The Exonerated, a play by Jessica Blank and Erik Jensen, was first performed in Los Angeles by the Actors' Gang, on April 19, 2002, directed by the playwrights. The play premiered in New York City on October 10, 2002, at 45 Bleecker Theater, directed by Bob Balaban. It was first published in 2004.
The play tells the true story of five American men and one American woman who were convicted and sentenced to death for crimes they did not commit. Between them these six people spent over one hundred years on death row before the criminal justice system finally corrected its errors and freed them.
Blank and Jensen constructed the play entirely out of interviews they conducted with the former prisoners and from various court documents and case files. The lines of the play spoken by the characters are the actual words used by the exonerated prisoners. They tell their stories plainly, and the result is a shocking exposure of police and prosecutorial misconduct that led to the conviction and condemnation of the innocent. The stories are mini-chronicles of lives destroyed and precious time wasted—one man spent twenty-two years on death row—but the play also has its moments of humor as well as being a testimony to the fact that hope and faith can survive in even the bleakest of situations.
The Exonerated was highly successful, running off-Broadway for two years and over six hundred performances. Celebrity actors, including Richard Page 91 | Top of Article Dreyfuss, Jill Clayburgh, and many others, all accepted roles in the play at various times in its run. Illinois governor George Ryan attended a special performance of the play and later said it was a factor in his decision only a month later to grant clemency to all inmates of death row in Illinois.
Jessica Blank was born in 1975. Her mother is a movement educator with a background in modern dance; her father, Arthur Blank, is a psychoanalyst. In the 1960s, her parents were political activists who protested against the Vietnam War. Her father was an influential member of Vietnam Veterans Against the War.
The family moved to Washington, D.C., in the early 1980s, where Jessica's father worked at the Veterans Administration. Jessica grew up listening to political discussions at the dinner table; by seventh grade she was a vegetarian and feminist.
After graduating from college in Minnesota, Blank moved to New York City where she spent her time training at an acting studio, doing political organizing, attending auditions, and going to poetry slams.
When she met Erik Jensen in 2000, he had already been in New York City for almost a decade. Although there are few public sources that give much information about Jensen's family background, it is known that he grew up in rural and suburban Minnesota and after graduation from college attended an East Coast acting school. His career began in the early 1990s, and he made a living acting in independent films and television.
Blank and Jensen's interest in the death penalty began when they attended an anti-death penalty conference in 2000 held at Columbia University in New York. They heard about the group known as the Death Row Ten in Illinois who were falsely convicted following confessions extracted from them by a police commander using torture he had learned during the Vietnam War. The organizers of the workshop had arranged for one of the ten prisoners, Leonard Kidd, to call and speak directly to the audience. Blank and Jensen were moved by his story and resolved to write a play that would bring to a wider audience the issue of innocent people condemned to execution. After much discussion and research, the result was The Exonerated, which tells the story of six people who served time on
death row before being cleared of the crimes for which they were falsely convicted.
The Exonerated was first performed in Los Angeles by the Actors' Gang, on April 19, 2002, directed by Blank and Jensen. The play premiered in New York City on October 10, 2002, at 45 Bleecker, directed by Bob Balaban. During the course of the run, many big-name actors, including Richard Dreyfuss, Mia Farrow, Gabriel Byrne, Jill Clayburgh, and Sara Gilbert, appeared in the play. Susan Sarandon, Danny Glover, Brian Dennehy, Aidan Quinn, and Delroy Lindo starred in the adaptation of the play for Court TV. The Exonerated was awarded the 2003 Outer Critics Circle Award for Best Off-Broadway play, the Drama Desk and Lucille Lortel Awards for Unique Theatrical Experience, and the L.A. Ovation Award for Best World Premiere Play. It also received the Defender of Justice Award from the National Association of Criminal Defense Lawyers and Court TV's Scales of Justice Award.
As of 2006, Blank had an established career as an actor and writer; her television credits include Law & Order, Criminal Intent, Rescue Me, and One Life to Live; her film credits include The Namesake, directed by Mira Nair, Undermind, and A Bird in Hand. Blank's first novel, Home, was anticipated to be published in 2007.
As of 2006, Jensen had co-starred in more than a dozen feature films, including The Love Letter and Black Knight, and such television shows as Love Monkey, Alias, CSI, and Law & Order. His stage credits include Arthur Kopit's Y2K and Terrence McNally's Corpus Christi. He played the character Jeff in the 2005 Court TV version of The Exonerated.
As of 2006, Jessica Blank and Eric Jensen were married and living in Brooklyn, New York.
The Exonerated takes place on a bare stage. The actors sit on armless chairs with their scripts on music stands in front of them. There are no sets or special costumes. The play is seamless; there are no blackouts and no intermission.
The first character to speak is Delbert, who acts as a kind of chorus, fading in and out of the action. He speaks in poetic phrases and spells out a warning: "It is dangerous to dwell too much on things: / to wonder who or why or when, to wonder how, is dangerous." He thinks out loud about the best way to approach the problem. Could he emulate Richard and Ralph and Langston? He is referring to African American authors who speak out boldly in their works about racism: Richard Wright, author of Native Son (1940) and Black Boy (1945); Ralph Ellison, who wrote The Invisible Man (1952); and Langston Hughes, one of the leading poets of the Harlem Renaissance in the 1920s and 1930s. It is not easy to be a poet, Delbert says, "Yet I sing."
After this somber beginning, the lights go up on Sue and her husband Gary. Gary tells his story. One day he went as usual to the motorcycle shop at his parents' farm. They were not there, but he thought nothing of it, since they had been planning a trip. When they had not returned the next morning, he called the police. He then found his father's body in a back room. About an hour and a half later, the police found the body of Gary's mother in a trailer in front of the house. Her throat had been slashed. Within hours, Gary had been arrested.
After some more poetic lines from Delbert, the lights go up on Robert and his wife Georgia. Robert was working as a groom at a racetrack where a white girl was raped and killed. A short scene is then acted out behind Robert, in which he is interviewed by two white policemen, who claim they know that he killed the girl.
Robert then continues. He says he had dated the murdered girl, and at his trial he knew he would be convicted, since there were eleven whites and only one black on the jury. He makes a reference to the celebrated case of O. J. Simpson in 1995, suggesting that Simpson did not commit the murder for which he was charged. He was put on trial because he was a black man and the murdered woman was white. Robert's wife, Georgia, disagrees with him, suggesting that Simpson was guilty.
The next story is told by Kerry, with his wife Sandra. In the 1970s, he was working at an apartment complex in Texas. He was walking to the swimming pool when he saw a gorgeous nude girl in a window. Two days later, he saw the same girl lying out by the pool, and they started talking. He told her he was a bartender in Dallas. They went back to her apartment and made out. He never saw her again, but three months later he was arrested for her murder.
A scene follows from Kerry's trial, in which the prosecutor explains that a fingerprint belonging to Kerry was found on the door frame of the dead girl's apartment. Kerry's defense counsel points out that it cannot be proved what time the fingerprints were made, but the prosecution continues to claim that the prints were left at the time of the murder. Kerry then explains that part of the case had been hidden for twenty years. This was the fact that Linda, the victim, had been having an affair with a professor at the university. The affair had been discovered, and he had been fired from his job. Linda's roommate, Paula, had seen a man fitting the description of the professor in Linda's apartment the night of the murder. At the trial, however, Paula identified Kerry as the man who was in the apartment.
The next story is told by David. He was still in high school when one day he was interrogated by police about a robbery at a grocery store. He repeatedly said that he knew nothing about it, but the police kept telling him what happened and trying to get him to describe it.
Sheriff Carroll is then seen explaining what happened. When he entered the store with a fellow officer, he saw three young black men. Five or six customers were tied down. The robbers demanded money from the officers and told them to lie down. But when the men tried to tie the officers up with pantyhose, the officers fought back. In the chaos that followed, eighteen or twenty bullets were fired. Page 93 | Top of Article Carroll was wounded, and his fellow officer was killed. The robbers disappeared.
During the interrogation, David was so frightened that he confessed to the crime, even though he did not do it. He fully expected the truth to come out.
Sunny is the next character to speak. In 1976, she had just given birth to a baby girl, fathered by her boyfriend, Jesse. She also had a nine-year old son, Eric. She drove to Florida to collect Jesse, who had no money and had no way of getting home. When she arrived, they both stayed with a friend of Jesse's named Walter Rhodes, who appeared to be involved in criminal activities. Rhodes agreed to take them to a friend's house in Broward County, but something terrible happened on the journey.
