Wrongful Convictions, Making a Murderer, and Social Media with Laura Nirider

Episode Notes

Transcript

Law Technology Now

Wrongful Convictions, Making a Murderer, and Social Media with Laura Nirider

04/29/2020

Dan Linna: Hi everyone. This is Dan Linna. Thank you for joining us for this edition of Law Technology Now on the Legal Talk Network. Today we are speaking to my Northwestern Pritzker School of Law colleague Laura Nirider. It’s March 24 and we are practicing social distancing so Laura joined us by phone. We think the episode turned out pretty well and we hope you enjoy it. And I hope that you and your family are safe and healthy. Take care.

[Music]

Dan Linna: Hello. This is Dan Linna. Welcome to Law Technology Now on the Legal Talk Network. My guest today is Laura Nirider. Laura is Clinical Associate Professor of Law and Co-Director of the Center on Wrongful Convictions at Northwestern Pritzker School of Law. You might know Laura for representation of Brendan Dassey, whose case was profiled in Netflix series ‘Making a Murderer’.

More recently Laura and our Northwestern colleague Steve Drizin released a new series of podcasts Wrongful Conviction: False Confessions which has been ranked as high as number three in the United States. Today we will talk about ‘Making a Murderer’ and Laura’s ‘Wrongful Convictions’ work with a focus on lawyering in the age of social media.

Laura, welcome to the show.

Laura Nirider: Thanks so much for having me Dan. It’s my pleasure.

Dan Linna: Great. I can’t wait to dive into the conversation, but before we get started we want to thank our sponsors.

Thank you to our sponsor Logikcull, instant discovery software for modern legal teams. Logikcull offers perfectly predictable pricing at just $250 per matter per month. Create your free account anytime at logikcull.com/ltn. That’s logikcull.com/ltn.

We also want to thank our sponsor Headnote. Headnote helps lawyers get paid faster with their compliant e-payments and accounts receivables automation platform. To learn how to get paid quicker and more efficiently, visit them at headnote.com. That’s headnote.com.

Laura, I am so glad you are able to join us. Can we just jump in and talk a little bit about — tell our audience about the work you are doing as the Co-Director of the Center on Wrongful Convictions at Northwestern?

Laura Nirider: Yeah. The Center on Wrongful Convictions is one of the nation’s oldest Innocence Project type organizations. We are 20 years old now and over those 20 years our faculty and students have exonerated more than 40 innocent men, women and children and contributed to the release of dozens more, which I am so proud to say makes us one of the most successful innocence organizations in the country too.

The CWC has an incredible history that long predates when I joined it. The CWC first built its reputation when it helped exonerate six people off Illinois’ death row which contributed to the abolition of the death penalty here in Illinois which was announced at Northwestern Law School. Since then the CWC has become focused, not exclusively, but focused on The Problem of False Confessions. We house some of the nation’s leading experts on false confessions and police interrogations and we are at the forefront of a number of conversations, scholarly, research, legal and public around wrongful convictions, false confessions and how to make these injustices right.

Dan Linna: Well, I think a lot of our listeners might not — when someone hears that someone is a law professor, they might not understand how the clinical side works and the kind of stuff you do day-to-day Laura. I mean what are the things you really spend your time doing when you are representing clients in this space?

Laura Nirider: Sure. Well, there are two kinds of law professors, right, both absolutely vital to the legal education experience and this is true of many law schools. There is a straight doctrinal side, which are usually lectures and seminars that students take. And then a lot of law schools have clinics which are basically law firms that operate out of the law school. And these clinics can have all kinds of different specialties. In Northwestern we have everything from environmental law, to juvenile justice, to civil rights, to entrepreneurship law, to wrongful convictions. And the Center on Wrongful Convictions is part of our clinic.

We get about 3,500 letters every year from inmates around the country asking us to look into their claims of innocence and there are about five lawyers on our staff and a wonderful team of about 20 law students, give or take, every semester. So we call through these cases the best we can with our partners in the private sector of course, at private law firms and we take the cases where we think we can make a real difference, not only exonerate clients, but we also think about changing the law.

(00:04:45)

We try to pick cases that will elevate important areas of the law that need to be looked at differently, maybe there is a lot of potential for reform and we take these stories that our clients have lived through, right, sometimes 10 years behind bars, sometimes 15 years behind bars, sometimes 30 years behind bars for crimes they definitely did not commit. We take their stories and we do our best to shout them from the mountaintop all over media, all over social media, because we are in such a moment people around the country, around the globe are listening to these stories of injustice and we want to make a difference, we want to change the system. So there is no better time to be doing this work and to be talking about it than right now.

