William Phelps has done everything right since he was incarcerated in 2019. He’s a GED tutor. He’s taught multiple classes in prison like personal finance.

“It’s not like I’ve just been in here marking time, doing drugs. That’s not my scene and I don’t do that,” Phelps said.

Trouble arose when Phelps wore khaki shorts. He’s allowed to wear them. Indeed they’re part of the uniform. But these shorts were from the outside. “Free world clothing” is what authorities called it, shorts that any one else might have worn to garden or conduct a Zoom meeting. Even though they matched what the state of Alabama issues to men, these weren’t actually issued to him by the state.

Other men around him wear black shorts, blue shorts, clothing that doesn’t even attempt to match the state uniform. Still, an officer issued him a disciplinary report for low-level contraband for the shorts and some medication that belonged to him — Vitamin B — that someone had pulled the name label from.

On May 4, 2023, a hearing officer revoked 1080 days or 2.95 years of Phelps’ earned good time — Alabama calls it Correctional Incentive Time but it’s time earned off his sentence for good behavior — for the shorts.

“It’s like receiving an entirely new prison sentence,” Phelps said.

Phelps' disciplinary dustup happened during a sea change in how Alabama handles misconduct. Last year, a man named Austin Hall allegedly shot and killed a Bibb County, Alabama sheriff’s deputy after he had been released from custody. Because Alabama Department of Corrections (ADOC) had failed to claw back 2000 days of Hall’s earned good time for an escape attempt from a work release program, state officials blamed the incentive program for Hall’s alleged mistake — Alabama Attorney General Steve Marshall issued a statement assailing Alabama’s good time law, rather than the state’s own failure to rehabilitate him.

After that, changes came to the disciplinary system within Alabama prisons. First, just this January, ADOC updated its disciplinary Administrative Regulation for the first time in 20 years. To give the new rules special force and gild the disciplinary lily, Gov. Kay Ivey signed Executive Order 725 for the regulations’ implementation.

Then good time policies underwent legislative change.

Good time isn’t for everyone in Alabama’s prisons. In fact, it’s for very few — about 10 percent of Alabama’s approximately 26,000 confined souls are eligible — and even then the state is pretty picky about who gets it. The state divides eligible inmates into three classes. At one time, Class I inmates (the lowest risk calculation) could reduce their sentences by 75 days for every 30 days served. Class II inmates could shave 40 days for 30 days served and, for Class III, 20 days for 30 days served.

Now, because of the new law, prisoners earn less than half of what they would have before this year. For Phelps to earn back the 1080 days, it will take him 36 months rather than 14 months.

According to the updated regulation, it’s clear that Phelps could have lost “at least one day” of his good time for the disciplinary report; his maximum penalty should have been 30 days lost. The rules are also explicit about losing 1080 days; it’s reserved for high level violations and Phelps wasn’t even accused of that level of misconduct. And, because of the new law, now it’s even harder for Phelps to earn that back.

It looks like a case of picayune punitivity but lasting consequences await people who aren’t even incarcerated.
“You’re literally dramatically changing not only my life but my family’s life. I have a family, a daughter [who’s] waiting on me.” Phelps could be home as soon as November if his good time were restored.

Phelps’ story is important for two reasons. First, the way prison discipline is wielded impacts the length of someone’s sentence; that means the gross mismanagement of these facilities becomes a de facto adjudication of criminal penalties. A system as dysfunctional as the ADOC should have no say over how long a person remains in custody.

Not only can a person lose years of earned good time for a disciplinary action, but these reports affect parole decisions, which rarely go in favor of the person seeking release in Alabama regardless of their rehabilitative status. Besides, discipline is applied unevenly and illegally anyway. Considering that between 40-50 percent of all disciplinary reports are bogus, according to Daniel E. Manville, Clinical Professor of Law and Director of the Civil Rights Clinic at Michigan State University College of Law, it’s a scene fraught with unfairness.

Second, Phelps’ shorts expose the tension between policy and action in the Yellowhammer State. Lawmaking is little more than performance; it doesn’t even matter what the law requires because officials ignore it. Even if a member of the Alabama legislature supports the new good time law, it and the Administrative Regulation are clear that Phelps should have lost no more than 30 days for this minor — some might even say inconsequential — offense. Instead an official imposed 36 times that penalty.

