You’ve been accused of something you didn’t do. Let’s kick it up a notch: You’ve been punished for something you didn’t do. Another notch: You’ve been convicted and jailed for a crime you are truly innocent of.
Now, imagine this:
You have been scheduled for execution. You are on death row. From anywhere from two to twenty-two years.
And you are innocent.
A generous friend treated me to a theatrical experience last night, and it was – I don’t want to use riveting, spellbinding, breath-taking – but it was. Produced by Culture Project in association with Innocence Project, “The Exonerated” will lead you to question our justice system. “The Exonerated” depicts such a situation, based on the harrowing experiences of actual individuals sentenced to death and later released because of overwhelming evidence of their innocence. The actors delivered words from interviews, letters, case files, public records. Intense and profound.
But before I encountered the play, I was held by a lobby exhibit of 10 paintings and drawings, part of artist Daniel Bolick’s “Resurrected: The Innocence Portraits.” The exhibit’s aim is to “give a ‘visual voice’ to the problem of wrongful incarceration.” His work took my breath from me and left in its place a lump in your throat. Check out the artist, Daniel Bolick, at http://www.danielbolick.com/galleries/resurrected/portraits/profiles-exonerated.html.
Jessica Blank and Erik Jensen, playwrights, interviewed over 60 people, 6 of which hold the play together. In 2000 there were 89 who had been exonerated from death row. Today there are 297. And you will find out what happens (or doesn’t) for those who have been exonerated and how reintegration into society is difficult: fear, drug and alcohol abuse, homeless, and even death.
The most sobering thought is that any of us, with the right (or wrong) circumstances, could be one of the exonerated: being in the wrong place at the wrong time; circumstantial evidence; fabricated, skewed altered or withheld evidence; paid witnesses and unreliable eyewitnesses; indigence; witness and police perjury; incompetent counsel; no money for expert testimony; coerced and guided confession; conspiracy between court of appeal judges and prosecutors to uphold conviction of innocent.
“On September 21, 2011, the state of Georgia executed Troy Anthony Davis despite serious doubts about his guilt. The case against him consisted entirely of witness testimony, many of whom stated in sworn affidavits that they were pressured or coerced by police into testifying or signing statements against Troy Davis. Nine individuals have signed affidavits implicating Sylvester Coles, against whom there is physical evidence implicating him as the gunman” (http://www.thepragmaticpundit.com/2011/07/caylee-and-oj-justice-do-we-want.html).
1 percent of the U.S. prison population, approximately 20,000 people, are falsely convicted, and that’s a conservative estimate.
The Innocence Project was founded in 1992 by Barry C. Scheck and Peter J. Neufeld at the Benjamin N. Cardozo School of Law at Yeshiva University to assist prisoners who could be proven innocent through DNA testing. To date, 200 people in the United States have been exonerated by DNA testing, including 14 who served time on death row. These people served an average of 12 years in prison before exoneration and release. The Innocence Project’s full-time staff attorneys and Cardozo clinic students provided direct representation or critical assistance in most of these cases. The Innocence Project’s groundbreaking use of DNA technology to free innocent people has provided irrefutable proof that wrongful convictions are not isolated or rare events but instead arise from systemic defects. Now an independent nonprofit organization closely affiliated with Cardozo School of Law at Yeshiva University, the Innocence Project’s mission is nothing less than to free the staggering numbers of innocent people who remain incarcerated and to bring substantive reform to the system responsible for their unjust imprisonment. According to an Innocence Project report on the first 200 DNA exonerations in the U.S.:
They served, on average 12 years in prison;
11% were 12 years old or younger;
17% were 21 years old or younger;
62% were African American;
35% of false confessions came from those 18 years or younger and/or developmentally disabled.