Delbert returns and tells his story. He had just dropped out of seminary and was hitch-hiking around the country. He happened to be in Florida when a man was killed and a girl raped. He was stopped and questioned by the Florida Highway Patrol, and the patrolman wrote him a note saying he was satisfied Delbert was not the man wanted in connection with the crimes. However, two weeks later Delbert was arrested in Mississippi and charged with the murder and rape, even though he fitted the description given by the victim in only one respect: he is black.
After a brief scene in which Robert and Georgia discuss racism amongst the police, the narrative returns to Sunny. Rhodes, Jesse, and she pulled off the road late at night at a rest area. The police arrived for a routine check, saw a gun at Rhode's feet, and found out that he was on parole. Possession of a gun is a parole violation. One of the policemen drew his gun; there were four shots, and the two policemen were killed. With a gun in his hand, Rhodes told Jesse and Sunny to get in the police car. They drove off, and Sunny felt as if she had been kidnapped. When they were apprehended at a roadblock, they were arrested, and Sunny was quickly charged with first-degree murder.
The play returns to Gary. He was interrogated by the police, who were convinced of his guilt. He was exhausted and confused and even began to think he might have had a blackout and actually committed the murders. Under pressure, he gave the police a hypothetical statement about what he would have done had he killed his parents. One of the policemen supplied much of the story himself, and Gary's statement was later used incorrectly as a confession, even though he stated that he had no memory of such events happening.
In the interrogation room, Sunny denied shooting anyone. They continued to question her in an aggressive manner, and she said she wanted to cooperate with the investigation. Later she learned that Rhodes had negotiated a deal with the authorities. He claimed that Sunny and Jesse shot the two policemen.
Next is a scene from Sunny's trial, in which Rhodes testified that Sunny fired two or three shots at the first policeman and that Jesse then grabbed the gun, shot the policeman again, and then twice shot the second policeman. Then Rhodes said it was Jesse's decision to take the police car.
Delbert takes up his story. He voluntarily agreed to be extradited from Texas to Florida. Even though there was no evidence to tie him to the crime, he was convicted by a white jury.
After a brief scene in which Robert is appointed a public defender and Dilbert comments on how people are predisposed to see others in a certain way, the story returns to Kerry, who was presented by the prosecutors as a homosexual who hated women, even though his alleged homosexuality had nothing to do with the case against him. (In fact, Kerry was not a homosexual; he merely worked in a gay bar.) The prosecutor made a lurid, fervent speech to the jury, calling for the death penalty against Kerry.
Sunny returns. She tells of how Jesse was tried first and convicted. Sunny expected to be acquitted, but she was not. She speaks of prosecutorial misconduct, the hiding of evidence that would have proved she did not commit the murder.
The lights go down on Sunny, and up on David, the prosecuting counsel and his defense counsel. The defense counsel points out some of Page 94 | Top of Article the misconduct in the case. David was questioned without counsel, for example, and did not hear the charges against him for five days, in spite of the fact that according to the law a defendant has the right to be taken without delay and have the charges read in open court.
Sunny recalls the moment in which the judge handed down the sentence of death, and then Delbert tells a story of how when he was at the University of Chicago, he took part in a lab experiment on the content of dreams. He remembers that they placed electrodes by his ears, the same thing that happens when a prisoner is about to be executed.
Sunny recalls the oppressive nature of the prison cell she occupied, and then David recalls how when he entered prison he had a relationship with God, but he lost it and is trying to get it back. Kerry recalls how during his time on Texas's death row, one hundred and forty-one inmates were executed. He knew every man personally. He also points out that he was not a thug but came from a good family. If it can happen to him, he says, it can happen to anyone.
Gary tells of how he kept to himself a lot because he had no gang protection. He found a sewing needle stuck in a concrete wall. It had been smuggled in, and he used it to teach himself embroidery. He even managed to use extra clothing to make himself a tote bag.
Robert shares a memory about how every week the authorities would test the electric chair, and he would hear it buzz. The guards were bullies. After Robert once agreed to sign a statement by another inmate claiming harassment by a guard, Robert found himself being harassed by the same guard. He wrote to a judge and complained about the guard, asking for a court order that would keep him away from the guard. He said in the letter that he would not submit to the harassment any longer.
Kerry reports that because he had been declared to be a homosexual, he was raped in prison. He lived in fear of his life and tried twice to commit suicide.
Delbert says that he has faith, and he refused to internalize all the anger he felt. He knew that if he did that, he would already in effect be dead.
David reports that while he was in prison, he felt the love of God for His people and was filled with religious spirit. One day when the prisoners were outside and it was raining, he commanded the rain, in the name of Jesus, to stop. The rain stopped. After it started again, David repeated the instruction to stop, and the rain stopped again. This happened three times in all. Another inmate, watching this, was amazed.
Sunny recalls the fifteen years in which she and Jesse communicated by letters. She saved them all. Jesse appears and reads a letter he wrote to Sunny in 1976, including code words in Japanese referring to sex. This exchange of letters sustained Sunny during her incarceration.
Kerry was sustained by his desire to hold on for his older brother, Doyle, who had always defended him. Doyle visited, saw Kerry's black eyes, and wanted to talk to the warden about it. But Kerry would not let him, because snitching is the worst thing a man can do in prison. So Doyle could not help him. He started drinking, his life went downhill, and in 1997, he was shot and killed outside a club in Tyler, Texas, after an earlier incident involving his friend, Jeff, and two other men. The murderer was convicted but served only three years in prison.
Sunny reports on how she refused to let her situation defeat her spirit. She found some faith, knowing there was a greater power than that which was imprisoning her and that she could appeal to that higher power.
Robert always dreamed he would get a new trial, and one day he did. At the trial, it emerged that all along the police had in their possession a sixteen-inch strand of red hair found in the dead girl's hand. The hair clearly belonged to the girl's ex-boyfriend, not to Robert.
Kerry reports that after twenty-two years on death row, he was released on DNA evidence that showed it was the victim's former boyfriend, the professor, who was the murderer. The professor was never charged.
Gary reports how a lawyer at Northwestern University took on his case. The lawyer found out that in 1995 the government got a videotaped confession from a member of a motorcycle gang that he killed Gary's parents. Gary says that two men have now been convicted of that crime, but he is adamant that they should not receive the death penalty.
Sunny reports that in 1979 Rhodes wrote to the judge. Rhodes then appears, reading his letter, in which he confesses that he was the man who shot the two policemen. Sunny points out that she was not released until 1992.
Delbert says that when he was released, he was numb and did not sleep for the first three days. Then a pastor prayed for him, and since then he has had no difficulty in sleeping. But he has had to learn how to feel again, how to be human again.
David reports that after he was released, he would lock his door at home after he returned from work, as if he were still in prison. Prison did something to him, he says, and now he is trying to find out who he really is. Sometimes he smokes marijuana and writes poetry, just as he used to do. He wants to recover his lost spirituality.
Kerry's wife, Sandra, is next. She tells of how she first met Kerry after his release, when as a member of the Dallas Peace Center she helped him reenter society. They soon married. Kerry reports that he still has nightmares as a result of his incarceration.
Robert and Georgia report that he has been out of prison for nearly four years, and they have been married for two years. He tries not to think of what he might have achieved in his life had he not been wrongly imprisoned. He is frustrated that he has been unable to get his license back for working at the racetrack.
Next, it is Sue and Gary's turn. Sue reports an incident at the market, in which a farmer implied that Gary might be guilty after all. Gary comments that everyone sees things in their own way, so it is hard to know what reality is.
Sunny explains that she got another chance because she sought it. Then she tells the horrific story of Jesse's botched execution, in which three long jolts of electricity were used, and it took thirteen and a half minutes for Jesse to die.
Delbert speaks about how a man cannot afford to give in to fear, and people should not blame all white people for what happened. He also says that in spite of the fact that the criminal justice system is broken, he thinks the United States is a great country. But people must still ask what is wrong with it and try to remedy it.
Sunny says she wants to be a living memorial, a testimony to the fact that she did not allow her experience of being wrongly convicted and condemned crush her.
The last words are given to Delbert, who repeats the words with which he began the play. In spite of the difficulty, still he sings, like a poet. As the sound of rain fades in, he tells David to sing. David raises his hand and the rain stops.