And ADOC is doing nothing to bring this penalty into line with its own regulation and has declined to comment on the record.

The way officials are unbound by law and rules in the Yellowhammer State isn’t limited to what people are wearing. I’m hearing reports of illegal detention (holding people past their end of sentence date), imposing sentences that aren’t authorized by law, wrongly convicting defendants under an incorrect statute.

The law is designed to be a shield not a sword, but that’s exactly how Alabama officials use it. They swing the blade however they want, indifferent to where and how it lands.

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more.Her columns now appear regularly in The National Memo.

Lice so severe that even kerosene couldn’t kill them. Shoeless feet padding aimlessly. Gross malnourishment.

That’s how people described the Yellow Hammers, a semi-isolated colony of the ostracized and downtrodden in Illinois that developed during the Reconstruction Era.

The history of the Yellow Hammers is murky. As the legend goes, a Colonel Brodie of the Civil War — it doesn’t include a first name — came home to Alabama, the Yellowhammer State, and relocated to Wilmington, Illinois where he purchased several acres of wooded land and invited anyone from his home state to come live on it, creating essentially an encampment people called “Brodie’s Woods.” Those people who relocated to Wilmington from Alabama were impoverished, almost permanently, and made pariahs in the community as they huddled on Brodie’s land.

The pariahs’ poverty prevented those among them who were employed from purchasing their own equipment so they used company tools — when they were able to work — whose handles were painted yellow.

These stories, reported by a high school student, can’t be confirmed. First, the only nineteenth century colonel named Brodie was about 12 years old when the Civil War started. One William Brodie from Alabama fought in the Civil War but there’s no record of his being a colonel. A now defunct local Chicago newspaper, the Surburbanite Economist, reported in 1970 that an area of Wilmington, Illinois was known as Brodie’s Woods, but that’s one of very few verifiable mentions of the area.

The more likely story of the root of Yellowhammer is that a cavalry of soldiers from Huntsville went to Kentucky during the Civil War to aid Gen. Nathan Bedford Forrest’s — history will call him both a Grand Wizard of the Ku Klux Klan and an innovative warrior — Company A of the Confederate Army. They wore new sharp gray uniforms adorned with brilliant yellow trim. A Confederate soldier in tatters said they looked like the bird the yellowhammer, a type of woodpecker, which was made Alabama’s state bird in 1927. The Yellowhammers ended up becoming valuable team members; they supported several of Gen. Forrest’s victories, one of which frustrated Gen. Ulysses Grant’s Vicksburg Campaign.

That the history of the Yellow Hammers is so hard to pin down says quite a bit about the state today; tracing what really happens proves difficult. Even though Alabama media tries to cover events inside the prisons, the state of news in 2023 dictates that coverage isn’t as complete as anyone would like.

Just as the history of the Yellowhammers is unclear, the view into Alabama’s prisons is muddied by the Alabama Department of Corrections (ADOC) and its commitment to opacity. The officials who run that system do not like looksies. Early this year, ADOC stopped releasing the number of in-custody deaths on a monthly basis, ostensibly because there were so many that they either couldn’t keep up or didn’t want to be embarrassed by their inability to protect the state's wards.

Nevertheless, the reports of carnage that keep dripping out — two men were murdered on May 15, 2023, an additional pair added to a list of over 60 since January 1, 2023 — have contributed to a narrative that men and women in Alabama prison are incorrigible, even feral, when all they’re doing is adapting to the environment that the state has established for them.

The truth is that a good number of them are quite high-minded. When they staged a strike last fall, they didn’t even protest the squalid conditions they live in, which happen to be deplorable. Instead they sought policy reform on sentencing and parole which will ultimately benefit people beyond them.