INTRODUCING THE REAL LIVES DEPICTED IN “THE EXONERATED“
David Keaton was arrested in 1971 for the murder of an off-duty police officer at a Florida convenience store. After three days of relentless interrogation – with threats, lies, and beatings – investigators coerced a confession from him. Although details of the number of participants in the crime, the weapons used, and the location of the “getaway car” differed sharply from the state’s evidence, an all-white jury convicted David and he was sentenced to death. He was 18 years old. Once he was on death row, the case against David quickly unraveled. Journalists revealed that the polygraph operator in his case had a history of extracting false confessions from frightened suspects without lawyers. Fingerprints from the scene and a tip from an informant led prosecutors to the real culprits, who were indicted and later convicted for the murder. David was granted a new trial, but without the confession, there was not enough evidence to try him and the charges were eventually dropped. Ultimately, he spent two years on death row for a crime he didn’t commit. The first man to be exonerated from death row in the United States, David is an outstanding poet and an active member of Witness to Innocence. Danny Glover played him in the motion picture The Exonerated.
Robert Earl Hayes was sentenced to death for the rape and murder of a 32-year-old woman who worked with him at a horse racetrack in Broward County, Florida. The conviction rested in substantial part on the testimony of a witness who claimed to have seen Hayes with the victim and heard her reject his advances shortly before the murder. In addition, the prosecution presented a DNA analysis purporting to link Hayes to the crime. However, the defense attacked the forensic analysis as sloppy and established that several light-colored hairs had been found in the victim’s hands. These could not have come from Hayes, because he was African American. The Florida Supreme Court ordered a new trial on direct appeal in 1995, holding the allegedly incriminating DNA unreliable. New DNA testing was conducted with proper controls. It exonerated Hayes, but the prosecution refused to drop the charges. Hayes was acquitted upon retrial in 1997.
Delbert Tibbs was born in what he describes as Apartheid Mississippi, before the coming of “the King and Mrs. Parks”. He moved to Chicago at the age of twelve with his widowed mother. He attended Southeast City College and Chicago Theological Seminary. After dropping out in 1972, Delbert began what he has described as his “Wilderness Experience”, walking around the U.S.A. That experience jumped to another dimension when Delbert was arrested and charged with rape and murder in Florida. Although Delbert vehemently denied the charges, and although the state was never able to produce any evidence against him, he was tried and found guilty by an all white jury (the victims, too were white) and sentenced to death. A mass movement was organized to fight for his life, spearheaded by his friends and family. Rita Warford, Peete Seeger, Terry Callier and Oscar Brown Jr. and the dancer Darlene Blackburn organized a benefit and raised $ and consciousness on Delbert’s behalf. His case became a cause celebre. Angela Davis and many other outstanding freedom fighters entered the fray. The Florida Supreme Court overturned the conviction but did not order the lower court to cease and desist prosecution. The case went all the way to the Supreme Court. After many legal perambulations, until 1982, The state’s Attorney in Lee County, Fl. dropped the case as he stated that his witnesses’ s credibility would be questionable to a jury. Delbert says that he has always been opposed to Capital Punishment and he became a “dedicated and unmitigated abolitionist against the evil thing”. Delbert began writing seriously and publishing during his “wilderness experience”, and continues to do so. He has published several books of poetry, the most recent being “Song Singing Songs” and “Selected Poems and Other word/Works” . The story of Delbert’s clash with the criminal in-justice system has been powerfully told in the play “The Exonerated”, by Jessica Blank and Eric Jensen. His story is also graphically and artistically told in the mixed media presentation “Barred from Life”, by David Popalisky.
Delbert is a member of the Illinois Coalition to Abolish the Death Penalty and is actively working with “Witness to Innocence”, an organization dedicated to serving the exonerated and abolishing the death penalty. Presently, Delbert is writing his autobiography and speaking about the Death Penalty. He lives in Chicago.
The documentary play “The Exonerated,” by Jessica Blank and Erik Jensen, tells the true stories of six wrongly convicted death-row inmates, culled from interviews, court transcripts, and other primary sources. One of them is Sonia “Sunny” Jacobs, who was arrested in 1976, after she and her partner Jesse Tafero were caught in a roadside gunfight in Florida that left two officers dead. Jacobs, Tafero, and the driver, Walter Norman Rhodes, Jr., were convicted of murder. After seventeen years of incarceration, Jacobs was freed. Since “The Exonerated” premièred, in 2002, Jacobs has been played by a number of actors, including Jill Clayburgh, Mia Farrow, Susan Sarandon, Brooke Shields, Marlo Thomas, and Amy Irving. This week, she steps into the role herself, for the play’s tenth-anniversary production, at the Bleecker Theatre. Jacobs answered our questions about capital punishment, the difficulties of playing herself, and finding love with another death-row survivor.