David is an African American man of about forty. He is described in the character notes as "A gentle, sad man." Born and raised in Florida, he is only eighteen when he is falsely convicted of murdering a policeman during a grocery store robbery. When he was a child, David had strongly developed religious feelings. He wanted to channel the power of God to cure the illness of a woman who lived across the street. In prison, he lost his sense of possessing a relationship with God and is still trying to recover it. He believes that the Kingdom of Heaven lies within, even though people tend to seek it in outer things.
David is based on the real life David Keaton.
Delbert is a sixty-year-old African American man, a radical and a poet. According the authors' character notes, "His whole personality is like an old soul song: smooth, mellow, and with an underlying rhythm that never lets up." He is a serious, philosophical man who thinks deeply about the issues facing American society, such as racism. Delbert dropped out of a seminary and was hitchhiking across Texas, getting rides from white people and not experiencing any trouble at all until he was arrested and wrongly convicted of a murder and rape that took place in Florida.
Delbert is based on the real life Delbert Tibbs.
Doyle is Kerry's older brother. He is murdered following an incident at a club.
Gary is a forty-five-year-old white man. He comes from the Midwest and is now an organic farmer, married to Sue. He is described in the character notes as a "hippie," who was at home in the 1960s and 1970s, and as "generally good natured, friendly, and quite smart." Gary was subjected to ruthless interrogation, and in a state of physical exhaustion and emotional distress, he confessed to killing his parents. After he is freed, he seems to remain optimistic and does not harbor feelings of revenge. He does not even advocate the death penalty for the two men who murdered his parents. He seems to have faith in God, in miracles, and in the power of DNA to establish guilt or innocence.
Gary is based on the real life Gary Gauger.
Georgia is Robert's African American wife. She is from the South and is described in the authors' notes on the characters as "loudmouthed, outspoken, and extremely warm." She and Robert are Page 96 | Top of Article very lively together and tend to finish each other's sentences.
Jeff worked at a McDonald's restaurant in downtown Jacksonville. He became friends with Doyle, Kerry's brother, and witnessed Doyle's murder.
Kerry is a forty-five-year-old white man from Texas. In 1977, at the age of nineteen, he was working as a bartender when he was arrested, tried, and convicted for a murder he did not commit. Kerry spent twenty-two years in prison and now wants to rediscover the world. The character notes state that he "always wants to make sure he connects with whomever he is talking to." Kerry married Sandra after he was released. She remarks that he is "really nineteen at heart."
Kerry's case is based on the actual case of Kerry Cook.
Robert is an African American man in his thirties. He was a horse groomer in the Deep South when he was wrongly convicted of murdering a white girl whom he had dated. Described as "hardened but not lacking a sense of humor," he is married to Georgia. He expresses optimism that there is less racism in the United States now than there was when he was convicted by a jury consisting of eleven white men and only one black man.
Robert is based on the real life Robert Earl Hayes.
Sandra, a forty-year-old white woman, is married to Kerry. She is described as "sweet, nurturing," with a great sense of humor about her husband. Before she met Kerry, she says, she was "very conservative." She had a family member murdered and is a firm believer in capital punishment. But when she heard Kerry's story after he had been released, she wondered how such a thing could happen.
Sue is Gary's wife. She is a solid, reliable woman who speaks with a strong upper-Midwest accent.
Sunny is a fifty-year-old white woman who is now a yoga teacher, living in California. The authors' character notes state that Sunny's "lightness and positivity contrast with moments of great depth and clarity." She was wrongly convicted in 1976 of killing a policeman and was not freed until 1992. She shows courage and optimism during her long ordeal, in spite of the fact that during her incarceration her parents died, her two children grew up without her, and her husband Jesse Tefero, who was also wrongly convicted, was executed.
Sunny is based on the real life Sonia Jacobs.
Faith and Hope
Although the play is a somber one, several of the characters give expression to their faith and hope. Sunny, for example, tells of how, during her imprisonment, she resolved not to feel sorry for herself. She had a great realization:
I wasn't just a little lump of flesh that they could put in a cage. And I decided that I would have faith, that there was some power out there greater than them, to which I could make my appeal.
This faith gave her the strength to carry on.
Robert clings to hope because of a dream he had before he went to prison, in which he saw himself on death row and also saw himself released from it. "And 'cause a that dream, I always said, I'm gonna get a new trial." Sure enough, this is exactly what happened.
Delbert comes across as a strong man who has always been able to cope with whatever happened to him. He also mentions faith, although he acknowledges that sometimes it is not easy to maintain it:
I don't know if I have the patience of Job—but I hope I have his faith. Even if you got a teeny-weeny bit, it's big. The s——is hard to come by, you know what I'm saying?
Sunny, Robert, and Delbert do not use their faith to gloss over what happened to them. They remain clear-eyed and realistic about the harm they suffered as a result of their wrongful incarceration. But they are also clear about what helped them through it.
By contrast, David, who had always had strong religious feelings, lost his faith while he was in prison. He has not forgotten that such a thing exists, however, and says, "I guess I'm still reachin' out to find it." He still knows in his heart that "the kingdom of God is within you," but there is no escaping the fact that his story is one not of hope but Page 97 | Top of Article of loss. Near the end of the play, he talks about pictures of himself taken when he was in high school. In the photograph, he is smiling, but now "that's somethin' that people round here don't see me do too much, smile."
Racism in the criminal justice system is a recurring theme. Three of the exonerated characters are African American, and in at least two of their cases, racism is a factor in their arrest and conviction. Delbert knew all about racism when he attended the seminary, where it is "so pervasive you could cut it with a knife." He notes that the only way he resembled the descriptions of the suspect in the murder and rape case was that they were both black. He also points out the imbalance in jury selection, since juries are selected from voting rolls, and in 1974, black people in Florida had only had the right to vote since passage of the Voting Rights Act in 1965, so they were underrepresented on any jury in the "backwater town" in which he was tried. He alludes also to presumption of guilt that lay upon any black defendant in his situation: "If you're accused of a sex crime in the South and you're black, you probably shoulda done it, you know, 'cause your ass is gonna be guilty." But Delbert also stresses, as does Georgia, that not all whites should be regarded as racist.
Robert is also aware of the racism that helped to produce the miscarriage of justice in which he was a victim. He comments on the fact that he dated the white girl who was later murdered and that did not go down well with people in Mississippi, who did not approve of interracial couples. He says, "I might as well be wearin' a sign that says ARREST ME. I'M BLACK." Robert also knows he is going to be convicted when he sees that the jury is composed of eleven whites and only one black. In addition, he mentions a significant incident not directly related to his arrest. He was sitting talking with a white man at a gas station when a white policeman approached and asked the white man if he was having a problem. The policeman did not pose the question the other way round; he just assumed that Robert, being black, was harassing the white man. Robert's wife, Georgia, comments that racism is one of those things that are passed down from generation to generation and will never go away.
The play belongs to the genre known as documentary theater, in which contemporary social issues are explored, often from a leftist or liberal Page 98 | Top of Article standpoint, by the artful use of nonfiction materials, such as interview and court trial transcripts, speeches, articles, public hearings, and the like. The purpose of documentary theater is to challenge the audience to examine a particular social issue, such as an inequitable political system or social structure, abuse of power by those in authority, or other issues relating to class, race, gender, or sexual orientation.
The authors of The Exonerated interviewed many former death row prisoners and recorded hundreds of hours of audio tapes, which they then converted into typed transcripts. They also studied court transcripts and case files. As they write in the introduction to the play, "We spent countless hours in dusty courthouse record rooms, pawing through thousands of microfiche files and cardboard boxes full of affidavits, depositions, police interrogations, and courtroom testimony." Then they shaped and edited these voluminous and unwieldy documents into a ninety-minute play. Almost every word comes from the public record or from an interview the authors conducted. The result is a dramatic work that uses everyday language as spoken by real people, the stories of real people having been shaped by the dramatists into a theatrical form.
Although modern documentary theater was pioneered by German dramatists Bertolt Brecht and Erwin Piscator in the 1920s, the genre is as old as theater itself and can be dated back to 492 B.C.E., when the ancient Greek playwright Phrynichus wrote The Capture of Miletus, a play about the Persian War. Contemporary American dramatists who work in this genre include Mark Wolf, Emily Mann, Anna Deavere Smith, and Eve Ensler.