Their strike demands were imminently reasonable, despite Gov. Kay Ivey’s disagreement. But the demands were really only part of the story of the strike. My sources tell me that — under the guidance of some dedicated leaders who I won’t name now — rival gangs and sworn enemies convened in good faith to hammer out what they needed to ask for. In that respect, they’re behaving better than many of us on the outside if they can display that type of comity. They came together despite the fact that they worry every day — along with family and friends — that they’ll be killed or starved. They’re fighting back non-violently. Bravely.

And even effectively. Because of the strike demands, lawmakers introduced two bills poised to pass the Alabama legislature. First is a bill that would mandate the right to attend one’s own parole hearings by video (they can’t attend these crucial proceedings now) and second is a bill that would allow people serving life sentences to petition to have their punishment reduced. Most prison work stoppages achieve nothing. This group of men and women convinced people to listen and act. Do not count these people out.

That doesn’t mean the wind is under their yellowhammer wings. Gov. Ivey just signed a bill into law that reforms the so-called “good time” statute by making it harder to earn time off one’s sentence because ADOC failed to take the good time of someone who attempted escape. Their resilience doesn’t mean they’re safe now or being treated justly. It’s just the opposite.

Alabama’s prison population reflects a lot of their yellowhammer history. Like woodpeckers, they’re tenacious fighters. Much like the Yellowhammer Cavalry in 1862, they're nimble, capable of putting up a few wins, but then ultimately forgotten.

And they aren't living much differently than Brodie’s Yellow Hammers. Some aren’t supplied shoes and therefore aren’t allowed in the chow hall. As I have reported before, the ADOC intentionally starves them when they assert their rights. They wander, often squatting in dorms where they’re not assigned because they want to avoid being raped. The violence doesn’t cease; I hear reports of outright beatings that all too often result in lost “good time” but no medical treatment. And they huddle, displaced and ostracized, in one of Alabama’s 15 state-sanctioned colonies of fear and panic.

But unlike the legend of Brodie’s Woods, these tales are true and verifiable. There’s no fiction here. It’s traceable. It tracks, all too well.

That’s why today The National Memo announces an unflinching series that goes inside Alabama’s criminal legal crisis: the Yellowhammer Files. We’re going to trace and track data and stories until something changes. Check these files as they are published and you will be stunned by what you read.

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more.Her columns now appear regularly in The National Memo.

Sixty years ago, on March 18, 1963, the Supreme Court of the United States issued its opinion in Gideon v. Wainwright, the seminal holding that all defendants in criminal cases are entitled to a lawyer even if they can’t afford one.

Clarence Gideon, after being denied a lawyer in a trial over whether he stole from a Florida pool hall — an offense of which he was innocent yet sentenced to five years in prison — scrawled out a pro se petition to the country’s highest court. The justices accepted Gideon’s bid to overturn his conviction and eventually reversed it with instructions that he couldn’t be convicted unless he had counsel.

About five months later, on the day after a jury acquitted Gideon in his second trial — one where he had the assistance of a flamboyant and effective local criminal defense attorney — the United States Senate voted on the Criminal Justice Act. The federal statute would require states and the federal government to provide counsel to defendants in criminal cases who couldn’t otherwise afford representation. The House of Representatives passed the bill months later, in 1964. As soon as it was passed the Criminal Justice Act backed up Supreme Court precedent with a statute that defendants could cite in order to secure themselves representation they couldn’t otherwise afford.

Since then, however, indigent defense has redeemed neither the promise of the Supreme Court decision nor the federal statute, at least not in the public’s eyes. For instance, in a public opinion poll conducted by American University, only 47 percent of respondents believed that public defenders provide adequate legal representation; a full half think they don’t. Only 45 percent are convinced that public defenders care about their clients. Fifty-three percent assume they aren’t very invested at all.

It’s not like public defenders can afford a public relations campaign. Since the Supreme Court held that defendants had a right to effective assistance under the Sixth Amendment and since Congress said that means someone else has to pay for an attorney when the accused can’t, the funding has never matched the need.

One of the reasons why funding for indigent defense is so inadequate is that there’s no specific way for the federal government to direct funds to indigent defense specifically. The Justice Department’s discretionary grant programs simply make money available to state and local public safety agencies each year.

