10 Commandments for Better Reporting on American Criminal Trials

In December 2019, I was cordially invited by the German media-criticism website Übermedien to write a critique of how German journalists cover American criminal court cases. I decided to focus on two German documentaries about Germans in prison for murder in the United States. The result was published here (g) on January 23. I’ve translated that piece into English and made a few edits and updates. The result is below. Enjoy!

10 Commandments for Better Reporting on American Criminal Trials

by Andrew Hammel

German journalists, it would seem, are obsessed with American criminal cases. Hardly a week goes by without a report in the German media from an American courtroom or prison.

But no other case has exerted such a lasting fascination as that of Jens Söring. In 1985 he killed Derek and Nancy Haysom, the parents of his then-girlfriend, Elizabeth Haysom. Söring confessed to the crime and was sentenced to life imprisonment in Virginia in 1990. In November 2019 Söring was unexpectedly released on probation. He wasn’t pardoned: The Virginia Board of Parole expressly stressed Sörings guilt. Nevertheless, on his arrival in Germany on 17 December 2019, Söring was celebrated by many as a victim of a miscarriage of justice. This even though all of his many appeals had failed, and his claims of innocence are based largely on misrepresentations and exaggerations. Many German journalists who reported on the Söring case long ago threw overboard any notion of neutrality. A prime example of this is the 2016 documentary released under the English title Killing for Love, by German journalists Markus Vetter and Karin Steinberger. The film more or less explicitly adopts Söring’s version of events, which is that he confessed to the murders of Elizabeth Haysom’s parents to protect Elizabeth (whom he was in love with at the time), who was the real killer. The jury didn’t believe Söring’s new story, and sentenced him to life in Virginia in 1990.

But Steinberger and Vetter are not alone in their fascination with American criminal cases, especially when those cases involve suspects with German roots. In 2004, Peter F. Müller directed the film Todesstrafe für eine Lüge (Death Penalty for a Lie), which can be watched online here (g, unfortunately there is no English version). The film revolves around Dieter Riechmann, a German who was convicted of killing his girlfriend in Miami Beach in 1987. Riechmann’s death sentence was commuted to life imprisonment in 2010, and he remains in prison in Florida. Riechmann was convicted in part based on the contradictory and inconsistent stories he told about the circumstances of the murder. He later claimed that he had misled the police because his girlfriend was killed by the other participant in a drug deal, and Riechmann had lied to the police to cover up his participation in the drug deal. The jury didn’t buy it.

These films are examples of an entire genre of German reporting: critiques of American criminal cases. These films display the typical weaknesses of true crime stories: the pressure to squeeze everything into an “innocent / guilty” scheme and to find (or invent) “dramatic moments”. As two German media critics note in this podcast (g), many American podcasts and documentaries suffer the same defects. But German media makers face an additional hurdle — they are reporting on a foreign legal system. And they are by no means always able to identify their own gaps in knowledge. As a result, the films convey a selective, misleading view of the dynamics, social environment and structure of the American criminal justice system.

I think it is high time for a correction. Here are the most common mistakes and misconceptions (from my point of view) in the form of a list of Commandments.

Commandment 1: Thou shalt never forget that a trial has taken place

Our German journalist has flown to Texas or Florida or Virginia, rented a car, driven to the prison, passed security, and is now sitting across from an inmate who is explaining why he is innocent.

But why is this person sitting on the other side of the glass?

In true crime documentaries, the imposition of a prison sentence or death penalty is the first chapter of an exciting whodunit. The main trial often occurred decades ago. We see it only in brief flashbacks– and then only to document supposed errors and shortcomings. These brief soundbites give no impression of the entire body of evidence that led the jury to find the accused guilty or of the lengthy investigation that brought to light the evidence necessary to do so.

But in the real world, the court decision is the last chapter of a very long and often very expensive story. First, the police investigate. If there’s enough evidence, the prosecutor will press charges. To do so, he must convince an independent panel (the grand jury) that there is an adequate initial suspicion (probable cause) against the accused. At this point, at the very latest, defendants who cannot afford a lawyer are provided with a public defender. Now a jury  must be selected for the main proceedings. Although over 90 percent of  American criminal proceedings are resolved by deals, we can safely disregard these cases; nobody makes movies or podcasts about such cases.