The Death Penalty in the United States
Historically, application of the death penalty has waxed and waned in the United States. In the 1930s, there was an average of one hundred and sixty-seven executions a year. But by the 1960s, opinion worldwide had shifted in favor of the abolition of capital punishment. In the period from 1960 to 1976, the number of executions in the United States fell to an average of between twelve and thirteen per year. In 1972, the Supreme Court ruled that death penalty statutes in forty states were unconstitutional. The Court also commuted the sentence of six hundred and twenty-nine prisoners on death row. However, Florida, Georgia, and Texas, states in which the death penalty had been firmly entrenched, rewrote their laws, and in 1976, the Supreme Court upheld them. The Court also declared that capital punishment was not in itself unconstitutional. This set the stage for the resumption of executions in 1977, and the number of executions grew steadily. In the 1980s, one hundred and seventeen people were executed in the United States. In the 1990s, the figure rose sharply to four hundred and seventy-eight. The most executions were in Texas, Virginia, Oklahoma, Missouri, and Florida.
However, during this period, the Supreme Court established some limitations on capital punishment. In 1986, the Court banned the execution of insane people. In 2002, in Atkins v. Virginia, the Court declared that execution of mentally retarded people amounted to cruel and unusual punishment and was, therefore, in violation of the Eighth Amendment. This constituted a reversal of a 1989 Supreme Court ruling that had upheld the constitutionality of the execution of retarded persons.
Several rulings in the 1980s dealt with the execution of juveniles. In 1989, the Supreme Court held that the Eighth Amendment does not prohibit the death penalty for crimes committed at the age of sixteen or seventeen. Between 1985 and 2002, twenty-one men who were seventeen or under at the time they committed the crime were executed. It was not until 2005 that the Supreme Court, in Roper v. Simmons, struck down the death penalty for juveniles.
However, during the 1990s and beyond, there were growing doubts in the United States about the fairness of the death penalty and the validity of the process by which defendants are tried and convicted. Such doubts were created by the fact that between 1973 and 2002, according to the Death Penalty Information Center in Washington, D.C., one hundred and three people were freed from death row where they had been incarcerated for crimes they did not commit. Many of these cases, particularly in the later years, involved the use of DNA evidence, in which it was demonstrated beyond doubt that the convicted individual did not commit the crime.
In 1998, Northwestern University School of Law held a National Conference on Wrongful Convictions and the Death Penalty. The conference was attended by twenty-eight former prisoners freed from death row. In January 2000, Illinois governor George Ryan, concerned about the fact that thirteen men had been released from death row in Illinois Page 99 | Top of Article over the previous few years, declared a moratorium on executions and appointed a blue-ribbon Commission on Capital Punishment to study the issue.
In 2002, the commission reported that the state's justice system concerning the death penalty was badly flawed. The commission made eighty-five recommendations for reform, including guaranteed access to DNA testing, mandatory videotaping of the interrogation of murder suspects, and improved training for defense lawyers. However, over the following months, the Illinois legislature made no progress in putting these changes into law.
In mid-December, there was a special performance of The Exonerated in Chicago, Illinois, in the context of a conference about death row inmates who had been released, sponsored by the Center on Wrongful Convictions. The performance was attended by Governor Ryan.
Blank and Jensen, in their book Living Justice, which tells the story of how The Exonerated came to be written, describe their reactions when they heard that Governor Ryan would be attending a performance of their play:
We were blown away, honored, and totally humbled. Governor Ryan was in the midst of making a decision that would affect the lives of hundreds of people. He had opened up a dialogue with thousands of experts on both sides. And now we were going to get to be a part of that conversation?
After the play ended that night, Jensen introduced Governor Ryan to the audience and read a statement imploring him to "err on the side of life."
A month later, just before he left office, Governor Ryan granted clemency to all of the one hundred and sixty-seven death row inmates in Illinois. He commuted the sentences to life imprisonment. Governor Ryan made a statement, quoted in Stanley Cohen's book, The Wrong Men, that all the cases
raised questions not only about the innocence of people on death row, but about the fairness of the death-penalty system as a whole. Our capital system is haunted by the demon of error: error in determining guilt and error in determining who among the guilty deserves to die.
Governor Ryan also granted full pardons to six men, including Gary Gauger, one of the characters featured in The Exonerated.
Reviewers were unanimous in praise of The Exonerated when it opened at New York's 45 Bleecker Theater in 2002. Ben Brantley in the New York Times describes the play as "intense and deeply affecting." Commenting on the fact that the purpose of the play was obviously to shake the complacency of those who believed that such things could not happen in the United States, Brantley adds that in spite of this clear mission
There is no reek of piety or creak of didacticism about The Exonerated…. It is, on its own terms, thoroughly involving theater, while reminding you that real life has a way of coming up with resonant metaphors, grotesque ironies and cruel coincidences that no dramatist would dare invent.
In Newsweek, Marc Peyser drew attention to the perhaps surprising success of such a no-frills, somber play at the box office. The Exonerated, he writes, "has become one of the hottest tickets in New York, even though its artfully woven testimonials of people freed from death row is hardly your light evening out."
John Lahr, in the New Yorker, was also appreciative of what he called the "harrowing stories" told in the play. He writes that The Exonerated "bear[s] witness both to the ineptness of the American judicial system and to the poetry of ordinary citizens…. Its stories are stark and riveting and cunningly orchestrated." Charles Isherwood, writing in Variety, expressed a similar verdict. He writes that the play is "disturbing and even grueling"; it amply fulfills one of the purposes of art, which is "bearing witness to human suffering." Isherwood argues that the early part of the play, in which the arrests and convictions are presented, is not as strong as it might be. With its collection of "mendacious lawyers, benighted judges and corrupt police officers, the show tips inevitably into caricature," he writes. The strongest portions of the play come later, the "plain-spoken reflections from the wrongfully imprisoned." Isherwood concludes:
The play is a devastating memorial to injustice, but it also pays handsome tribute to the resilience of human hearts and minds. Having endured misfortunes it might be more comfortable to forget, the people depicted here chose to tell their stories, in the hope that one day there will be no more such stories to tell. The least we can do is listen.
As of 2006, four years after the first performance, the theater-going public was still listening; a new production of the play was performed at Theater Works in Hartford, Connecticut, from February to March, 2006. It seemed likely that audiences would be listening to these disturbing stories for some years to come.
Aubrey holds a Ph.D. in English and has published many essays on drama. In the following essay, he discusses the ways in which the operation of the criminal justice system may result in innocent people being convicted.
Although over half the countries in the world have abolished capital punishment, the United States continues to use it, and a consistent majority of Americans support it. A 2004 Harris poll found that 69 percent favored the use of capital punishment, even though only 41 percent thought it was a deterrent. Thirty-six percent favored an increase in the number of executions. However, few people who have investigated the issue in depth can remain quite so sanguine about the criminal justice system in capital cases. The problems with the system, which are dramatized so effectively in The Exonerated, fall broadly into six main categories, as described in Stanley Cohen's book, The Wrong Men: America's Epidemic of Wrongful Death Row Convictions: eyewitness error; corrupt practices within the legal system; jailhouse informants who lie; false confessions; inadequate or poorly applied science (often known as "junk science"); and lack of evidence.
Eyewitness error is a common cause of invalid convictions. Although most jurors tend to believe eyewitness testimony, studies have shown that it is accurate in only about 50 percent of cases. It turns out that people do not have very accurate recall of people they may have seen for just a few fleeting seconds, often from a fair distance away, and sometimes in darkness. Also, people remember information less well when they are in stressful situations, such as witnessing a violent incident or a murder. An analysis of wrongful convictions since the restoration of capital punishment in 1976, conducted in 2001 by the Center on Wrongful Convictions at Northwestern University, concluded that erroneous eyewitness testimony, whether offered in good faith or perjured, was the most frequent cause of wrongful convictions in the U.S. criminal justice system. The center analyzed the cases of eighty-six defendants who had been sentenced to death but legally exonerated based on strong claims of innocence. Of those eighty-six, eyewitness testimony played a role in the convictions of forty-six—over half of the total. In thirty-two of those forty-six cases, only one eyewitness testified. Page 101 | Top of Article Also, eyewitness testimony was the only evidence against thirty-three defendants (38.4 percent).