But they’re just that: discretionary. Which means none of the states or municipalities are required to use the money for criminal defense. Most use it for local and state police agencies and, by strengthening the adversaries of public defenders, the funding mechanism ends up inadvertently weakening legal assistance for poor criminal defendants.

The problem here isn’t merely that the federal government isn’t assisting states to protect the constitutional rights of defendants; that’s a persistent failing for sure. The problem is that there are easy ways for presidential administrations to assure that public defense agencies don’t even get the few crumbs they might catch and not be identified for being as anti-Gideon as they are.

President Donald Trump wanted to reduce the discretionary grant money provided by the Edward Byrne Memorial Justice Assistance Grant (JAG) Program by $300 million. His administration never made many comments about indigent defense at all — former Deputy Attorney General Rod Rosenstein made remarks about the Right to Counsel National Campaign and said he was proud the Justice Department started it — although it was the Bureau of Justice Assistance under the Obama administration and the Justice Programs Office at American University that actually did the work on it in 2015.

For the most part, the Trump administration never mentioned public defense during its four years, except when the ex-president lamented a terrorism suspect being able to access “an outstanding lawyer” because of the country’s indigent defense infrastructure.

Ironically, there’s no greater experiment testing the value and worthiness of public defense than the Justice Department's January 6 dragnet. As of February 16, 2023, 1003 people have been charged with crimes related to the events at the Capitol that day; 421 of those criminal cases have been terminated or resolved as of March 10, 2023. Federal public defenders represent 256 defendants whose cases have been adjudicated as of March 10, 2023. Another 165 defendants retained their own attorneys.

The public defenders performed better than the privately retained attorneys. Of those who avoided jail, a total of 186, 113 of them, or 60 percent, had counsel provided for them. Forty percent of those who received sentences of home confinement or probation had shelled out for an attorney.

Comparing the populations side-by-side, the same percentage of clients represented by counsel they paid had to report to a federal prison as those who had counsel we all paid for.

Fifty-six percent of clients went to prison and 44 percent stayed home, no matter who represented them, which shows that
Public defenders have helped Trump’s followers more than he ever did. Or ever will.

But they’ll continue to struggle to get the funding they deserve to cover salaries and the cost of investigations into the allegations against their clients. It's hardly the anniversary gift they deserve.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

In early March Donald J. Trump and the J6 Prison Choir released a song — the audio alternates the choir singing The Star-Spangled Banner, with Trump reciting the Pledge of Allegiance, and ends with the prisoners chanting “U-S-A! — that’s now available for purchase. It became Apple Music’s top downloaded song on March 11.

From the audio, it’s not clear whose voices are in the choir or where they’re calling in from. Various reports have stated “jail” but didn’t specify whether it was Washington DC’s Central Detention Facility. Vanity Fair reported that the men in the choir were convicted of the crimes they were charged with, which would suggest that some called from a Bureau of Prisons facility.

I don’t think it’s possible to know who’s on that recording and where the crooning came from. An email to the spokesperson for the Washington DC Department of Corrections about the location of choir members remains unanswered.

It’s most likely that a number of men in the Central Detention Facility sang the song. The males confined in the jail are 87 percent Black; administrators decided to house J6 defendants together, away from others. The segregation has been compared to solitary confinement but the ways the men live don’t line up with that.

Reports from Washingtonian magazine describe a group of men who are allowed out of their single-occupant cells for five and a half hours per day; in contrast, solitary confinement restricts a person to his cell for 23 and a half hours per day. In solitary confinement, inmates can’t congregate or do anything together. To pass time, the Sixers often sing the national anthem in unison.

Plopping these defendants in one cell block is not tantamount to the hole. Rather, it’s a form of correctional management to prevent these Why-O’s from getting into even more legal trouble when they would eventually scrap with other general population inmates.

Ultimately it doesn’t matter who’s in the choir because it’s not the singers but the song that’s the problem. The song’s still a riot – literally. It’s a second insurrection involving the former president.

“A riot is a wild or violent disorder, confusion or disturbance” according to the Central Detention Facilty’s Inmate Handbook. The handbook doesn’t explore the difference between disorder and disturbance but it doesn’t need to do that. Disciplinary rules are notoriously vague so that any behavior that staff want to punish becomes eligible.