Dan Linna: Yeah, that’s great. And I want to get into the media and the social media piece of that, but just to kind of follow up on those, I mean what do you think is the best estimate of the scope of the wrongful convictions problem? I think we all kind of — lots of people kind of tend to think, well, this couldn’t happen to me or it’s a limited problem, but I mean how many people are wrongfully convicted each year in the US? How many people do we think are currently in prison on wrongful convictions?

Laura Nirider: Well, we don’t have perfect data on that because this kind of information is not tracked. There are probably maybe close to a 1,000 lawyers in the country who do this work and that’s it. And of course the work is all done in pro bono or most of it is done pro bono so we don’t have a strong sense of the scope of the problem of wrongful convictions simply because we don’t — we only know about those cases that we find, right? There is no overall sort of survey mechanism here.

We do know that there have been over 2,000 exonerations. There is a National Registry of Exonerations that’s hosted by the University of Michigan and UCAL Irvine. We know that there are hundreds of false confession cases, which is my own specialty. We know that kids, if you look into that dataset, are between two and three times as likely to falsely confess as adults, but in terms of getting a handle on the overall problem, that’s a real challenge.

Dan Linna: Well, tell us a little bit about your representation of Brendan Dassey, I mean how did that come about and then also then your appearance on the Netflix series ‘Making a Murderer’?

Laura Nirider: Yeah, yeah, yeah. So this is a fascinating story because it’s a story very much about legal education and the power that it can have on students.

So let’s see, it was about 13 years ago, I was a law student then at Northwestern and I was in my third year of law school and I had my life planned out. I was going to be a corporate litigator, I had the job lined up after graduation, everything was smooth, and on a complete whim during my third year of law school I decided to sign up for the Center on Wrongful Convictions Clinical Class, which at the time was taught by Steve Drizin. This is a complete gambit, right, I had no preexisting knowledge of criminal law besides 1L basics, I had no preexisting knowledge of wrongful convictions or false confessions.

And I walk into the class and within about, oh gosh, two or three weeks Steve, then my professor, called me into his office, because you see this is about four months after Brendan Dassey had been convicted in Wisconsin of helping his uncle rape and murder a young woman named Teresa Halbach. Steve called me into his office, I guess I was the nearest available student and he said I have just gotten involved in this case out of Wisconsin involving a 16-year-old boy with intellectual disabilities who confessed to a crime that I don’t think he committed. And he handed me the interrogation videos of Brendan Dassey and he told me to go home and watch them.

So I go home. I sit down on my couch. I get out my laptop I pop in these DVDs, because this is 13 years ago, and I did watch them, right, all these hours from start to finish. And my heart broke because I saw two adult police officers manipulating a frightened 16-year-old boy into confessing to a murder that he couldn’t even describe, and that was a transformative moment for me. I could not walk away.

So I graduated and had the good fortune of after about six months in the private sector being able to come back to Northwestern and work alongside Steve to build the Center on Wrongful Convictions and to represent Brendan and other kids just like him ever since.

Dan Linna: And so how in that process did it come up then that this opportunity to appear on ‘Making a Murderer’, I mean how did that enter into the whole equation?

Laura Nirider: Well, that’s the crazy thing. So we took this case. I graduated, I came back, we took this case and had no idea at the time that anybody wanted to make a movie about this case at all. It wasn’t until two years later, nearly three years later in 2010, we go up to Manitowoc, Wisconsin for Brendan’s post-conviction hearing, right, it’s January, it’s Northern Wisconsin, it’s snowing like crazy, we are in court for this five day hearing with our students doing our thing.

(00:10:07)

And on day two we notice that there are two women in car coats standing off to the side in the courtroom filming everything, were doing with a handheld camcorder. And we walked over to them and kind of said, well, what are you guys doing? And it turns out this was Laura Ricciardi and Moira Demos. They told us they wanted to make a movie about this case.

Now, you have to understand Moira was still in graduate school, right, she was still a student and Laura Ricciardi was a lawyer by day, this was her sort of side hustle. They had never made a movie before. They were there with their handheld camcorder and we looked at them and we said, you know what guys, that’s cool, good luck to you, and we figured we would never hear from them again.

And for a while we didn’t, that was 2010. The years go by, 2011, 2012, 2013, 2014, 2015, right, and somewhere in there Netflix is invented by the way. They call us in 2015 and they say well, Netflix has picked up our show, turned it into a 10-hour series, it’s going to be released around the globe. And we were still like well, Netflix, is kind of new, nobody really knows what this is, that’s great, congratulations, but maybe nobody will watch it, right, who knows what’s going to happen.