Eyewitness error was a factor in the conviction of Delbert Tibbs, one of the characters in The Exonerated. The rape victim, Cynthia Nadeau, identified Tibbs from a Polaroid photo shown to her by police, even though Tibbs did not match the original description she gave. She also picked Tibbs out of a police lineup. But as both the play and Stanley Cohen point out, nothing else about the case supported Nadeau's story. There was no physical evidence against Tibbs, and no witnesses could place him anywhere near the place where the crime took place. The case against Robert Earl Hayes (Robert in The Exonerated) was also boosted by eyewitness testimony that later turned out to be false. Ironically, one of the characters in the play, David, who was only eighteen at the time and still in high school, shows a naïve faith in eye witness testimony. When he is coerced into confessing, he reassures himself that the eye witnesses to the crime will know he did not do it "'cause I just wasn't there and they would have seen that." He assumes that these witnesses will testify in court that he was not the robber. Unfortunately for David Keaton, the system did not work quite like that. Not a single eyewitness said at the trial that David was not the man they had seen.
According to Cohen, the second category of error that produces false convictions, corrupt practices, includes such factors as police perjury, prosecutors who withhold evidence that might benefit the defense, and incompetent defense counsel. Prosecutorial misconduct was the major factor in the false conviction of Kerry Cook. After Cook's conviction was overturned in 1991 and his retrial in 1992 had resulted in a hung jury, a state district judge ruled in 1993 that prosecutors had suppressed key evidence. This made no difference to the outcome of his third trial in 1994, when he was convicted and again sentenced to death. In 1996, the Texas Court of Criminal Appeals reversed the conviction, citing prosecutorial and police misconduct. The case against Cook rested largely on a fingerprint of his found on the door of the victim's home. A fingerprint expert testified that the print had been left only twelve hours before the body was discovered. However, it is not scientifically possible to date a fingerprint, and the expert later admitted that he had been coerced by the district attorney's office to testify otherwise.
Cook also had poor legal representation. In The Exonerated, the character Kerry points out that when a witness who had originally said she had seen someone else in the victim's apartment on the night of the crime, changed her testimony and points in the courtroom at Kerry as the man who was there, his lawyer did not even challenge her statement. He adds, "My court-appointed attorney was the former DA who jailed me twice before. He was paid five hundred dollars by the state, and in Texas you get what you pay for." Such things happen not only in Texas. Most defendants in capital cases cannot afford a lawyer, so the court provides one for them. These cases are complex and require much expertise and experience on the part of the defense counsel, but states provide little in the way of compensation. The result is that people on trial for their lives frequently are represented by inexperienced and sometimes incompetent lawyers. In one notorious case in 1989, a court-appointed lawyer in Alabama was found to be drunk during a capital trial. He was held in contempt and jailed.
The case of Robert Earl Hayes also contains an example of corrupt practices. Blank and Jensen, in their book Living Justice, discuss this case in more detail than they were able to do in the play. "Evidence was lost, mishandled, contaminated—and investigated incorrectly," they write. In their own investigations, Blank and Jensen found sworn testimony from one of the investigators at the crime scene that "they had been instructed to look only for ‘Negro hairs.’" Because of this, the police ignored the fact that the victim was clutching in her hand Page 102 | Top of Article clumps of sixteen-inch long Caucasian hair, which presumably she had torn from the head of her attacker. But this vital piece of evidence was ignored by police and was never tested. The tireless work by Hayes's lawyer, a public defender named Barbara Heyer, won him a new trial in 1997; at that trial, the sixteen-inch-long hair was found to belong to a man named Scott, who was already in prison for another rape and murder committed at a racetrack. Hayes was acquitted.
The third category of error identified by Cohen, jailhouse informants who have a motive to present false information, applies to the case of Sonia Jacobs (Sunny in the play). Cohen describes how the process works with these "jailhouse snitches," who are more formally known as "incentivised witnesses":
They offer courtroom testimony for the prosecution in exchange for an incentive, usually the dropping of a criminal charge or its reduction to a lesser charge. If the witness is already incarcerated, he is likely to have his sentence reduced or his parole accelerated.
The Center on Wrongful Convictions has conducted a study on the one hundred and eleven people who were released from death row since capital punishment was resumed in 1977. The center found that fifty-one of those people (45.9 percent) had been convicted on the basis of incentivised witnesses. That makes snitches the leading cause of wrongful convictions in U.S. capital cases.
In the case of Sonia Jacobs, as well as her husband Jesse Tafero, the incentivised witness was Walter Rhodes, a man with a prison record who knew how to manipulate the system. He arranged for a plea bargain in which he would receive three life sentences and immunity from the death penalty in exchange for testifying against Jacobs and Tafero. Later, in 1979, he recanted his testimony—his letter doing so became part of The Exonerated—and Page 103 | Top of Article admitted that he was the person who fired the fatal shots at the two policemen. Over the years, Rhodes recanted his story, then reiterated it, and told several different versions of what happened that day. In 1981, Jacobs's sentence was commuted to life imprisonment, but the unreliability of Rhodes's testimony did nothing to save Tafero, who was executed in 1990. Jacobs was more fortunate. As Cohen reports in The Wrong Men, a childhood friend of Jacobs named Micki Dickoff took an interest in the case and did some research. She found that Rhodes had failed a polygraph test but the result had been withheld from the defense. A federal appeals court had determined that only Rhodes could have fired the gun. Also, "The testimony of the state's witnesses was found to be false. The prosecution had suppressed the statement of a prison guard that corroborated Rhodes's recantation of his original testimony."
False confessions are another source of error in capital cases. According to Cohen, of convictions that have been reversed using infallible DNA evidence, 20 percent involved false confessions. Most juries will convict a defendant if he has confessed to the crime, even if there is compelling evidence to the contrary. People may confess to something they did not do for a variety of reasons, but sometimes such confessions result from psychological coercion tactics used during police interrogations. One technique is known as "hypothetical questioning," in which the police ask the suspect questions such as, "If you were going to do the crime, what method would you have used?" The suspect's answers are then manipulated to make it appear that he is confessing to actually having committed the crime. This method is clearly demonstrated in The Exonerated in the interrogation of Gary Gauger. He was put under extreme pressure, not being allowed to sleep or lie down. After some hours, during which the interrogators repeatedly said they knew he committed the murders, Gauger started to think that maybe he had had a blackout and was indeed guilty. He agreed to give what the police called a "‘vision statement’—a hypothetical account of what I would have done if I had killed my parents." That account was then used as a confession, and nothing Gauger said in denial of it made any difference, even though, as he states in the play, his "vision statement" was not recorded or written down.
Despite the fact that there was no physical evidence linking Gauger to the crime, he was charged with a double murder, convicted, and sentenced to death in January 1994. The sentence was reduced on appeal to life in prison. In 1996, the Second District Illinois Appellate Court ordered a new trial, holding that Gauger's so-called confession resulted from an arrest made without probable cause and, therefore, should not have been admitted at the trial. Since without the "confession" there was no evidence against Gauger, the charges were dropped and he was freed.
The Exonerated contains a second example of a false confession, that of David Keaton. In 1971, Keaton was interrogated for nearly a week without access to an attorney. He was not even allowed to call his mother. He claimed in an interview with Blank and Jensen that his interrogators threatened to kill him: "They said I could die right there. Or they'd put me in prison so far I'd never get out." He eventually confessed just as a way to get out of the situation he was in, naively believing that the truth would come out at the trial. He was wrong. He spent two years on death row before the Florida Supreme Court reversed the conviction on appeal, on the grounds that exculpatory evidence had been withheld by the prosecution. Three other men were later convicted of the crime for which Keaton had been incarcerated.
Cohen's next category of errors relates to "junk science," in which a defendant is convicted on the basis of scientific conclusions that do not hold up under close, objective examination. This can include, according to Cohen, "faulty ballistics technology, inaccurate medical diagnoses, and testimony induced under hypnosis." The Exonerated contains a textbook example of junk science in the case of Robert (Robert Earl Hayes). Hayes was convicted in part on a DNA test, but in 1995, the Florida Supreme Court ruled, as Cohen writes, "that the band-shifting technique used to identify the DNA had failed to reach the level of scientific acceptance." New DNA testing established that Hayes's DNA did not match the DNA found at the crime scene.
The last category Cohen identifies, which overlaps with the others, includes the cases in which there is insufficient evidence to prove a defendant's guilt beyond a reasonable doubt, which is the standard required in a criminal case. Cohen argues that in these cases, the justice system has lost sight of the fact that the burden of proof rests on the prosecution; the defendant is presumed innocent until proven guilty. Cohen fears that in many cases a jury has convicted on the basis of reasonable suspicion rather than reasonable doubt.