One night in April 1993, someone slit the throats of Gary Gauger‘s elderly parents on their farm near Richmond, Ill. It was bad enough for Gauger to learn of his parents’ violent death, but it turned out that his nightmare was just beginning.
Gauger told police that he was asleep on the property when his parents, Morris, 74, and Ruth, 70, were killed. But the police didn’t buy it, and brought him in for interrogation. After 21 hours of questioning, Gauger broke down and confessed to a crime he did not commit. Though police had no physical evidence against him, the confession was enough to persuade a jury to convict him of double murder. He was sentenced to death.
Two years later, in an unrelated federal investigation, surveillance tapes captured a member of a motorcycle gang bragging about how he and another gang member had killed the Gaugers. The gang members were later convicted of the murders and other crimes, and Gauger was freed in 1996, after spending three years behind bars. Every year, thousands of criminals are convicted on the basis of confessions obtained from police interrogations. Experts say law enforcement interrogation techniques are so effective that they can break down the most hardened criminal — and even people who are innocent of the crime they are being accused of. Experts believe there have been hundreds of cases where innocent men succumbed to interrogation and confessed to crimes they did not commit. “You take someone who is vulnerable, like a grieving family member or someone who isn’t used to being confronted by police,” says Rich Fallin, a former Maryland police officer who specialized in interrogations, “If interrogated long enough, they’ll probably confess.”
During his interrogation, Gauger says, he kept denying any involvement with the murders. But he says police told him they had evidence. He mistakenly assumed police would not lie to him, an assumption often made by innocent people undergoing interrogation, according to experts. “They told me that they had found bloody clothes in my bedroom; they found a bloody knife in my pocket,” says Gauger, who never asked for an attorney, because he felt he had nothing to hide. At about 1 a.m., he says, the interrogation turned ugly. Police showed him gruesome crime scene photos of his dead parents, sending him into an emotional freefall. The combination of losing his parents and being told by police repeatedly that he was a liar and killer was just too much. “I was emotionally distraught, looking at these people for help,” he says. “They wouldn’t stop the interrogation. I was exhausted. I gave up.” Though Gauger had no memory of the crime, he ended up believing what police told him. “I thought I must have done it in a blackout,” he says. None of what Gauger described surprises Fallin. “They’re kept in an interview room, in a cold interview room, with very little clothing on for hours and hours,” he says, adding that people are often not given anything to drink or allowed to use the bathroom while being interrogated.
The detectives who interrogated Gauger refused to be interviewed by ABCNEWS, but their lawyer in Gauger’s ongoing lawsuit denied that police lied.
“I believe that the circumstances surrounding the interview of Gary Gauger were completely appropriate,” says Jim Sotos, a defense attorney for the police, who is still trying to raise doubts about Gauger’s innocence, even though another man is in jail for the crime.