So December 18, 2015 rolls around, the day it’s released. It’s released and goes viral. I mean it goes global, right, within the first two weeks 20 million people watched the show and that’s just in the United States alone. And all of a sudden our phones are ringing off the hook, our DMs are filled with messages, our email is flooded, people are showing at our office, I mean it’s absolutely insane, the letters are coming in through the mail and the world is going crazy. Reporters are calling from across the globe, New Zealand, UK, US and the whole time, the whole time I am just sitting there looking at the TV screen going oh my God, why didn’t I brush my hair for that interview. It was completely unexpected, completely unforeseen.

But my God, what a blessing it’s been for Brendan, because Brendan, like so many of our clients was a forgotten person for a decade. And suddenly the show comes out, it tells his story, shouts it from the rooftops. People around the globe hear it and understand it and empathize with it and are moved by it and are bothered by it, and they start tweeting and posting on Facebook and talking to their neighbors and writing to their lawmakers and suddenly the world is saying Brendan Dassey’s name. It’s an incredible thing.

And you know what else Dan, you know what else people did, they started writing to him; to this day Brendan gets between five and ten letters every day.

Dan Linna: Wow.

Laura Nirider: From all across the globe. He has a notebook where he keeps a list of every city where he has received a letter from and it’s the six populated continents, it’s incredible. He keeps these letters from well-wishers and he writes back to people as much as he can. Those letters give him hope. This is a kid who never had many friends before all this happened and now he has got friends across the globe, so those letters, they sustain him and that frankly is what sustains us.

Dan Linna: Yeah, it is such an interesting story just as far as the impact on your specific client Brendan, but then also the larger impact, and I mean this is starting to get into the specific topic I would like us to delve into a little bit here, because I think it’s interesting that in the legal industry we are a bit reluctant to seek out media, we are reluctant to use social media.

It’s interesting in private practice I would frequently hear people talk about someone who might be successful in their practice and I think people were divided into a couple of different buckets sometimes about, you would hear people say like oh well, so-and-so is good at marketing and it’s like well, actually what’s wrong with that, that actually is part of the description. I mean if people don’t know what we do.

Laura Nirider: No doubt about it, business of law, right?

Dan Linna: Sure, sure and then part of what you are talking about too is it’s not just people knowing who you are and what you are doing, but using it to improve your representation of your client, but then also promote the change you want to see in the world, justice in the world.

(00:15:00)

Laura Nirider: Exactly, right, no, that’s exactly right. I mean there is a sort of allergy in the profession to media and to publicity. It’s something I think about all the time, right, because of course lawyers have this ethos and of course ethical obligations around confidentiality, discretion, trustworthiness, all of these things and those are core values of the profession. But there is a moment that we are in now, especially for people who don’t have the ability to access media, people who don’t have their own PR team or clients who don’t have their own PR team, we are in a moment now where people are paying attention to these cases like never before and they are able to join a participatory conversation about things they see and perceive to be injustice.

And more than that, they want to get involved, they want to make change, it’s incredible. Millions of people around the globe have participated in one way or another in our campaign to free Brendan Dassey. And so it’s an incredible thing from a lawyering perspective, we have the sort of traditional ethos of discretion, of tightlipped-ness and certainly in many, many cases that we handle, that’s the watchword, but in a situation like Brendan’s, a bit of a unique case, but increasingly less unique as we move forward. As his lawyer you ask yourself, what do you do when the law doesn’t recognize what happened to Brendan as wrong but 50 million people around the globe do, right, as his advocate, what do you do with that, do you ignore it or do you try to use it? Are you bound in fact to use it for your client’s benefit and those are the questions that keep me up at night.

Daniel Linna: Yeah, yeah, yeah. Well, I mean what do you think on that point? I mean to what extent do you consider yourself obligated to keep communicating with people on social media, keep building your following so that you have this tool to help your clients and help the cause.

Laura Nirider: Well, it’s a delicate dance, right? I think about this every time I send out a tweet, every time I post on Instagram, I think about balancing my obligations to all of my clients in terms of confidentiality with the fact that people want to get behind these cases now. And it’s interesting, if you look back over the history of wrongful conviction cases, Brendan’s is not the first that has benefited from a sort of mass awareness of injustice, right?

