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How a podcast held up a murder trial

The Teacher’s Pet, a wildly popular true crime podcast published by The Australian newspaper in 2018, has made legal history in Australia after being cited by a judge as part of the reason that a murder trial cannot take place this year. The sixteen episode series was hosted by investigative journalist Hedley Thomas and re-examined what was then a cold case: the unsolved disappearance of Lynette Dawson in 1982. Since the podcast’s release, Lynette’s husband Chris Dawson has been charged with her murder and pleaded not guilty in April 2019.

At the end of September, it was revealed that his defence team had attempted to secure a permanent stay in the trial, citing — among other factors — the podcast and the resulting “media storm.” Dawson’s lawyers argued that the defendant would face “considerable forensic disadvantages in advancing his defence,” with the podcast having been downloaded 28 million times before it was made “temporarily unavailable” for Australian listeners in April 2019. It was taken down then by The Australian after a request from the Office of the New South Wales Director of Public Prosecutions, which the newspaper said in a statement it was happy to comply with in the interest of Dawson receiving a fair trial.

Justice Elizabeth Fullerton, the judge assessing the possibility of the trial moving forward, has now decided to grant a temporary rather than a permanent stay. Functionally, this means that proceedings cannot start until June 2021. She cited the “unrestrained and clamorous” public debate about the case as the reason and explained that the delay was to allow “commentary” to abate before the trial began. Here’s a section of her summary that stood out to me:

Her Honour was left in no doubt that the adverse publicity in this case or, more accurately, the unrestrained and uncensored public commentary about Lynette Dawson’s suspected murder, is the most egregious example of media interference with a criminal trial process which this court has had to consider in deciding whether to take the extraordinary step of permanently staying a criminal prosecution.

This is the first time that a podcast has been involved in a legal argument in this way, Justice Fullerton confirmed, going on to warn that the popularity of true crime podcasting brought with it new responsibilities for journalists and publishers. While acknowledging the invaluable work reporters do in exposing fraud and corruption, she concluded: “The risk that an overzealous investigative journalist poses to a fair trial of a person who might ultimately be charged with an historic murder (or another historic criminal offence or offences) is self-evident.”

I’m not going to relitigate the whole “is it possible to make an ethical true crime podcast?” question here, since the topic has been visited a bunch in recent years, but this situation caught my attention because it ties together several key points about how podcasts, and especially true crime podcasts, function in 2020.

Firstly, there’s the way that podcasting’s norms and conventions transmit beyond national and legal boundaries. Listeners all over the world can hear shows made in America — including via translated versions — where strong legal protections for free speech extend to crime reporters and podcasters alike. Non-American audiences accustomed to the wide ranging detail and opinions expressed in productions from Wondery, Parcast, or Exactly Right, say, are likely to find their homegrown equivalents somewhat less “exciting” by comparison if creators have to reckon with more stringent contempt of court and sub judice laws. This becomes especially relevant when a podcast is trying to cover an ongoing case, or one where there are evolving legal proceedings. (For those interested in more detail on this specific issue, I found this journal article from 2008 about international differences in how the media can report crimes useful.)

Secondly, there is the general prestige that a high profile and critically acclaimed podcast can bring to a publisher nowadays. Within the true crime context, that reputational boost often comes as a result of a show that prompts law enforcement to reopen a dormant case. The most prominent example of this, of course, is the second season of In The Dark, which was instrumental in getting the case of Curtis Flowers reviewed by the US Supreme Court and ultimately helped secure his release from state custody. But ever since the first series of Serial led to new hearings for Adnan Syed (who remains in prison after the Supreme Court declined to hear his appeal), it’s become something of a badge of honour — a hallmark of good investigative journalism, if you will — if a true crime podcast is able to trigger actual legal proceedings.

In order to understand this better within the context of the Chris Dawson case, I reached out to Alan Sunderland, an Australian journalist and the director of the Organization of News Ombudsmen and Standards Editors. Over email, he gave me some context for the situation around The Teacher’s Pet. “The simple answer from an Australian perspective is that podcasts are no different to any other form of publication, in that they carry exactly the same legal risks about things like defamation, contempt of court and sub judice rules,” he said.

However, Sunderland continued, the difficulty for The Australian lies partly in the fact that when this podcast was released in 2018, the Lynette Dawson case was cold, so there were no ongoing proceedings to factor into the production. “I imagine the main legal considerations would have been defamation,” he said. “The main ethical considerations would have been accuracy (including a fair and reasonable representation of any court proceedings or investigations in the past) and providing a fair opportunity to respond in relation to any accusations made in the course of the podcast.” But as soon as Chris Dawson was charged, everything changed from a legal perspective.

This brings me onto the third theme to consider in relation to this case: the impossibility of controlling the open podcast ecosystem. Mostly, we think of that as a good thing, but it’s important to recognize that it does come with some legal baggage. “If a newspaper, for example, has a story on its website that might cause contempt of court then they can simply take it offline temporarily,” said Sunderland. “But a podcast on many official and unofficial external platforms can be difficult to remove completely.” Even though The Australian took the podcast off its website, stopped promoting it and did its best to remove it from podcatchers for Australian listeners, the newspaper can’t be sure that nobody will hear or refer to it again until the trial is over. As the New York Times is now finding with Caliphate, amending a popular podcast after its initial big bump of downloads isn’t easy, nor do those subsequent changes necessarily reach the same listeners as before.

In November 2018, host Hedley Thomas and producer Slade Gibson won the Gold Walkey, Australia’s highest journalism award, for The Teacher’s Pet podcast. When I emailed with Kellie Riordan, who until recently was the leader of ABC’s Audio Studios, about this story, she pointed to the award as an indication that the Australian media establishment saw nothing problematic about the podcast or its investigative techniques — quite the reverse. However, she did point out how rare the show’s situation now is: “The postponement of proceedings due to media coverage is pretty unusual – it rarely happens, so it’s significant.” Riordan also highlighted this legal analysis from 2018 to me, which examines the fair trial-free speech tensions under the Australian system (and others) and actually predicts the approach that Dawson’s defence has now used to postpone his trial.

Can true crime podcasting ever truly thrive in jurisdictions with strict contempt of court and sub judice rules? Writing from the UK, I suspect that in Australia, Britain, and elsewhere, at least some publishers who fear the risks will increasingly favour shows where there is very little chance that legal proceedings could intervene. That approach does likely forfeit the boost of publicity that new developments in a case can bring, but it does provide some measure of protection from the revenue losses of having to remove a podcast from circulation indefinitely.