In this death penalty case, the accused faced a dramatic choice: He could accept a guilty plea with an immediate release, or he could go to trial and face possible execution Kerry Max Cook was arrested in August 1977 when he was 21 years old. He was charged with the brutal murder and rape of 21-year-old Linda Jo Edwards, in Tyler, Texas. One year later he was tried, convicted and sentenced to death. After 13 years on death row where he was abused and raped and twice tried to commit suicide — the second time leaving a note saying “I really was an innocent man” — his sentence was reversed, based on a technicality. That’s when Paul Nugent became his lawyer. The new trial, with a new D.A., took place in 1992 and resulted in a hung jury. The state then retried the case once more. The death penalty was reinstated. Then, once again in 1996, the Texas Court of Criminal Appeals reversed the conviction. The court also published a scathing critique of the conduct of both the police and prosecution going back to the first trial in 1978. They wrote that the investigation was intentionally misleading, the testimony of the key witness, Robert Hoehn, was prejudicial, and the first conviction was obtained. The state then retried the case once more. The death penalty was reinstated.Then, once again in 1996, the Texas Court of Criminal Appeals reversed the conviction. The court also published a scathing critique of the conduct of both the police and prosecution going back to the first trial in 1978. They wrote that the investigation was intentionally misleading, the testimony of the key witness, Robert Hoehn, was prejudicial, and the first conviction was obtained through fraud and in violation of the law. Even the then-new first assistant D.A., the man who fiercely prosecuted Cook in the last two trials, David Dobbs, agreed with the court of appeal’s critique, telling FRONTLINE that Cook’s prosecution “was mishandled from the start.” Yet that didn’t deter Dobbs from continuing to press for Cook’s prosecution. Dobbs wanted to use the final chance of a fourth trial to convict Cook. But this time he had to do it without the testimony of his key witness. As Dobbs told FRONTLINE, “The Texas Court of Criminal Appeals … had ruled that we could not use the testimony of the man that was with Mr. Cook just prior to the commission of the offense, based on prosecutorial misconduct that had taken place in the 1970s. Without that testimony we could not place Mr. Cook at the crime scene the night that the actual capital murder took place.” The irony was that the testimony of the witness, Robert Hoehn, who had died in the meantime, was the example cited by the Texas Court of Criminal Appeals as prejudicial and contradictory. The prosecutor weighed his options. He could go to trial with what he felt was a weak case. He could try to get Cook to take a guilty plea. Or he could dismiss the case.
Dobbs offered Cook a plea — plead guilty to time served and he would get out and his case would be over. Nugent, Cook’s lawyer since 1991, told FRONTLINE, “Kerry looked me in the eye and said, ‘I want to be free, I want this behind me, but I will go back to death row, I will let them strap me to the gurney and put the poison in my veins before I lie, before I plead guilty.'” With Cook refusing to plead guilty and the prosecutor afraid to lose the trial but not willing to dismiss the case, there was one more possible option. The Supreme Court decided in 1970 that the Constitution allows for a defendant to make a deal and plead guilty, while still maintaining his innocence. Such a plea is called an Alford Plea or a “no contest” plea.
The prosecutor felt he had little choice. He offered Cook the no contest plea, which means that Cook can maintain his innocence while knowing the court has convicted him. It is the only time it has ever happened in a death penalty case in Texas. “It was the hardest decision we’ve ever had to make,” says Dobbs, “but unfortunately, we were faced with the choice of doing something that would ensure that he was convicted of murder, or running a very, in my opinion, substantial risk that without the testimony of Bob Hoehn he would walk the streets free from this.” Paul Nugent says, “They couldn’t admit they had made a mistake, they couldn’t admit that perhaps the State of Texas almost executed an innocent man.” Cook had to make his decision. He told FRONTLINE, “Paul Nugent said, ‘We could win it Kerry, I think you will be acquitted this time.’ And I heard that before. I gave them 22 years. I just didn’t want to give ’em anymore. Too much.” Cook took the no contest plea.
Two months after Cook took the no contest plea and 22 years after the murder, the results came out of a DNA analysis of a semen stain found on the victim’s panties – panties which had been discovered prior to the scheduled date of the fourth trial. The DNA did not match Cook’s. The prosecution says the finding was not exculpatory and that Cook was and remains guilty. Says David Dobbs, “The important thing for us was to insure that he got a conviction for murder that would follow him for the rest of his life.” Cook feels the conviction does follow him. Married and with a young child, he says the state of Texas granted him his freedom, but neither his dignity nor piece of mind.
“Say one of my tail-lights goes out, and I’m unaware of it and the police pull me over,” he explains. “They run that license plate and first of all, they don’t get out of their car until they’ve got two or three more backups. I’m sitting there waiting, look in the rearview mirror, saying I know what’s going on, but I wonder how bad this is going to be, because I’m Kerry Cook with a capital murder conviction, so let’s get out and spread ’em. ‘Do you have any knives, have any guns, have any drugs…?’ I don’t have any rights left. It’s a very very traumatic ordeal. So, you know, was it worth it? Sometimes when I’m holding my son I can say yes. Sometimes, when I’m by myself, I say no. They won.”
Me, I’m still thinking about “The Exonerated” and its implications.