the mystery of what happened, but of what kind of show we’re listening to. She’s bringing us into the reporting process with her, and giving us some of its power.

What’s happening now is that other reporters are re-doing the Rolling Stone article themselves, interviewing the accused rapist and other people who were there. We’re essentially re-investigating the case, en masse, in real time, and in public. There’s a good reason the justice system does not work this way—one, it is shitty, and two, it results in false certitude, each reporter defending their own source as the ‘credible’ one. Here we are focusing on the events of one particular night in September 2012. Meanwhile, the overall point of the story, namely that universities do not take rape claims seriously, regardless of their veracity, has been lost.

I wrote something earlier this year about how what got Jonah Lehrer in trouble, what makes Malcolm Gladwell so (occasionally) infuriating is this failure, to bring us into the process, to share the knots in their stories and their doubts in themselves to untangle them.

I don’t want to pile on Erdeley. She’s probably having the worst week of her life, and her sin—promoting a false anecdote to illustrate a real problem—is understandable, if not defensible. I just wish she would have shared it with us herself.

14 Comments

Filed under America, Journalism, Serious

14 responses to “Rolling Stone, Serial and the Advantages of Uncertainty

  1. mustaphabarki2014

    Reblogged this on Engineer Marine Skipper.

  2. So true. I didnt know about that case in particular but I know that universities are really good at protecting rapists. It’s gross. But gets lost in the relay somehow. Anyway good article. Thanks for writing it!

  3. I really enjoyed reading this – succinct and informative, and I’m definitely going to get that book – I never win arguments. !

  4. Reblogged this on manishk911 and commented:
    Great

  5. I can’t help it: I’d need a transcript of a Gerry Spence case to trust his recounting of one of his cases. Isn’t it interesting that in a line of work where transcripts of such things actually exist, he doesn’t cite them? In this case, I’m not sure I even understand the anecdote: if the dude in question was the person who was hit, the prosecutor wouldn’t be using any evidence against him (though I suppose the defense lawyer could use it to confuse the legal issues), and if it was the driver who was drunk, then being under the influence likely was an element of the charged crime (not just something to be “used against” the driver). In any event, as you say, the larger point is hardly newly made by Gerry Spence: in any line of work, and inescapably when you’re in an adversarial (or potentially adversarial) situation and someone else has an interest in airing a contrary viewpoint, it is incompetent not to acknowledge problems up front. If you’re a prosecutor and your witness has a problem, the more serious the problem, the more important it is that the factfinders hear it from you first. A witness got a favorable deal to testify? Told a first responder a different detail or story? You better put that out there in your case in chief. I think you point well to different issues: incomplete/incompetent investigation, and failure to acknowledge holes/inconsistencies in one’s theory of an event. As you suggest, even an honest statement of an account’s shortcomings goes a long way towards addressing both issues. Interesting post.

    • I’ll just cut in here if you don’t mind.

      I am usually a rather rational person, but when it comes to arguments, I sometimes just hope that my adversary is too focused on their own version to notice the inconsistencies and holes in my own. The thing is, it works often enough to simply barrage your opponent than carefully think things through, and under such a barrage, it is very hard to remain cool and factual. And this holds true for a far wider arena than personal arguments…

  6. First of all, I wish I was given Spence’s book to read at thirteen. (Definitely adding that to the to-do list.)
    Secondly, doesn’t this and other recent failures in reporting from mass media warrant a closer look at reporter ethics – not only to abide by but also to uphold

  7. Congratulations making freshly pressed not easy to do

  8. Great article. Appreciated its succinctness too! And thanks for articulating exactly why I like Serial so much. I keep expecting a definitive yes he did it/no he didn’t do it answer with each episode, but it doesn’t happen so I keep listening, and listening…

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