The standard for what counts as a riot in prison is low, almost impossibly low. In practical terms, a prison riot is two or more inmates acting in concert without a direct order from staff. Singing together is a riot. Signing a petition for better conditions is a riot. A hunger strike is a riot. Two or more inmates writing letters is a riot. It’s subjective; if someone’s bothered by an inmate’s behavior then it’s misconduct.

In 2020, Edward Terrell Walton and two other prisoners wrote an open letter to Gov. Gretchen Whitmer and corrections chief Heidi Washington complaining about conditions and visiting policy. The warden of Michigan’s Chippewa Correctional Facility immediately placed Walton in solitary confinement and charged the three with inciting a riot.

Walton also sent an email through the JPay electronic communications system to private parties on the outside asking them to call the warden and tell her if she doesn’t make the changes the prisoners want that there would “be a protest scheduled to take place at this prison to make national attention out of the situation.” That gets closer to the commonly accepted understanding of disturbance but demonstrations outside the facility aren’t, and can’t be, inmate controlled. Holding a prisoner responsible for a free person’s actions is a stretch. Calling it a riot makes it even longer.

But it's easy to see why Walton landed in solitary confinement. Inside the prison, "there is no such thing as a peaceful demonstration," Michigan Department of Corrections spokesperson Chris Gautz said to a reporter from the Detroit Free Press about Walton’s punishment. "Prisoners are not permitted to engage in organized protest." Three men signing a letter is organized. And it’s a complaint. Therefore it’s a riot.

This isn’t some Michigan corrections curiosity. It’s the rule everywhere.

The Sixers can defend themselves against accusations of inciting a riot by arguing that it wasn’t a protest; it was commerce, a fund-raising effort for the families of the people who are incarcerated for their involvement with the 2021 attack on the Capitol — and democracy. Or pointing out that the national anthem doesn’t address conditions in the only jail in the country’s capital. Or maybe they’ll counter that none of the singers acted in concert with each other, that each choir member recorded his piece alone and the producer layered the recordings over each other. Accusing them of rioting might be overkill.

But other, less serious offenses await them in the Inmate Disciplinary Code of Offenses, violations like “Interference with the Orderly Operation of the Facility” which includes “Engaging in loud or boisterous talk, laughter, whistling, or other vocal expression, if such is, or may tend to be, disruptive of order or a disturbance to others.” Any iteration of these traitors singing our anthem would count.

Many incarcerated people don’t understand that even relatively innocent actions, if done in a group, can be interpreted as overtures to violence. Prison/jail is a place where the same activity that is approved in one instance becomes threatening in another. When inmates are accused of these offenses, the argument centers on what their intent was, and quite frankly, that can be hard to discern. It’s why prison discipline gets so messy.

While every salient detail isn’t really known about the Sixers’ rendition of the national anthem, this is not in dispute: the singers either knew that what they were doing could be interpreted as a riot or they didn’t know. There’s no in-between.

Either way, the song sung by several men is still problematic. If the choir members didn’t know that their sing-along sessions could be interpreted as a riot, then they’re not paying attention and haven’t caught on to what the rules are. Inmates who are concerned about behaving better clue themselves into the ways the contours of the social compact get reshaped in different places and they’re mindful not to break the contract again. Ignorance isn’t a defense here.

If they did know that their patriotic ditty would be subjected to scrutiny as to whether it was a protest or not and possibly labeled another riot, then they just don’t care about the directives and rules of prison life, many of which are designed to keep the place safe and secure, even if they are often applied in a way that seems oppressive.

If the Sixers knew that it could be a riot, then they’re not afraid of any group effort as long as it serves and pleases Trump. That’s what got them their DC digs in the first place.

Any way it’s analyzed, the ballad doesn’t bode well.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

Last Thursday, a jury found former solicitor of South Carolina’s 14th District Richard Alexander “Alex” Murdaugh guilty of shooting and killing his wife, Maggie, and his son, Paul, in 2021. South Carolina Judge Clifton Newman sentenced Murdaugh to two consecutive life sentences the next day.