The selection of the jury is also a lengthy process. The judge summons a group of about 50 randomly selected citizens. A jury summons is not voluntary; serving on a jury is a duty. The members of this random group will now be interviewed in detail. Biased or otherwise unsuitable people are excluded until only twelve remain.

Then the main criminal trial begins. The presentation of evidence is regulated by a strict code of evidence. At the end of the trial, the jury receives detailed written instructions on the applicable law. All twelve jury members must unanimously find the accused guilty. The standard is beyond a reasonable doubt. This standard is often paraphrased for laypersons as follows: You should use the same level of care deciding the defendant’s guilt as you would about the most important decisions in your life – for example, buying property or choosing a spouse. Every accused person also has the right to file an appeal if he is convicted. A private lawyer or public defender will comb through the multi-volume verbatim court transcript to find possible legal errors. As in Germany, the defendant’s conviction only becomes technically “final” when this appeal is rejected.

As we see, by the time the defendant is convicted, dozens, if not hundreds of people have worked on the case. They have invested thousands of hours. Depending on complexity, the total cost of a trial and subsequent appeal can run to the millions of dollars. The purpose of this complex procedure is to keep the number of miscarriages of justice as low as possible.

And it succeeds. In the USA, as in Germany, wrong judgments are very rare; in US federal courts approximately six percent of  appeals succeed, in Germany it is three percent (g) of initial appeals and three percent of later motions to re-open a case (g). These results are a good sign: Both in Germany and in the USA, criminal proceedings are usually conducted in accordance with the law, and the right person is convicted. There will always be exceptions, but they remain exceptions.

Commandment 2: Thou shalt read the previous court decisions and take the judges’ work seriously

After a lawyer has filed a written appeal before an American appeals court, there is usually an oral hearing, in which several appeal judges ask the defense counsel and prosecutor ask pointed questions. The judges then publish an opinion discussing the factual and legal issues and either granting or denying a new trial. But even if the prisoner loses this initial appeal other remedies are also available: The prisoner can initiate a habeas corpus procedure, the equivalent of the German motion to re-open the case (Wiederaufnahmeverfahren). By this time, however, the prisoner no longer has a right to a free lawyer; whether in the USA or Germany, he must either write the appeal himself or pay a lawyer to do so.

All of these appeals will usually generate written court decisions. German journalists routinely dismiss these court decisions with a one brief sentence (“The appeals were all unsuccessful.”). They never explain why the courts rejected the appeals. This leaves the viewer ignorant and baffled. In Killing for Love, for example, Söring and his supporters claim that the trial judge was biased and his defense lawyers were incompetent. These are serious allegations, which obviously require investigation. But, as any viewer who is paying attention immediately wonders, the trial took place in 1990. Has no one addressed these allegations since then?

The film never answers this question. But there is an answer, and that answer is: Of course. As early as 1991, in the first of many appeal and habeas corpus proceedings, Söring claimed his trial judge was biased. The Virginia Court of Appeals analyzed the transcript of the trial and found no evidence of bias. Söring’s allegedly inadequate defense was also the main issue in appeals before both the Virginia and federal courts. Each time the conduct of Söring’s lawyers was examined and found to be competent. In 2000, for example, the Federal Court of Appeals for the Fourth Circuit examined the strategy of Söring’s defense counsel and found no errors. Even if there had been an error, the court ruled, it would have had no influence on the outcome of the proceedings, since Söring’s guilt was confirmed by “overwhelming evidence” (see Commandment 8). Söring filed at least four separate appeals. At least 15 state and federal judges have reviewed his case. Each of them, without exception, found Söring’s claims groundless – and explained exactly why.

All this is ignored in Killing for Love. The same applies to Death Penalty for a Lie. The years of trials and hearings, the debates, the decisions – all dismissed with a brief reference to unsuccessful appeals. You have to wonder why judges we bother to appoint judges and pay their salaries if their work is ignored.