All the cases in The Exonerated fit into this category of lack of evidence. Since the six people represented in the play did not commit the crimes Page 104 | Top of Article for which they were convicted, it almost goes without saying that there was no evidence against them that would stand up to full and fair scrutiny. That the justice system finally corrected its errors and freed them seems small compensation for the many years of unnecessary suffering they endured.
Source: Bryan Aubrey, Critical Essay on The Exonerated, in Drama for Students, Thomson Gale, 2007.
Dyer holds a Ph.D. in English literature and has published extensively on literature, film, and television. He is also a freelance university teacher, writer, and educational consultant. In the following essay, he analyzes The Exonerated in terms of philosopher Michel Foucault's discussion of imprisonment and capital punishment in Discipline and Punish: The Birth of the Prison (1975).
In his seminal study Discipline and Punish: The Birth of the Prison (1975), Michel Foucault discusses the transition within Western culture from what he describes as a social model of punishment toward a more subtle, and ultimately more powerful, model of discipline. In a culture shaped by a philosophy of punishment, Foucault argues, those individuals found guilty of crimes were subject to very public penalties, ranging from floggings through the spectacle of public execution by hanging or beheading.
Within the later, ostensibly more civil model, the criminal's body is kept whole but is at the same time wholly isolated within a labyrinthine system of incarceration, the early versions of the modern prison. Rather than punishing the body directly for the crimes that have been charged against it, this disciplinary system repositioned the incarcerated body within a new economy that saw the suspension of freedom as the most effective treatment of the transgressive spirit.
But as Blank and Jensen's documentary play The Exonerated shows, the movement toward a more private model of discipline did not erase the theatrics of punishment totally from the cultural stage. Rather the new model revised the terms by which the criminalized body would be manipulated and, eventually, put to death. Removed from the fields of public vision, executions of Death Row inmates have become orchestrated events overseen by doctors, chaplains, psychiatrists, media representatives, and invited guests. There is, Foucault argues throughout his study, a new morality to the act of execution, and it is one, ironically, that has erased not only the spectacle of the punishment but the opportunity for a final sounding of the victim's voice. Hidden deep within the walls of the prison or removed to a designated outbuilding, the person to be executed body is both silenced and killed. Gone is the opportunity for a final protest or for making amends to the crowd, or for confronting the ironies of the execution proper. All that is left is the official proclamation of the death of the incarcerated body.
It is this echoing silence that The Exonerated seeks to address as it traces the arrest, imprisonment, and eventual exoneration and release of five men and one woman. Presented as a stage reading, with actors seated in a row on stools, their bodies visible behind music stands that hold their scripts, the staging of the play is eerily regimented. Each character's body is carefully partitioned, with each individual in his or her own place, and each place with its own individual. Audience members are positioned, in part, as wardens of this theatrical site, given the power to recognize and monitor the effects of imprecise distributions, sudden movements or disappearances, and to signal breaches of the imagined barriers separating one cell from the next.
Discomforting, too, is the recognition that the audience is sitting in judgment of the bodies themselves, assessing the movements of each individual and calculating its qualities and merits. The functionality of the theatrical space leads organically to the analytical, quasi-judicial organization that positions the audience as watcher, warden, and judge. This unsettling relationship is underscored in some productions by the use of spotlights and the sounds of shots ringing out, cell doors clanging open and shut, and helicopters circling as if in search of an escaping prisoner.
Drawn to the spectacle of the play itself, the audience is cast in an ambiguous role, not unlike those who centuries earlier had assembled to witness the public hangings or listen for the clatter of the guillotine. The audience witnesses the confinements and tortures inscribed in the name of the common good, and they confront the humanity of such measures with their own eyes. They see the bodies of the incarcerated once again raised upon the scaffold of a stage rather than hidden away in Death Row. Whereas hidden executions are, in a sense, privileged executions, this restaging of the incarcerated body forces the audience to take part in both the injustices of the imprisonment and the revolutions of the exoneration. But above all, the audience is drawn closer than ever before to those who have paid the ultimate penalty, to those who Page 105 | Top of Article have given over their bodies to a system implemented to guarantee the safety of those sitting in the seats looking in.
This staging is a reminder of the physical nature of the punishment weighing in upon the characters of five men and one woman, three of whom are African American and three of whom are Caucasian. The regimentation of space is subverted as each person responds emotionally. In one scene, for instance, the character of Sunny Jacobs is delighted when an ensemble actor reads a letter in which her inmate husband Jesse Tafero uses their private coded words to express intimate thoughts. Her reactions are much darker when she recounts the details of Tafero's execution in 1990, two years before the evidence proving his innocence was uncovered.
But as Delbert Tibbs reminds the audience, although bodies are imprisoned, voices are not. Arrested in 1974 and convicted of the murder of a white man and the rape of his young girlfriend in Florida, Tibbs was sentenced to death despite the fact that even his physical description did not match what turned out to be the fabricated story of the female victim. He was, put simply, a body in the wrong place at the wrong time in a punishing culture in which color blindness is a promise yet unfulfilled. A poet in both voice and spirit, Tibbs provides a foundational voice to the various narratives that emerge and blend in the play.
As the stories unfold, the evidence accumulates, exposing both the injustices of the U.S. penal system and the failings of those carcerated. In remembering the judicial proceedings raised against them, many of the exonerated speak, for instance, of the ambiguous physical evidence used against them. Kerry Max Cook, for instance, was the longest tenured Death Row inmate to be freed. Exonerated by conclusive DNA evidence, he carried with him the bodily reminders of prison rapes and suicide attempts. (As he recounts in graphic detail, following one such assault, Cook's attackers carved obscenities deep into his buttocks.) Robert Earl Hayes (convicted of rape and murder) was convicted on the basis of faulty science and was exonerated when suppressed evidence of the assailant's hair was taken into consideration.
As the play moves to its emotional close, the incarcerated bodies of The Exonerated are reimagined as a metaphor of emergence, a resistance to the theatrics of punishment and the regimentation of space that defines the stage. It is a reimagining that collapses the cells that have marked the stage and makes each member of the audience accountable both politically and emotionally for the stories that have been shared and the scars that remain as reminders of the dangerous legacy of punishment.
Source: Klay Dyer, Critical Essay on The Exonerated, in Drama for Students, Thomson Gale, 2007.
In the following review, Gilmore comments on the docu-style presentation and the "relentless first-person testimony" that engulfs observers in The Exonerated, forcing them to examine the play's controversial topic.
After appearing in a recent performance of Jessica Blank and Erik Jensen's documentary drama The Exonerated, actor Ben Vereen signed poetry books in the lobby of New York City's Bleecker Theater. Vereen hadn't written the books himself. The author was the person he portrays in the play, Delbert Tibbs, who spent years on death row. When I bought my copy of Tibbs' Songs Singing Songs, I asked Vereen why he took the role.
"The message is so important," he stated emphatically.
Vereen is not the only famous actor who feels that way. Since The Exonerated began its New York run in October 2002, Tim Robbins, Robert Vaughn, Susan Sarandon, Connie Britton, Brian Dennehy, and Peter Gallagher have all appeared on the Bleecker Theater stage.
Over the past three decades, at least 111 individuals on death row in America have been found Page 106 | Top of Article to be innocent. These men and women weren't freed on legal technicalities or because of lost evidence. They were freed because they didn't commit the crimes that landed them there. Yet somehow, they were arrested, convicted, and sentenced to die, and some came awfully close to execution. Some lost more than 20 years of their lives.
This fall, people across the country will finally be able to see The Exonerated for themselves when the play begins a multicity U.S. tour. Stops include Orlando, New Orleans, Seattle, and even Fort Worth, in the heart of the most efficient state-sponsored killing zone of all, Texas.
The Exonerated is a simple play consisting of six independent stories told in documentary style. Five men. One woman. All were on death row in the United States at one time. Their own words make up the play's script.
"Every word you hear comes from the people represented on stage," a voice announces, and the play begins. Ten high black chairs that look like bar stools are sitting on a dark stage. Eight of them sit in a line flanked by two other chairs elevated on each end of the stage. Ten actors take the seats—some have dual parts—and recount their journeys through life, death, justice, and then back into the world as free Americans. Except for occasional sounds (music, gunshots, jail bars slamming), this is the show. But that hardly suggests the emotional experience that awaits many in the audience.