As the nation watched in rapt attention, the Murdaugh trial reintroduced a staple of every true crime murder saga: the medical examiner/coroner. And the trial showed how vital — and inconstant — they are in determining whether a homicide occurred or not.

Medical examiners and coroners both investigate deaths that may be the result of a criminal act or other suspicious circumstances, but a medical examiner is a licensed physician who is specially trained in forensic pathology. A coroner, on the other hand, is an elected or appointed official who is responsible for investigating deaths in certain jurisdictions, usually at the county or municipal level. Coroners aren’t required to have any particular medical or legal qualifications.

Given their lack of training and susceptibility to political pressure, coroners seem more likely to make mistakes or choose a manner of death that doesn’t match the facts. But the rate of inaccuracy on death certificates completed by coroners as opposed to medical examiners isn’t necessarily higher.

In a study of death certificates in Vermont, for example, researchers found that more than half of death examinations contained major miscalculations, but that the physician/non-physician difference in the investigator didn’t matter in a statistically significant way.

According to the National Registry of Exonerations, a project of The University of California Irvine Newkirk Center for Science & Society, the University of Michigan Law School, and the Michigan State University College of Law, 103 people were exonerated of murder because there was no crime; 26 more were cleared of manslaughter convictions because there was no crime. These wrongful convictions lie at the feet of the medical examiners or coroners: their determination of manner of death was inaccurate, and in a material way. There would never have been any criminal case if the reported manner of death had been accurate.

The 129 exonerations aren’t concentrated in coroner country. They’re spread among states with medical examiners and those who employ coroners.

Around five percent of medical examiner conclusions determine a cause of death to be criminal. Of that criminal subsection, about five percent will be ambiguous in some respect. Even if every death were examined this way — the Centers for Disease Control and Prevention says 3,464,231 people die in this country every year; only one-third to one-half are examined for cause and manner of death — that leaves 173,212 potential homicides. Of those, 8660 are hard to discern.

In 2020, 12,440 arrests were made for murder and non-negligent manslaughter. Some of those charges must have been dropped or even disproven at trial, but the numbers should be closer. More corpses should be examined for sure, but even a rough error rate is hard to pinpoint.

In many ways, the role of the official who determines death is more important than the police or the judiciary when settling what happened when someone died -- and it’s one of the most loosely constructed offices in state and municipal governments.

When an erroneous finding occurs, it's not always a frame-up. A variety of factors, including the quality of the evidence available, the thoroughness of the investigation, and the expertise and experience of the examiner or coroner can influence the accuracy of their findings. Additionally, medical experts may debate their conclusions, particularly in cases where the cause of death is not immediately apparent or where multiple factors may have contributed to the death.

But the Palmetto Low Country where the Murdaugh family acted in some law enforcement capacity for decades might be the perfect place where the shortcomings of a compromised coroner could play out. And they did, but not in expected ways.

The Colleton County, South Caroline coroner, Richard Harvey, studied “pre-med” at Medical College of South Carolina but didn’t attend medical school there. According to his own testimony at Murdaugh’s trial, Harvey is one of the first coroners in South Carolina to be medically trained. He also determined the time of Maggie and Paul Murdaugh’s death by placing his hands under their armpits to measure their body temperatures— as opposed to taking a rectal temperature, which would have required him to pull down the decedents’ pants. An axillary body temperature using a thermometer under the arm is an accepted method of determining time of death, but sliding fingers under armpits isn’t. It never has been.

As it turns out, Harvey’s finger stick estimate probably wasn’t that far off. With Harvey and his 30 years experience and some education at the helm, Colleton County is one of the better coroner’s offices, even if Google Maps shows it housed in an old Pizza Hut.

In neighboring Hampton County, South Carolina where Murdaugh served as solicitor, County Coroner Anna Fields graduated from high school. That’s the extent of her education. Fields defeated the previous coroner, Angela Topper, who was appointed to replace the coroner before her, Ernie Washington, after he resigned, mid-term, in 2019, without public explanation.