There was the West Memphis Three case, which the CWC was also closely involved in, a very, very famous case that attracted a lot of celebrity involvements after a few documentaries were made about it; this is a 1993 triple murder from Arkansas that was made quite famous in a series of HBO documentaries. We were involved in that case too and that was pre social media. The three convicted defendants in the West Memphis Three case were exonerated in 2011, so right before the world changed.

And it’s interesting to me to have lived through that case and been part of that legal team, because I saw celebrities are flocking to that case, people around the world were sending postcards in, doing whatever we all did before social media to voice our support, sort of see the power of a mass movement here.

And now of course I am living it again in the age of social media and seeing people hunger information about Brendan, hunger for solutions, ways we can stop this from happening, and I do feel an obligation on the part of Brendan, while observing confidentiality, while acting with all the discretion that the profession demands, I do feel an obligation to keep people informed, keep people engaged around his case, around the issues.

I think in a way Center on Wrongful Convictions has become rather uniquely situated here. We have ridden this wave of social media and sort of digital new media interests in these cases in a way that almost nobody else has and we are feeling our way, but I hope doing it responsibly and doing it well.

Daniel Linna: Well, we have talked about this before, you have mentioned it and I agree completely about the possibility of getting more people engaged in this discussion about justice. I mean we are talking mostly in the criminal space, but even when you think about civil justice, the number of people who don’t have access to law, legal services, courts, I mean it’s really appalling here in the US and to what extent I guess can we use social media to get more people engaged in these broader discussions about what justice in society and the legal institutions, the rule of law?

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Laura Nirider: Oh, it’s vital. I mean those discussions are happening out there whether or not lawyers are involved, they are happening on social media, because it’s not just Brendan, it’s not just any of our individual clients who are experiencing these problems; people experience injustice, senses of powerlessness, senses that the system is broken in a thousand different ways in their life and they are out there on social media talking about it.

People have had bad experiences with the court system. People maybe have had bad experiences with law enforcement or defense attorneys. People who have felt that sense of powerlessness suddenly have a platform, all of us on the planet now have a platform on social media to talk about it and people are talking about it. It’s happening.

So the question is what do lawyers do about that, right, what do lawyers do about the fact that all of a sudden tens of thousands, hundreds of thousands of voices in there different ways are talking about injustice and fixing the system. We can either cling to these old ideals of well, I never go out in public, I never engage, or we can think about engaging in a responsible, strategic, thoughtful way that furthers the conversation and that makes real change.

Daniel Linna: Yeah. I think another piece of that that’s happening too is we are seeing, at least in the pockets I am looking at, a bit more transparency in the courts. And just one example of that is in Michigan, Chief Justice Bridget McCormack, she is active on Twitter and trying to — streaming more the arguments and things like that and I mean that’s just one example of ways in which we can invite more people in to learn about the law and our justice systems, things like that.

Laura Nirider: Well, it’s interesting you bring her up, because of course she before she was on the high court in Michigan, her early life was at the Michigan Innocence Project, right, so she did exactly the same kind of work that we do here at the Center on Wrongful Convictions, just at the University of Michigan School of Law.

There is something about this work in particular, because the stories that come out of it are so incredible, that lends itself to thinking broadly I think about engaging with the media, and yes, Justice McCormack has done a tremendous job of translating that awareness of engaging with people, telling stories, being responsible, being transparent and being communicative. She has translated that brilliantly to the judiciary.

Daniel Linna: Yeah. Well, so we have been mostly talking about access to justice and wrongful convictions, but you did spend some time working as a commercial litigator at Sidley Austin and just even based on that experience and your other connections to private legal practice, what would you think are the benefits or the ways in which lawyers at big law firms should be thinking about how they might make effective use of social media?

Laura Nirider: Yeah, it’s a very good question, right? I mean a lot of folks at big law firms have clients, big corporate clients who have their own PR team, their own marketing team, so people who are thinking about social media and the need to respond independently. I think that lawyers need to be intimately involved in those conversations, particularly in high profile cases.

Think about if the Enron case happened today, right, I mean you have got Enron’s PR team, but you also need to be — I think lawyers need to be engaging in that message, because if that case happened today, you would have millions of people on Instagram and on Twitter talking about your clients, probably trashing your client, right?

Daniel Linna: Yeah.

Laura Nirider: And does it become in that context part of a lawyer’s job to think about that, to work with the PR team to manage those conversations as best you can as a method of advocacy for your client. I mean bear in mind, of course in the criminal space we know that about 95% of cases result in guilty pleas — are resolved by guilty plea, which is a huge problem and of course in the civil arena most cases are settled as well.

