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Crimcast is a virtual resource devoted to critical conversations about criminology and criminal justice issues. Our blogposts, twitter feeds, podcasts and other content provide an overview of trends, research, commentary and events of interest to criminal justice practitioners, academics and the general public. CrimCast is sponsored by The Center for Crime and Popular Culture, St. Francis College, Brooklyn, NY.

The Exonerated: Theater Speaks the Words of Life Before and After Death Row

Nickie Phillips

20121115-102516.jpg Guest Post by Demetra M. Pappas, JD, MSc, PhD

Ten years ago, a play called The Exonerated had its premiere in New York at the Culture Project. Jessica Blank and Erik Jensen, two actors/writers/directors wrote and adapted the documentary study of six Death Row inmates who had been exonerated, post-conviction, while awaiting execution; a seventh inmate, never seen in the play, is the husband of the sole female exoneree. In 2002, this was an ambitious undertaking, told as a staged reading.

The moving drama told, in an interwoven way, the stories of how the six were arrested, charged, tried, convicted and finally exonerated. As a former appellate lawyer whose work was in representing indigent defendants on appeal (in other words, after they had been convicted of the crime/s charged and while serving sentence), I can tell you that writing one such narrative can be challenging, let alone a half dozen, I had occasion to learn why the late Professor Abraham Abramovsky, my criminal law/procedure professor at Fordham University School of Law, said that the single most frightening case is that of the “innocent man,” because of the profundity of the consequences of conviction. While engaged in practice, I in fact represented a truly innocent man on appeal, Hoc Thai Vu, who had been tried and convicted of a shooting murder in the second degree based upon flimsy evidence, but told in flashes by some 22 witnesses. There was weak evidence of flight (in fact, the 21-year-old Hoc called people to take him to the airport in New York, pick him up in California, get tickets to Disneyland, in short, to do all of the activities most of us associate with a vacation over Labor Day weekend, which it was). There was evidence of animus between Hoc and the decedent (a hoodlum and extortionist who surely had many others with animus against him), and the purported eyewitness testimony of but one person of the Asian community to allegedly witness the killing (from the back of a van which had no windows in the rear, yet who inexplicably testified about my client’s distinctive shirtsleeves, which literally incredible testimony the original trier of fact in this bench trial somehow gave credence to).

As I read the transcript, I grew more and more appalled and wrote a brief which parsed each witness from friends to enemies to the police (the only non-Asian people to testify). I argued the case at the Appellate Division with an advanced case of tracheobronchitis, sounding entirely like Minnie Mouse, prompting the late jurist, Theodore Roosevelt Kupferman, to suggest that I go home and have a nice hot cup of tea; in my feverish state, I retorted that I would go home as soon as the bench reversed my client’s wrongful conviction (when I began clerking across the hall from him a few months later, this was a never ending source of teasing from the judge, who was benignly tolerant of this sass when I was in court). Unbeknownst to me at the time, the five soon-to-be unanimous judges were almost as appalled as I was; this I know because after the court reversed the conviction of my client (based upon lack of sufficient evidence) in People v. Hoc Thai Vu, 146 A.D.2d 545 (N.Y. App. Div., First Dep’t, 1989), another judge on the panel, John Carro, effectively stole me from the legal aid office for which I had been writing and arguing briefs. If it was challenging to seek the exoneration of Hoc, of one person, imagine doing the research for multiple wrongfully convicted people. While Jessica Blank and Erik Jensen had the information that the people whose cases they were studying had already been exonerated (or, in effect, proven innocent, despite their wrongful convictions), they commenced a study of great depth. They interviewed some 40 people over the phone and 20 people in person, before deciding on these six compelling voices to demonstrate the words of transcripts, court papers, and other documents. The stories of the six interviewees(some of whom now perform as themselves) formed what they call the “core of The Exonerated.” (Jessica Blank and Erik Jensen, “A Note from the Playwrights,” in the program of The Exonerated, presented by the Culture Project, in Association with the Innocence Project et al.) Having studied five independent trials (including two double trials, for a total of seven cases tried, under differing prosecutorial theories of the case, as well as both common law and statutory prosecutions) of the prosecutions against Jack “Dr. Death” Kevorkian (in other words, seven cases unrelated except for the fact of the same defendant) during the same time period, in order to obtain my PhD, I can attest that it is ambitious to try such a project, though eminently rewarding to see it carried through to the end.

This year, to mark the 10th anniversary of the Culture Project’s first production, The Exonerated honors the returns to grace of 6 exonerated Death Row prisoners (as well as the previously executed husband of exoneree Sunny Jacobs), who was electrocuted in a grotesque malfunctioning of that method). Primarily played by a rotating cast of A-list actors, on the night I saw it, the actual Sunny Jacobs (whose husband, Jesse, was wrongfully executed), played herself in the staged reading. That this tiny, optimistic little jewel of a woman survived and now thrives is testament to the human spirit. The stories and experiences of the six compelling voices demonstrate the words of transcripts, court papers, and other documents, as well as the original interviews.

Bob Balaban directs again, and shows that he has not lost his touch since directing and producing the original Off-Broadway hit production of The Exonerated, which won the Drama Desk and Outer Critics Circle, awards and then went on to take the Fringe First Award.

The person with whom I attended the performance, made an interesting comment with regard to the lighting design of Tom Ontiveros. Her comment was that as bits of the stories were told, lights would be turned on to show the speaker, while all the others were in pitch black. Her comment was that she felt that she was on the edge of her seat, because the stories were not themselves intertwined, and since not all of any one story was told at once, the lighting kept her on the edge of her seat, captivated. This visual response was as profound as that of anyone focused upon the words and the demeanors of the speakers, if actors, and perhaps more profound when the speaker was the actual exoneree.

Blank and Jensen note that the work is not yet over – when they conducted the original interviews, there were 89 people who had been exonerated from death row, but “as of this writing [of the 2012 “Note of the Playwrights”] there are now 297” exonerees.

What was left for me to tell a friend, who has had a lifelong interest in dramaturgical representations, was that after she said grace at the Thanksgiving table, she ought to get tickets to see The Exonerated at the Culture Project, 45 Bleecker Street, the production is currently slated to close December 3, 2012.