The Hampton County coroner deserves as much scrutiny as the one who testified because Maggie and Paul Murdaugh’s murders aren’t the only ones at play in this sordid tale. Washington had ruled the manner of deaths in two cases — that of 19 year-old Stephen Smith in 2015 and Murdaugh family housekeeper Gloria Satterfield in 2018 — as accidental and natural. But investigations into those deaths have since been reopened because there’s reason to believe they were unnatural — and potentially closely tied to Murdaugh family members.

Washington wanted to rule Smith’s death a homicide — by gunshot wound to the head, which was patently incorrect — but was overruled by the Medical University of South Carolina pathologist who said it was a hit-and-run. The coroner-pathologist showdown wasn’t a battle between facts and wishes; it pitted two egregious errors against each other. Washington eventually conceded, and Smith’s death was ruled an accident per the pathologist’s assessment. But if Washington had prevailed in his determination of a homicide, any defendant arrested for it could have easily defeated the charge simply by proving that it wasn’t a gunshot wound. It’s hard to say whose mistake — Washington’s or the pathologist’s — protected the perpetrator more.

Ever since the National Research Council concluded this system was “in need of significant improvement” in 2009 and recommended that states replace coroners with medical examiners, reform efforts have been underway. Because so few people want to become pathologists and poke stiffs, there’s a serious shortage of people qualified to work in these offices. Right now, the National Association of Medical Examiners lists more job openings than the number of people who graduate as forensic pathologists each year, which is about 40.

To train coroners to make them as good as medical examiners doesn’t make sense anyway, since empirically medical examiners produce results that are just as bad.

The coroners’ folly exposed by the Murdaugh case can’t be limited to South Carolina alone. It’s not limited to any area of the country and it should undermine our moral confidence in homicide convictions. In many jurisdictions, the person who sets off the whole murder investigation often has little idea what he or she is doing.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

Last week we learned that Twitter has only 290,000 paying subscribers worldwide, making the platform's projected annual revenue $28 million, far short of the $3 billion free speech maximalist Elon Musk planned on.

On the platform, Musk's pandered to the alt-right so much that advertisers have deserted the platform, fearing that their brands will appear adjacent to extremist and white nationalist messaging. Behind the scenes, he's already delivered on his promise to loosen speech restrictions by laying off or firing content moderators. The platform’s COVID misinformation policy is officially kaput.

Musk has to decide what he likes more: money or speech; in the past, unmoderated opinion content has proven to be a bad business model. It doesn’t profit.

Twitter is just like a traditional opinion forum but faster. Its dominance may even explain the way that opinion forums have changed in recent years. Some papers have stopped publishing editorials. Others have reengineered their opinion sections to solutions journalism model. Two months ago, The Washington Post scuttled its 70 year old Outlook section entirely and replaced it with a resurrected book review section. Four months before that, Gannett Media, the largest newspaper chain in the country, announced it was reducing its opinion output because readers didn’t like to be told what to think.

Opinion sections, of course, don’t tell anyone what to think but rather that they should think. They’re an essential part of content-sharing. As John Stuart Mill in his treatise, On Liberty, wrote: “Very few facts are able to tell their own story without comments to bring out their meaning.”

When that comment isn’t fact-based, it’s a losing bet. It’s played out several times in the past five years.

Once upon a time, bloggers had to pitch themselves to The Huffington Post to get space on the blog; it wasn’t just for everyone. I did it the same way many others did: I wrote directly to Arianna Huffington and got in. Even when writers were approved, editors would review and reject pieces that failed to meet the company’s standards.

That was in 2015. A year later, HuffPo editors delimited the admission requirements to a global platform and opened it up to anyone who wanted to post.

It didn’t last long. In January 2018, the platform's Editor-in-Chief Lydia Polgreen posted the reason why the blog-turned public bulletin board would end: “Open platforms that once seemed radically democratizing now threaten, with the tsunami of false information we all face daily, to undermine democracy.” It wasn’t a coincidence that just months before the company laid off 39 employees.

Bloggers migrated to Medium.com, another platform where anyone can open an account and post whatever they want, regardless of whether it’s accurate or not. Medium bans hate speech, promotion of harmful conspiracies, and spam, among other things, but falsehoods are not on the prohibited list.