So those conversations, if Enron is getting dragged through the mud on social media or whatever client is getting dragged through the mud on social media, that’s going to influence your client’s willingness to settle or to plead guilty in the criminal context, just to end those conversations, to sort of staunch the bleeding.

The public face, the public conversations that are happening on social media, lawyers can’t ignore them. We have to figure out how to engage with them and in some cases I think we have an obligation to.

Daniel Linna: Yeah. Well, I would like to talk with you a little bit about how we can in law schools train students to use social media effectively. I also want to chat a little bit about your new podcast with Steve Drizin and then also about law and technology and how that might help in the wrongful convictions space and hopefully preventing wrongful convictions from occurring, but before we do that, before we continue our interview with Laura Nirider, we are going to take a quick break to hear a message from our sponsor.

(00:25:12)

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[Music]

Daniel Linna: And we’re back. Thank you for joining us. We’re with Laura Nirider, who you may know from the Netflix series, ‘Making a Murderer’ and her new podcast series ‘Wrongful Conviction: False Confessions’.

Laura, before the break we were talking about the benefits of lawyers making good use of social media. I mean, how might we in law schools train students to use social media effectively?

Laura Nirider: Well, I have a feeling that our students can probably train us, how to use social media effectively, right. I mean, this generation now, the students that we’re just starting to see are the students who really grew up immersed in the space.

So I think it’s a two-way street. I’ve learned a lot from my students frankly, as I’ve navigated first Twitter and now Instagram. It’s easy I think for folks to write off at first, people who didn’t grow up in the age of social media, but they are incredibly potent tools.

So I would actually sort of pushback on that and say, you know what, it’s a two-way conversation. We can learn from our students the ins and outs of how social media worked, how to spread a message, how to hash tag, how to ads, all those things.

I think what we can teach them in return is the ethos of leadership, that I hope they carry into their professions, whatever type of lawyer they may end up doing.

The idea that, yeah, lawyers have an obligation to participate in these conversations that are happening out there whether they’re about criminal justice, civil injustice, access to justice, the law in general, right, whatever it may be legal institutions.

Those conversations are happening and lawyers need to be a part of some. It’s part of being a leader, it’s part of being a forward thinker. So that’s what I think we can impart to our students and then sit down and let them show us what an Instagram story is.

Daniel Linna: Yeah, I mean, so maybe it’s less, thinking about training the law students and maybe it has more to do with getting our colleagues to see the potential value and many of our colleagues actually are using social media and finding a way.

Laura Nirider: Yes, increasingly so, yes. So I think that’s important and from the people that I follow at least on Twitter I can see a huge benefit from that. These fascinating conversations that are happening online, people are getting a lot of engagements from other people in the profession. I think that’s wonderful.

So I think for those who have joined it, it’s been a positive experience. We just need more people to take the plunge. I was very skeptical at first, right. I only joined social media a few years ago. I was never a Facebook person, I’m still not on Facebook. I always sort of thought like, well, that’s sort of self-absorbed, even just posting a bunch of photos whatever, even though that’s like how the world works now.

So I’ve never been on Facebook. So my introduction in social media was first Twitter and now I’m building a following on Instagram, which is it’s a whole — a whole another level of new ways to think about communication. But I’ve worked a lot with social media specialists across the country and this is where the conversations are happening, right, and we can either say, well, I’ve never done that before so I’m not going to participate or we can do it. Take the plunge, listen to the conversations. Learn how these conversations are being said now, because it’s the future, it’s here whether we like it or not.

Daniel Linna: Yeah, yeah. Well, I think the other thing that we sometimes don’t give enough credit for these other mediums, well, you talked about leadership and how important that is, but the communication and I think sometimes the way we do things, sometimes in classes or even when we’re all practicing we tend to think that people are going to give us their undivided attention for a really long time.

(00:30:06)

And thinking about how to effectively, clearly get people’s attention and make it clear why — well, like even when you’re making an argument to a judge, right, sometimes we think like, oh well, I’ve got a 15-minute hearing or this or that, and when you start practicing, you learn that you better be really — like if you don’t have the judge’s attention within 15-20 seconds or something like that —

Laura Nirider: Exactly, fall over.

Daniel Linna: Yeah.

Laura Nirider: Fall over, slink out the backdoor.

Daniel Linna: Yeah. Well, and so thinking about how to communicate effectively on social media and it has nothing to do with declining attention time, I don’t think, maybe something, right. But I think oftentimes we don’t think about how to communicate that way in the work that we do as lawyers and it can help us improve our communication there as well.