Playwrights Jessica Blank and Erik Jensen, now married, insist they are actors and not writers. But these two New Yorkers have managed to succeed at the literary genre often described as the most difficult to master.
"We were at a conference at Columbia University in the spring of 2000 in a workshop about the Death Row 10," Blank says, referring to a group of people in Illinois who had been tortured by Chicago police into confessing to crimes they hadn't committed. "We were at the workshop on those cases, and one of the guys on death row calls by phone and begins to tell his story."
In the middle of the call, the prison guards cut the caller off. "It was a very emotional moment," she says. "The whole room was crying."
Inspired to share this wrenching experience with those who might not normally care about such issues, Blank and Jensen began corresponding with former death row prisoners. A few months later, they went on the road to interview 20 former death row inmates who had been exonerated. By October 2000, they had written enough text to try out an early version of the play. They pushed themselves through 17-hour days to offer a series of readings over three nights in New York, but despite a lot of positive feedback, they knew they still had more work to do.
"We realized we had to tell the story more fully," Blank says. Which meant researching the actual trials. She estimates that they read 250,000 pages of court transcripts all over the country. "Every place we visited, everyone thought we were law students," she says. With help from various defense attorneys and others connected to the cases, they eventually spliced together a free-flowing, highly emotional saga detailing the destruction of six ordinary lives.
Aesthetically, the key to The Exonerated is the relentless first-person testimony. Except for the lack of a narrator, the feel of it is like something you'd see on PBS's Frontline documentary series. The stage lights shine upon an actor, who begins to speak, and the knowledge that the words are taken from an interview with a living, breathing person engulfs you.
Given the play's compelling nature, you're apt to quickly forget that the actor is Ben Vereen; you are meeting Delbert Tibbs. Robert Vaughn is Gary Gauger, sentenced to death in 1994 for killing his parents, then exonerated in 1996. Connie Britton is Sunny Jacobs, sentenced to death in 1976, exonerated and released in 1992. As each person's story fades, another resumes, until you're left wondering how the justice system could have broken down so many times.
And the answer is there on the stage as well: overzealous prosecutors, ruthless law enforcement officers, lying witnesses, the deliberate withholding of evidence, coerced confessions, and public hysteria. But in one case after another, the most important source of injustice reveals itself to be the lack of resources needed to provide a proper defense for these hapless people accused of capital crimes.
Eventually, The Exonerated reaches that joyous part where the people portrayed explain how they finally won their freedom. The play stands as a symbol of how America's system of capital punishment is slowly losing its credibility. Death-penalty defense projects around the country are taking on new cases and finding all kinds of problems. DNA technology has freed a number of wrongly imprisoned people. Meanwhile, rising public concern is leading to greater scrutiny, forcing lawmakers and political leaders to move cautiously before they allow someone to be put to death.
The Exonerated accomplishes what a newspaper op-ed piece rarely if ever does: It gets people Page 107 | Top of Article talking to each other about capital punishment. Blank and Jensen report that death-penalty supporters who have seen the play have come up to them afterwards to say they are rethinking their position.
Blank has given some thought to the play's upcoming performance in Texas. She is acutely aware that this is the state where President Bush presided over 152 executions when he was governor.
"It will be interesting to see," she says, "what will happen when the play goes to Fort Worth."
Source: Brian Gilmore, "Spotlight on the Death Penalty: A New Play Sheds Dramatic Light on Death Row Tragedies," in Utne, November-December 2003, pp. 51-53.
In the following review, Stoller notes that audiences were emotionally aroused by the "deeply affecting material" presented by the cast of The Exonerated, a play that exposed the injustices that resulted in the imprisonment and near execution of innocent people.
For their new documentary play, The Exonerated, writers Jessica Blank and Erik Jensen interviewed sixty people who had spent anywhere from two to twenty-two years on death row. Incorporating six of those interviews with court testimony, police interrogation, and personal correspondence, Blank and Jensen have crafted a powerful indictment against the criminal justice system and capital punishment.
The narrative spans the arrest, imprisonment and eventual exoneration and release of five men and one woman—three of whom are African American and three Caucasian. The cases include coercion of suspects to make misleading statements, representation by attorneys who were not disinterested parties, and inconclusive fingerprint evidence. Prison life is presented as treacherous: when one prisoner was assaulted by his fellow inmates, they carved the words ‘good p——’ on his buttocks. Prison held other horrors: exercise had to be taken in a yard where the electric chair was in full sight. After release, some had trouble adjusting: one needed to lock himself in to feel safe, another resorted to drugs to cope with the loss of self. But others were able to form new alliances as well as draw on inner resources to appreciate the riches of life on the outside.
The Exonerated is presented as a staged reading. The primary players are seated in a row on stools behind music stands that hold their scripts. Two ensemble actors who play, among other characters, police interrogators and courtroom lawyers, sit on raised platforms on either side of the group of ex-prisoners and their mates. Although the production apparatus was, of necessity, minimal, director Bob Balaban used light and sound to good effect: creating scenes via spotlights; using sounds of shots ringing out, helicopters circling their prey, and cell doors clanging shut to drive home the fear and terror that these people had lived through. A number of well-known actors, such as Richard Dreyfuss and Jill Clayburgh, appeared in the opening weeks of the play. Susan Sarandon, Tim Robbins, Harry Belafonte, and Gabriel Byrne are reported as being part of a roster of celebrities who will join the cast. By the second week of the production, there were already new luminaries in the lineup.
The Exonerated explains how individuals came to be falsely accused of a capital crime and describes how they coped with years of imprisonment. A would-be poet/philosopher, embodied with great dignity by the sonorous-voiced Charles Brown, says that although "it ain't easy to be a poet here … I sing." In a particularly moving passage, we hear the correspondence between Sunny (in an excellent performance by Jill Clayburgh) and her common-law husband Jessie Tafero, both of whom were wrongfully convicted for murdering two law officers. Their letters to each other, Sunny says, had to be delivered unsealed so that prison authorities could make sure they were not plotting an escape. Using Japanese words, the two develop a code in which they can express their more intimate thoughts. An ensemble actor reads Jessie's letter aloud, and we see Sunny's delighted reactions. She takes what little pleasure she can in jail, because, she says, she's not a lump of flesh you can put in a cage. Sunny eventually shares the horrific details of Jessie's botched electrocution in 1990. David Brown, Jr. and April Yvette Thompson, playing man and wife, provide some comic relief with their repartee. The husband admits that now that he is out of prison, he is restless and reluctant to go home at night, much to the dismay of his mate.
Both the program and an announcement at the top of the show remind the audience that the words of The Exonerated are from real people. Having celebrities portray characters in the play means their past performances and public personas "haunt" the stage, to use Marvin Carlson's term. This creates a distance between performer and character, so that the audience is always aware that the actor is giving voice to the testimony of real people. In a curtain speech the afternoon I saw the play, Richard Dreyfuss made a financial Page 108 | Top of Article appeal for the six ex-prisoners, who were not compensated by the state upon their release. The deeply affecting material had roused the audience's emotions, and as people exited the auditorium they acted upon their empathy, dropping five- and one-dollar bills into a collection basket. Perhaps upon reflection of the issues of injustice that the play had addressed, they will also be roused to take political action.
Source: Terry Stoller, Review of The Exonerated, in Theatre Journal, Vol. 55, No. 2, May 2003, pp. 345-47.
In the following essay, Cohen focuses on Delbert Tibbs, a man wrongly accused and sentenced to death, and his struggle with the legal system and the weak evidence against him.
Few victims of the capital justice system have roused public support the way Delbert Tibbs did when he was sentenced to death in 1974 for killing a hitchhiker and raping the man's sixteen-year-old traveling companion. Tibbs, a young black theology student, was celebrated in song by Pete Seeger and Joan Baez and was made a cause célèbre by the 1960s black activist Angela Davis.
Tibbs's travails began innocently enough when he was hitchhiking his way from Florida back to his Chicago home earlier that year. Nearing Leesburg, he was stopped by a Highway Patrol trooper who said he fit the description of a man who was wanted in Fort Myers. The officer questioned Tibbs and, satisfied that he was not the man they were looking for, let him go. Before releasing him, however, he photographed Tibbs with a Polaroid camera.