Right around the time of the 2016 election, Medium marketed itself to political people as the nation’s — even the world’s — opinion page. “Get your message out with none of the editorial interference that comes with old-school media” is how Nancy Scola of Politico played Medium’s pitch.

But eventually misrepresentations got so bad that the Knight Foundation granted $140,000 to the Tampa Bay Times’ Politifact section to check political statements on the platform.

The freedom cost them. Last year Medium bought out almost all of its editorial staff when the founder, EV Williams, also a cofounder of Twitter, admitted that the site simply wasn’t making money.

“We have published many stellar stories that found a wide audience and more than paid for themselves,” Williams said at the time. “But our hit rate has been low, and we’re not near where we need to be to make it work economically.”

The latest iteration of opinion distribution is Substack. Writers, any writer at all, can monetize content by charging subscribers for yearly subscriptions for newsletters. Substack was founded in 2017 but became quite popular in 2021 when a number of opinion journalists — Charlie Warzel and Bari Weiss of the New York Times, Matt Yglesias of Vox, Matt Taibbi of Rolling Stone — left their posts and started Substack newsletters.

With a valuation of $650 million, Substack raised $65 million and paid advances to writers, a few close to half a million dollars; some writers made decent money in a model that other journalists labeled a scam. Substack differs from other platforms in that it offers writers legal advice, writer office hours, and other resources.

Substack established a rather laissez faire policy toward fact checking and readers noticed. “If you like your copy groomed and pristine, copy-edited professionally and fact-checked, and locked down by logic, some Substacks will give you fits,” wrote Politico’s Jack Shafer. Vaccine misinformation proliferated on the site and it was fact checked by major news outlets.

Some even classified the site as “alt-tech” like Rumble, Telegram, and Gettr, right-leaning platforms that embrace no-moderation management. But they struggle making money as well. Notably, Rumble lost $1.8 million in the first quarter after its IPO. Gettr’s valued at $2 billion now but it’s not attracting users in the ways it planned to.

Unsurprisingly, Substack’s already conceded its lack of sustainability. The company stopped its Series C fundraising earlier this year when it was revealed that Substack made only $9 million in 2021. The newsletter purveyor is trying to snatch up those who scurry away from the Bird App during the tumult, even starting a new private Substack option last month where contributors can approve who follows their work, much like Instagram. It’s worth noting that this new option on Substack actually prevents ideas from hitting the famed ‘marketplace.’ That’s what they predict will make them money.

HuffPo used an advertising model and Medium and Substack use subscriptions but how they make their money doesn’t matter; how they lose it is identical and it’s by not regulating content.

Of course, Musk has said that his goal in buying Twitter isn’t to make money but to help humanity. Even if that’s the case, companies need to balance their books to pay employees. Musk is leveraged on the Twitter purchase and he’s struggling to pay bills. And with his increasingly controversial tweets, the big advertisers who flew the coop don't have much reason to roost.

Musk should examine history: HuffPo, Medium, and Substack prove that solvency isn’t likely when opinionists run amok.

Accepting that democratization of content drives away customers leads us to some uncomfortable truths, namely that the vaunted marketplace of ideas may be a financial sinkhole — and that emporium allows only ideas to be exchanged, not money.

We want the market forces of this theoretical bazaar to reward good, factual ideas and drive out the unsourced ones. The co-founders of Substack relied on the idealized version of the market, writing in their newsletter, “To put it plainly: censorship of bad ideas makes people less likely, not more likely, to trust good ideas.” Indeed, one of the reasons why a robust marketplace can’t develop on social media is the presence of algorithms, artificially elevating the mediocre thoughts. That was Substack’s newsletter model’s selling point; readers could avoid any content they didn’t want by subscribing to what they were looking for.

David Weinberger, an affiliate at Harvard’s Berkman Klein Center for Internet and Society, told The Hill: “Musk does not actually understand free speech or the dynamics of the internet and is missing the point of what conversations [online] are.”

That he fails to comprehend how the marketplace of ideas functions, of course, is the least of Musk's troubles. But it's an immediate one, one that's almost guaranteed to destroy the company he bought.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.