Laura Nirider: Well, there’s no doubt about it. I mean there’s nothing like staring down the barrel of 280 characters to teach you how to be concise, right?

Daniel Linna: Yeah, yeah, exactly.

Laura Nirider: I mean, which is true. I struggled greatly with that at first, and I’m sure I have a lot of improvement yet to do, but there’s a real challenge there, right. I’m used to writing legal briefs. I’m used to writing introductory paragraphs, I am used to writing all these things, now it’s just boom, make your points, and I like to think that’s honed actually my thinking, my ability to deliver a message.

Instagram is it’s whole new thing, right. This is something I just joined, it’s not even a year ago and the medium of course is visual and that’s going to surpass Twitter. It will overtake Twitter. So if it hasn’t already in terms of people who are involved and to the influence that it has on the daily conversations that people are having.

So they are translating those 280 character tweets into a visual medium is its own challenge. But honestly it’s fun. It’s a fun channel and the results that I see from engagement, from people who are willing to continue this conversation and work with us to make change in the system, it’s incredibly valuable.

Daniel Linna: Just shift gears, let’s second here and then I want to talk about law and technology in this space, but you started a podcast series with Steve Drizin, our colleague at Northwestern, ‘Wrongful Conviction: False Confessions’, how did that come about?

Laura Nirider: Well, that came about of course Steve and I — first Steve and now me as well, we have a special expertise in the problem of false confessions. We are two of the lawyers in the country with the greatest amount of experience and expertise in this particular strange little, fascinating little problem, and over the years we’ve accumulated a great deal, a great number of videos from real interrogations where you can watch a person who has been exonerated, right, a definitely innocent person be questioned until they break and confess to a crime they didn’t commit. Usually a very, very serious crime.

So we have this incredible library of videos, different cases that we’ve worked on, different cases that we’ve consulted on, these videos come to us all different ways and we just thought, you know what, the world was lit on fire by ‘Making a Murderer’. By seeing what happened to Brendan, I’ve traveled the globe, Dan, talking about false confessions after ‘Making a Murderer’. Everywhere I go, right, Australia, New Zealand, UK, South America, Europe, Denmark, everywhere around the US, people say, I can’t believe that’s legal. How is that legal, how is that allowed, right? And I just kept thinking to myself, God you guys, I love that you’re feeling this for Brendan, those are the right instincts, right. But it happens all the time. It’s not just Brendan, it’s not just a Wisconsin thing, right, this is a problem around the United States and really around the globe.

The episode we’re dropping this week is a story from New Zealand, that is remarkably similar to Brendan’s story. So that’s how the idea for the podcast was born. This idea that if this case caught people’s imagination, made them feel fired up, made them want to get involved, we have plenty more stories like that that need to be told.

People need to understand this isn’t just one locality’s problem, it’s a huge problem worldwide that needs to be fixed.

Daniel Linna: Yeah, well, one of the things I’d like to chat about is how we might use innovation and technology in this space and we’ve talked about this a little bit before – maybe there’s ways that technology could be used to — if you’re spending lots of time reviewing these videos, false confessions and audio recordings, perhaps you received this deluge of, I think you said 3,500 letters a year, might there be ways to use technology to help with that. To what extent will capturing data and data analytics start impacting future practice in this space?

I mean, I don’t know, I mean, what are your pain points? Where do you think some of the things that we’re doing in connection with our law and technology initiative here at Northwestern for example, how might some of those things help you in the stuff that you’re doing as a lawyer in this space?

Laura Nirider: Well, I think analytics are — that’s something I use a lot in the social media space, right. I love finding out who cares about these issues, who’s benefiting from these conversations, who’s leading these conversations.

(00:35:01)

I think that’s all — that’s where I spend most of my time with analytics right now. It’s plumbing my social media accounts and related social media account, but it’s interesting, right, I mean, yes, we talked about how technology can be used in the wrongful conviction space and I am sure, I am quite sure that there are many, many ways to do that but it’s interesting in this space, and I think you have sensed this when we have talked about it before, there is for me a sort of mental hurdle to get over, which is, these cases of just like profound injustice usually happen when a system created my clients like a cog on a conveyor belt, right.

When there was not enough humanity brought to the system, and so the idea of sort of using tech to seek further justice I am quite sure that there are ways to do that, but there’s an interesting sort of discord there in my mind that I think needs to be plumbed and figured out because it’s sort of like you feel like you are making a system less human when in fact it’s already terribly inhumane. That said, right, we need good data, we need good data about how many people are being interrogated, we need like you started this conversation out, we need the information about how often wrongful convictions happen. We need information about the false confession rate. We need information about eyewitness misidentification rate, and on and on and on, right, that’s just in the small wrongful conviction context versus the whole criminal justice context. So it’s an interesting line to walk, right, because there’s a sense of inhumanity that pervades the criminal justice system.