Commandment 3: Thou shalt not believe everything a prisoner says

The overwhelming majority of American (and German) prisoners are guilty. However, many of them still object strenuously to this finding. Prisoners claim innocence for several reasons. A small minority is innocent, which of course should never be forgotten. Some are guilty, but have convinced themselves otherwise. Still others are guilty and know it, but also know that no one in the outside world cares much about guilty offenders. This is why they falsely profess their innocence. Yet they know merely asserting their innocence isn’t enough. To back up their claims, they deny long-proven facts, play down their role in joint crimes, construct conspiracy theories, and obsessively question every piece of evidence and testimony against them.

At first glance, a warning to be careful with claims of innocence from prison may seem superfluous. In Germany, after all, criminal defendants are not even required to testify under oath, since it is simply assumed (g) they will lie. But this healthy skepticism vanishes when a German journalist flies to the USA.

There are dozens of broadcasts and news stories in German-language media in which convicted criminals are interviewed in detail and without critical questioning. The centerpieces of the two documentaries under discussion here are long interviews with two convicted murders in which the interviewer doesn’t ask a single critical question. Fancy that: An interview with a murderer in which a journalist behaves less critically than in any interview with any random local politician.

I watch these interviews and think: “With four or five pointed questions, I could demolish these prisoners’ stories.” Actually, anybody could — even in the gently supportive context of a softball interview, the stories Jens Söring and Dieter Riechmann now rely on are often bizarre, and sometimes contradictory. But these weaknesses are never dealt with. The reason is obvious: Critical questions would damage the prisoner’s credibility, and he is, so to speak, the star of the show. The Manichean David-versus-Goliath scheme (innocent underdog against the almighty state) would become blurred. In the end, a critical perspective would serve the truth, but the truth rarely gains an audience of millions.

Commandment 4: Thou shalt not believe everything that a defense lawyer says

I was once a public defender in the USA. Defending the indigent is an honorable profession, if I do say so myself. When I was a defense lawyer, I gave interviews to journalists. I never knowingly lied, since doing so would have been a serious breach of my professional duties. But I also rarely told the full truth — usually because that also would have violated legal ethics.

American court proceedings are not cooperative, but rather adversarial. The goal of the prosecutor is to prove the guilt of the accused. The goal of the defender is to obtain an acquittal. Both sides are allowed to use any appropriate and fair means to achieve these goals. Thanks to this emphatically oppositional structure, the opponents (prosecutor and defense counsel) often present two starkly opposing versions of the facts and attack the other version head-on. At the end of the battle, according to the logic of the adversarial system, the truth will stand like a lone survivor on a smoke-wreathed battlefield. This is the “crucible of meaningful adversarial testing“, in the words of a landmark American court case”.

This adversarial structure gives rise to several notable side effects. The most important one for our purposes: An American criminal defense attorney will always tell only one side of the story. Even if he knows that his client is guilty, he will not, and may not, disclose this fact without the client’s consent. A defense attorney is not permitted to knowingly lie, but must do everything possible to play down incriminating facts and statements and draw attention to weaknesses in the state’s case. What he or she says may be relevant and interesting, but only as long as the journalist understands that it is only one side of the story. The same applies to the prosecutor, of course – but this reference is superfluous; German journalists always display a healthy journalistic skepticism when they talk to American prosecutors.

Commandment 5: Thou shalt report honestly and transparently about the motives of the people you’re reporting on and the conditions under which you’re reporting

When there is media interest in a case, the defense lawyer faces a delicate question: Should the accused talk to the press?

Clients often want to tell their side of the story and counter the prosecution’s “lies”. But an interview with a member of the press can easily go pear-shaped, depending on the client. The prisoner may tell a version of events which does not match his testimony at the trial. Or become enraged at critical questions and threaten the journalist. Or give voice to racist prejudices or hair-raising conspiracy theories. In one memorable case I know of, a defendant once said –  with his characteristically juicy diction: “The prosecutor’s a fucking liar. She says I shot the victims with a 9mm pistol. Bullshit! I blew those motherfuckers away with a .32 revolver!” Every defense lawyer in the USA can tell at least one story like this.