A few days later, on February 3, two white hitchhikers, Terry Milroy and Cynthia Nadeau, were picked up by a black man driving a green truck just south of Fort Myers. Milroy was on his way to a job in the Florida Keys and Nadeau was a teenage runaway from Rhode Island. As Cynthia later told it, after a brief ride the driver pulled off the road into a vacant field and stopped the truck. He asked Milroy to come out and help him with something. When Nadeau followed, she saw the driver pointing a gun at Milroy. The driver ordered her to undress, then shot Milroy and raped her.
Police showed her the Polaroid photo of Tibbs, and Nadeau identified him as the man who had raped her and shot Milroy, although he did not fit her original description of the killer. A regional search by police found Tibbs hitchhiking in Mississippi. He was brought back to Fort Myers, and Nadeau picked him out of a police lineup.
Tibbs was tried before an all-white jury. Nadeau's testimony was the guts of the prosecution's case, and it was woefully weak. There were too many questions that had no answers and virtually nothing that would support Nadeau's story. No physical evidence was offered, the murder weapon had not been found, and no witnesses could place Tibbs anywhere near Fort Myers at the time of the crime. Then there was the matter of the truck that was central to Nadeau's account. Where was the truck and how did it figure in the odyssey of a man who apparently had spent much of the past week hitchhiking from Florida to Mississippi? If he had access to the truck, why was he thumbing rides along the highway? The only corroboration of Nadeau's story was delivered by Tibbs's cellmate, who testified that Tibbs had confessed to him while awaiting trial.
Tibbs structured his defense around what appeared to be an airtight alibi: he was in Daytona Beach on February 2 and 3, in Leesburg on the sixth and Ocala on the seventh—each location a long distance from Fort Myers—and he had the documentation to prove it. The defense also sought to impeach Nadeau's testimony, noting that at age sixteen she was already a heavy drug user and had admitted to getting high on marijuana shortly before the crime was committed. It was of no avail. The trial was over in less than three days; the verdict was in an hour and a half later: Tibbs was found guilty of murder and rape. The jury recommended death as the penalty for the murder, and a life sentence was added for the rape.
The appeal process began, and so did the drumbeat of protest and support that came from up north. Tibbs was, after all, not a likely suspect for the random murder and rape of a pair of wayward hitchhikers. He was well educated, an aspiring poet, a veteran of the civil rights struggles of the sixties, and when arrested he was in the midst of a coast-to-coast journey "to experience firsthand the woes and wonders of the world," as a newspaper reporter put it. When he returned, he had planned to finish studying for his degree at the Chicago Theological Seminary.
The basis for Tibbs's appeal to the Florida Supreme Court was that there was insufficient evidence to place him at the scene of the crime. Florida law requires close scrutiny of the victim's testimony if she is the only witness for the prosecution. (The jailhouse snitch, himself a convicted rapist, had already admitted that his testimony was false and was given in the hope of receiving consideration in Page 109 | Top of Article return.) In reviewing the trial court's record, the judges found several weaknesses in Nadeau's story: all available evidence other than the witness's testimony seemed to place Tibbs far from the scene at the time of the crime; a car and helicopter search of the area failed to locate the green truck; the gun was never found and Tibbs had no car keys in his possession when he was picked up; Tibbs had been stopped by police more than once as he hitchhiked his way north, he cooperated each time, and none of the officers who questioned him found cause to suspect his credibility; finally, since the crime took place at night and Nadeau had been high on marijuana, her ability to identify her attacker was diminished. The state supreme court reversed the conviction and ordered a new trial.
The question then raised was whether a new trial would subject Tibbs to double jeopardy, which is prohibited by the Fifth Amendment. Tibbs filed a motion to dismiss the indictment on those grounds. The trial court agreed that retrying the case would violate the defendant's Fifth Amendment protection. The state took the case to the Florida Court of Appeals, which ruled that double jeopardy would not apply since the reversal of the conviction was based on the weight of the evidence presented, not its insufficiency. Had the court decided that the evidence offered, even if unchallenged, was not sufficient to support a conviction, the case against Tibbs would have been dismissed. The legal proceedings moved through the judicial machinery for five years. In June 1982, when the U.S. Supreme Court affirmed the decision of the court of appeals, it appeared Tibbs was headed for a new trial.
Two months later, however, the state decided not to retry Tibbs. The prosecution's case had, in the past five years, evaporated. Cynthia Nadeau had become a confirmed drug addict, making her useless as a witness, and there was no other evidence to be presented to a jury. What's more, James Long, who had prosecuted the case, announced that the original investigation had been "tainted from the beginning" and that if there was a retrial he would testify for the defense.
Since his release, Tibbs has campaigned actively against the death penalty, giving public lectures and testifying at legislative hearings. "It's quite easy," he tells listeners, "to build a case against an innocent man."
Source: Stanley Cohen, "Eyewitness Error," in The Wrong Men: America's Epidemic of Wrongful Death Row Convictions, Avalon Publishing Group, Carroll & Graf Publishers, 2003, pp. 55-59.
Blank, Jessica, and Erik Jensen, The Exonerated: A Play, Faber and Faber, 2004.
——, Living Justice: Love, Freedom, and the Making of "The Exonerated," Atria Books, 2005, pp. 141, 150, 291, 296.
Brantley, Ben, "Someone Else Committed Their Crimes," in New York Times, October 11, 2002, http://theater2.nytimes.com/mem/theater/treview.html?_r=2&res=9906E4DC173AF932A25753C1A9649C8B63&oref=slogin&oref=slogin (accessed September 3, 2006).
Center on Wrongful Convictions, "The Snitch System," http://www.law.northwestern.edu/depts/clinic/wrongful/Causes/Snitches.htm (accessed September 7, 2006).
Cohen, Stanley, The Wrong Men: America's Epidemic of Wrongful Death Row Convictions, Avalon Publishing Group, Carroll & Graf Publishers, 2003, pp. 147, 152-53, 196, 221-23, 265.
Isherwood, Charles, Review of The Exonerated, in Variety, Vol. 388, No. 10, October 21, 2002, p. 43.
Lahr, John, Review of The Exonerated, in New Yorker, Vol. 78, No. 32, October 28, 2002, p. 88.
Peyser, Marc, "Death Becomes Them, Even Off-Broadway," in Newsweek, December 2, 2002, p. 14.
Warden, Rob, "How Mistaken and Perjured Eyewitness Identification Testimony Put 46 Innocent Americans on Death Row," Center on Wrongful Convictions, http://www.law.northwestern.edu/depts/clinic/wrongful/Causes/eyewitnessstudy01.htm (accessed September 7, 2006).
Arriens, Jan, ed., Welcome to Hell: Letters & Writings from Death Row, Northeastern University Press, 1997.
This book is in two parts. The first is a case history of a man named Edward Johnson, who was executed in 1987 in spite of serious doubts about whether he was guilty. The second part is a collection of letters, written to members of the Lifeline organization, in which inmates tell their stories and describe their lives on death row.
Dawson, Gary Fisher, Documentary Theatre in the United States: An Historical Survey and Analysis of Its Content, Form, and Stagecraft, Greenwood Press, 1999.
This is a historical and critical survey of documentary theater in the United States. It defines the genre as a dramatic representation of societal forces using a close reexamination of events, individuals, or situations. Dawson demonstrates that documentary theater is steeped in the oral history tradition and is an alternative to conventional journalism.
Jackson, Joe, and William F. Burke Jr., Dead Run: The Shocking Story of Dennis Stockton and Life on Death Row in America, Walker Publishing Company, 2000.
This is the story of Dennis Stockton, who was executed in 1995 for a murder which, the authors demonstrate, Page 110 | Top of Article he did not commit. The authors draw on extensive interviews, as well as Stockton's own diaries, to reveal rampant corruption within the prison system.
Prejean, Helen, The Death of Innocents: An Eyewitness Account of Wrongful Executions, Random House, 2004.
Prejean is the author of the memoir Dead Man Walking that inspired the Oscar-winning film released in 1995. A long-standing opponent of the death penalty, Prejean tells the story of two men whom she believes were wrongly executed. Dobie Williams received inadequate legal representation at his trial and was convicted of murder even though there was no hard evidence against him. Joseph O'Dell was convicted and later executed as a result of false testimony by another inmate who stood to gain by lying.
Rossi, Richard, Waiting to Die: Life on Death Row, Vision, 2004.
Rossi has been an inmate of Arizona's death row since 1983. In this book, he examines every aspect of life on death row, including medical neglect, inadequate food, and psychological abuse by prison officials.