The other things I think about a lot, vis-à-vis tech in the space. My husband is a general counsel, and so he does — he happens to work at a business that has a high volume of litigation that it’s involved in, and I can see very clearly in that context how data and tech looking back in his company’s history of resolving cases how that would guide him in resolving future cases, I can see that very clearly. But when I try to apply that thinking to my space I think, well, the data that we have to the extent we have it I thought the functioning of the criminal justice system is not data that I want to replicate or learn from in any way. It’s data that I want to change, right. I mean, that the criminal justice system has a deep history of systemic racism, systemic inequality, problems as you have said with access to justice, these are not data points I want to learn from and duplicate. These are problems I want to erase.

So that’s an interest, so, I say these things just because it’s two tweaks in my mind about the conversation around law and tech, that said we need data, we need to know what’s happening because you can’t really make change until you first know what things look like.

So those are sort of my unformed paths I guess about law and tech in the space. There’s interesting important conversations I have with a couple of maybe cultural adaptations to recognize that this is a space already saturated with history we don’t want to repeat and a deep sense of inhumanity.

Daniel Linna: Yeah, well, I think those are really important concerns and they come up all over in this space and so thinking about how can we use, improve processes or design thinking and then use technology in ways that would allow the system to be more humane, to allow humans to do the things where the greatest value is added.

I think one of the things that when we talk considered pain points before this idea of having the review hours of videos and audio recordings and just trying to think about, well, what if someone is tasked with doing that, what if — could you create tools that could help notice things like body posture, or particular questions that are asked, things like that that might make it easier to make sure some thing is not missed or to focus on something, or I would guess there are times when someone is forced to file a motion in this space when there just simply isn’t enough time to review the videos like you would like for example, and maybe there’s a way technology can help with a task like that even perhaps.

Laura Nirider: Yeah, it may be, it’s interesting because I think what we are really circling around is the fact that there are ways tech can no doubt help streamline some of these processes, but it’s also pushing against this cultural amongst the best defense circles right, leading defense attorneys. I think there’s a cultural resistance to that idea because, again, the clients — your clients have been so dehumanized by the system. I would feel sort of a very acute paying of conscience if I didn’t sit down and watch those videos myself.

(00:39:54)

But though it’s an interesting thing to think about because you are quite right, but there is a cultural bridge there, a dialogue to have about how to make that work in a way that comports with what we sort of tell ourselves our lawyering obligations are.

Daniel Linna: Yeah, well, and maybe it wouldn’t replace like actually watching, it would be like kind of like spellcheck, right, like word puts a little squiggly line under a word and says, hey, you should take another look at this or something.

Laura Nirider: I have certainly found motions where I say, you know what, in these interrogation videos the client denies having done this 650 times before confessing, right, I mean, those kinds of points, not every case but when you can make those kinds of data-driven points, that’s persuasive, right, it really is.

Daniel Linna: Yeah, yeah, well we should keep talking about that, but I think though another thing then related to this is like thinking about all this great work that you are doing once the problem has already happened, the wrongful conviction has already happened, I mean, what kind of things can we be doing, I mean, you are advocating where you have people who are in positions of power to make change, what kind of things need to be done to prevent wrongful convictions all together, whether it’s changes in the design of systems or, well, where do you think that that — and that’s a really broad question that kind of like goes to some people’s life’s work but —

Laura Nirider: Yeah, it does — it does but it’s the right question to ask, right, because we can tell these stories, we can represent our individual clients, but if we don’t learn from them and make change, that’s the whole point of everything that it is we are doing with representing our clients. With housing this work at a law school where people think deeply about the legal system, right, and certainly we are talking about it on social media too.

So our center, I mean, Steve in particular, we have been very focused on driving reform on actually creating changes in the law that flow from the sort of global interest suddenly in wrongful convictions and criminal justice reform. So we have been involved in efforts in two states, successful efforts in two states, Illinois and California, to require lawyers for kids — certain kids at least in the interrogation room. These laws are brand-new, they are post ‘Making a Murderer’.

In at least one of the two states they were inspired by ‘Making a Murderer’ because parents they don’t realize it’s only in about 13 or 14 states that police are required to notify parents before questioning their children. In most states there’s no requirement like that at all and as a mom myself I find that deeply disturbing, not to mention as a lawyer. So we have been working on that in two states.