This is why many defense lawyers strongly advise their clients against interviews with journalists. But the defendant may absolutely insist on talking to the press regardless. Lawyers sometimes work out a compromise: The reporter can talk to the client, but is not allowed to ask questions about some topics, for example about the crime or the trial. Is it compatible with journalistic ethics to conduct interviews under such conditions? Probably. But in my view, the audience must always be informed of the conditions under which the interview took place. This is common in American documentaries: “We were allowed to talk to Mr. X, but his lawyer told us not to ask questions about the night of the murder.” Sometimes, on the other hand, the journalist advises the audience that no questions were off-limits.

I have never seen such an advisory in a German documentary about American criminal cases. Yet I think it likely that the interviews with Jens Söring and Dieter Riechmann were conducted under such conditions. If this is true, the viewers should have been informed. The same transparency requirement applies to partisan experts. The end credits of Killing for Love feature a banner which reports “A nationally known expert concluded there were two unknown men who left blood at the crime scene, with Jens Soering being eliminated as a contributor”. That’s only half-true. The “nationally known expert” was a partisan who was being paid $225 per hour by Söring’s lawyers. Independent experts, on the other hand, all reached the conclusion that DNA analysis and blood group typing do not rule out Söring’s presence at the crime scene. Likewise, in Death Penalty for a Lie, we hear from numerous forensics and ballistics experts questioning the evidence used against Dieter Riechmann at his trial. But we’re never told who paid these people for their time and expertise. The filmmakers? Riechmann’s lawyers? Or did the experts work pro bono publico?

In Germany, experts are usually appointed by the court, but in the USA they are almost always appointed by the parties. Once again, the oppositional, adversarial quality of American law comes to light. Should we assume that partisan experts lie for money? No. The answer to many forensic questions – When did the victim die? What does the pattern of bloodstains mean? What kind of knife was used? – is often unclear; two experts can come to opposing conclusions completely honestly, and often do. The conclusions of a paid, partisan expert witness are never the last word. It is legitimate to talk to these experts – but journalists must always make clear which side they’re on.

Commandment 6: Thou shalt understand the role of the actors in an American court case

Most German journalists have only a rough what an American jury is allowed to do. The reason is simple: There are no juries in Germany, only lay assessors, who virtually always vote with professional judges. In Germany, the judge is the focus of the courtroom; he or she literally leads the trial. In the USA, however, the judges’ role is like that of a referee: He must punish rule violations and resolve conflicts, but should not interrupt the flow of the game.

In every trial, the jury – and only the jury – decides the all-important question of guilt. The jury receives a detailed explanation of the relevant law and apply it to the facts of the case. The judge is permitted to question the jury verdict only in exceptional cases. Many German observers find the institution of the jury problematic, but it is firmly anchored in the American sense of justice.

Other important differences concern the role of the defendant. As in Germany, the defendant enjoys a right to refuse to give evidence. But if he does testify, he is not expected to lie and therefore exempt from taking an oath to tell the truth, as is the case in Germany. Rather, the defendant is treated as any other witness: He must take an oath and may be cross-examined. If the accused remains silent, the jury will not learn about any previous criminal offences. But if he testifies, the prosecution can tell the jury anything that bears on his credibility – including any convictions for fraud, perjury, theft.

However, a defense lawyer can only warn the client of the disadvantages of testifying: The accused has an absolute, inalienable right to testify before the court, no matter what his lawyer thinks. That’s why a smile came to my face when the narrator voice in Death Penalty for a Lie tells us that the defense attorney made a “crucial mistake” when he “called” Dieter Riechmann to the witness stand. Since Riechmann had many previous convictions in Germany – including one for a previous homicide – I would be surprised indeed if his lawyer hadn’t advised him not to testify. But Riechmann made the fateful decision to testify anyway. The jury learned of his shady past life as a pimp, playboy, and con man, and his credibility was severely damaged. But this catastrophe was caused only by Dieter Riechmann, not his lawyer.

Commandment 7: Thou shalt use common sense

In a report (g) in the German Bild tabloid about the release of Jens Söring we read: “The bloody sock print couldn’t be Söring’s either. It was too small.” Jens Söring did, in fact, leave a bloody sock print at the scene of the crime. A photo of the sock print was evidence in his trial, and the jury, all courtroom observers, and millions of television viewers could compare the sock print with a print of Söring’s foot.

Reading the sentence from the news report, you have to wonder why nobody noticed the difference between Söring’s footprint and the footprint at the crime scene. Why did the judge allow two completely different footprints to be presented as “comparable”? Didn’t Söring’s defense raise any objections? Were all parties to the proceedings blind – or bought? There’s an English proverb that says: “If it’s too good to be true, it probably is.” If it seems unbelievable that such a glaring error could go unnoticed, then one should indeed not believe it. Söring’s footprint was – of course – comparable to the sock print at the scene of the crime. The reader can easily confirm this by consulting images the famous sock print which are all over the Internet.

Common sense also helps with the documentary about Dieter Riechmann. Riechmanns’s lawyers located numerous people from the streets of Miami Beach who tell a different version of the murder than the prosecution relied on at trial. That’s no surprise: Riechmann’s supporters once offered $15,000 for exonerating evidence. How did they broadcast the offer? By mounting posters in Miami Beach’s drug district, where the murder took place. It should come as no surprise that even decades after the trial, an assortment of shady figures, eager for the $15,000 reward, have come forward with “new information” about the murder.

Calling these witnesses “questionable” hardly does justice to their glaring credibility issues. Also, even in the one-sided portrayal in the film, it’s obvious that many of the alternate stories conflict with each other. But none of these witnesses is confronted with a single critical question. Common sense does not forbid listening to the stories of drug dealers, drug addicts, armed robbers and prostitutes – it does, however, forbid broadcasting these tales without a single critical question or comment. Incidentally, common sense also dictates that people who have changed their version of a story several times – as Jens Söring and Dieter Riechmann have by their own account have done – should be distrusted.

Commandment 8: Thou shalt acknowledge that not all trial errors are important

What are appeals for? To ensure that every criminal case is perfect? No. The task of appeals courts is to ensure that the accused has had a sufficiently fair trial. A judgment will be overturned on appeal only in two circumstances: 1. There was a serious mistake that invalidates the very trial itself (for example, a judge who was an impostor); or 2. There was an error which probably led to the wrong outcome. In both the USA and Germany, errors in these two categories inevitably lead to a reversal. But there is a third category of errors which is much more common: Errors which did not lead the trial to the incorrect result; so-called harmless errors.

Every legal system has harmless-error rules, because resources are scarce and criminal trials are expensive and time-consuming. The vast majority of errors claimed by defendants are indeed harmless, which is why — as we have seen above — the overwhelming majority of appeals fail. The appeals are denied not because the trial was flawless, but because it did not produce the wrong result.

The overwhelming majority of German journalists who report on American criminal trials do not seem to have grasped these principles. Again and again, they raise supposed “errors”, without mentioning that after a thorough examination (see Commandment 2) an appeals court found that either no error occurred, or that it was harmless. And they explain exactly why.

Commandment 9: Thou shalt not ignore demographic and socio-cultural realities

I once read a report on West German Public Radio from a journalist who visited her pen pal on death row in Florida. The reporter observed that the pen pal was one of the “few” white death row inmates in Florida. No doubt thousands of Germans read this report and thought: “Yep, that’s how it is with the Yanks. Only poor black folks end up in behind bars.” But this isn’t true. In fact Florida’s death currently houses 203 white and 124 black people. “OK,” counters the German critic of American criminal justice, “but still, blacks make up only 13 percent of the population, but 37 percent of people on death row in Florida. This is a clear case of discrimination!”

Not necessarily. The reason for this is as regrettable as it is undisputed: Some violent crimes are committed much more frequently by black Americans than by members of other groups. In the USA, statistics on the ethnicity of defendants and convicts are meticulously collected to uncover evidence of discrimination. These statistics show that black people commit around half of all homicides in the USA (over 90 percent of the victims are also black). A meticulous study of crime statistics from 1980 to 2008 found the frequency of homicides by blacks to be around eight times higher than by whites, serious robberies about ten to twelve times higher, and sexual offenses about six to eight times higher. A New York Times investigation revealed that about 75 percent of all mass shootings (shootings with at least four victims) were committed by black people. The cause was usually some combination of arguments among party guests, insults, and/or gang crime.