Another huge reform that we’ve been working on and many, many others as well is the simple requirement that interrogations are recorded electronically, videotaped. When I started doing this work about 10 or 15 years ago not many states required it maybe five or ten, right, now that number is up to 26 due to our advocacy and the advocacy of many, many partners around the country, Innocence Project, private law firms, Jenner & Block led the way on this actually, and a lot of partners like that, but still only 26 states require interrogations to be recorded, which obviously means that 24 states don’t require this.

So in 24 states still the kinds of things that shocked the world when they saw them happening on ‘Making a Murderer’ or the kinds of things that we talk about in our podcast when we play our interrogation videos for people, tell people the stories of these cases. In 24 states we have no record. Still the door to the interrogation room remains closed, right. So that’s a huge push there as well as simply for transparency.

And then there’s other exciting chains in New York. In the last six months there was a bill introduced to ban deception in the interrogation room. Most people don’t know that it is perfectly legal for police to lie without the evidence inside the interrogation room, so they can say things like we found your DNA at the scene, we found your fingerprints on the gun, even if that’s not true, right, and use that as a pressure-point to secure a confession.

New York is the first State where a bill to ban that has been introduced and that was inspired directly by the Netflix series when they see us about the Central Park Jogger case and the social media uprising that followed that series.

So it’s another interesting and perfect example of how this groundswell of outrage that you see on social media of reaction, of empathy, of wanting to get involved can lead directly to change.

Daniel Linna: Well, what would you say to people who are listening and they say, I want to contribute — we have a lot of lawyers who are listening to this show and they want to contribute to seeing some of these changes. I think an example I see in the law and technology space is that there’s a lot of concern about the ways in which algorithms are being used in the criminal justice system and there was a lot of outrage about the 00:44:56, for example in Wisconsin which I understand on one hand, but then on the other hand it’s like most of the people who are outraged are in a position to have influenced to say, well, let’s change the rules, let’s change the rules of criminal procedure, let’s require that it can’t be done this way, but yet I haven’t seen a lot of mobilization to do that.

(00:45:15)

A little bit different in the space, you’re talking about there are a lot of other people you’d have to engage and get them mobilized to change. But I mean what have we learned like, what are the most effective things that people could be doing that you think would be most likely to cause change to happen?

Laura Nirider: Yeah, well, there’s any number of things, right. I mean, if you’re interested in this kind of work and these kinds of stories, there are a thousand different ways you can educate yourself about wrongful convictions, about criminal justice reform or whatever the thing it is you think in the legal system needs to be changed, right.

There are books, there are films, there are documentary series, so get out there and get educated, and once you’ve done that, get on social media and see who’s talking about it because it bothers you, I guarantee it’s bothered others. And those conversations are at the beginning can be at least the beginning of real movements.

You build a following on social media, you build a conversation on social media, you get organizations who are active in whatever space it is you care about to participate in those conversations, to add value to those conversations, pretty soon you’ve got a real coalition on your hands of people who care about your issue, who want to make change around your issue.

And then you’ve got something to work with, you’ve got a huge team I hope, a growing team of people who will keep the conversation happening, who won’t let it die who have networks of their own that they can bring to the table, that’s how every single one of these movements starts. It’s just a question of going out there and getting engaged.

Daniel Linna: Laura, it’s been great talking with you. Can you tell our listeners if they want to go tune into your podcast with Steve Drizin, how can they find that?

Laura Nirider: Sure, our podcast Wrongful Conviction: False Confessions is available pretty much everywhere you get your podcasts, Apple, Spotify, iHeart, everywhere else, so just Google us and you’ll be sure to find us. Let me know what you think by the way. I am on Twitter @LauraNirider and I am on Instagram @LauraNirider. So I’d love to hear from people.

Daniel Linna: Yeah, I’ve been listening, I love the podcast, I love all the work that you and Steve are doing. I mean, thank you for all that you’re doing and thank you for joining us on Law Technology Now.

Laura Nirider: Well, right back at you. This is a great podcast too. Thanks so much for having me on.

Daniel Linna: Thank you, Laura. And thank you to our listeners. This has been another edition of Law Technology Now on the Legal Talk Network. Please take a minute to subscribe and rate us in Apple Podcasts and Google Podcasts, and you can find me on Twitter @DanLinna. Please follow me, re-tweet links to this episode and join the legal innovation and technology discussion online, and join us next time for another edition of Law Technology Now.

I’m Dan Linna, signing off.

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