There are many factors that explain these discrepancies – but the differences are so great that nobody doubts the existence of this basic phenomenon. Of course, it is by no means the case that black Americans are generally more criminal than other groups – the overwhelming majority of black Americans has no criminal record. But it does mean that there is a specific criminal subculture in parts of the black community which leads to these disproportionate crime rates.

The same applies in Germany, where foreigners and people of non-German ancestry are clearly overrepresented in prisons. The reasons are probably similar in both cases: a mixture of discrimination, poor educational opportunities, gang activity, and a violence-glorifying  macho subculture. In the USA, of course, the omnipresence of firearms is an added factor.

Caution is also needed when it comes to police shootings involving black people. Some police murders, such as those of Laquan McDonald or Walter Scott, rightly provoked outrage. German journalists — of course — picked up on the supposed wave of police shootings of black Americans. The German broadsheet Die Zeit reported (g) in 2016, under the heading “Police Violence against Black People reaches a Record Level”:

A total of 1,134 people were shot dead by police officers in the USA last year. Of these, 577 were white, 300 black and 193 of Hispanic descent. Black and Hispanic people together make up less than 38 percent of the total US population.

But as we have seen, there are significant differences in crime rates between black and white Americans. As a result, young black men are much more frequently involved in dangerous confrontations with police officers. When this is taken into account, the differences between whites and blacks shot by police officers largely disappear, as academic studies by Roland Fryer and others have shown. An overview of literature controlling for the increased likelihood of confrontations between blacks and police  concluded that black citizens were less likely than whites to be shot and killed by police.

It is undeniable that there is discrimination in the American criminal justice system. A recent study found, for instance, that black defendants receive federal prison sentences 19.1 percent longer than comparable white defendants. This is a serious problem that needs to be addressed – but not the seemingly blatant disparity that superficial comparisons suggest.

Commandment 10: Thou shalt always ask thyself: Would I report on a German criminal case this way?

Would I broadcast the allegations and accusations of a convicted murderer without any critical scrutiny?

Would I not even mention the detailed decisions of the Higher Regional Court or the Federal Court of Justice, or dismiss them in a short phrase?

Would I broadcast long excerpts of interviews with defense lawyers without also taking due account of statements from the prosecutor’s office?

Would I draw conclusions for the entire German criminal justice system on the basis of a single case?

Would I brand the entire German criminal justice system as racist because foreigners and people with non-German roots make up the majority of all German prisoners?

The questions asked above are based on an implicit assumption: The American and German criminal justice systems are by and large equally reliable, and therefore both systems should not approached not uncritically, but with a certain degree of respect.

Educated Germans are generally proud of the Basic Law and of the German judiciary. This pride is justified. German courts generally arrive at just verdicts. But the same is true in America. The punishments are much harsher in the USA than in Germany (this also helps explain the aversion of educated Germans to the American criminal justice system), but they almost always target the right person.

Many Germans will bridle at this statement: After all, German newspaper readers and television viewers “know” the criminal justice system of the USA exclusively from alleged and real miscarriages of justice. Yet this only makes them as well-informed as an American who studies German criminal justice based only on infamous miscarriages of justice such as Gustl Mollath (g), Harry Wörz (g), or Rudolf Rupp (g).

The result is a distorted perception, which unfortunately is sometimes shared by German politicians. One recalls former Justice Minister Hertha Däubler-Gmelin, who famously called American justice “lousy”. This bias also prevails in the executive suites of some German media companies. Only this can explain how Claas Relotius, progenitor of the largest German journalistic forgery scandal since the Hitler diaries, got away with his preposterous tales about the USA (including one about an American woman who travels from state to state to witness executions).

America is not a developing country with a corrupt, immature and drastically underfunded criminal justice system whose verdicts cannot be relied upon. There is a need for reform and much room for improvement in the USA, and millions of Americans from across the political spectrum are working now to expose weaknesses in the criminal justice system and implement fundamental change. German journalists could contribute to similar tendencies in Germany — if only they showed as much reform zeal at home as they do in the USA.