A DISCUSSION OF LAW AND JOURNALISM

A Stacked Game of Cards

By José I. Ortiz

Autumn’s here, and with it, the Forum on Law, Culture and Society’s annual Film Festival at Fordham Law School. Coincidently, I  attended a film screening at this festival on the same date (October 22) last year. I found a seat (not easy in the filled-to-capacity room) and prepared for what was in store for me this time. I had never even heard of the evening’s film – “The Exonerated” – before seeing it up on the festival’s website.

Before long, Thane Rosenbaum — the film festival’s lively emcee and moderator of the post screening discussion — welcomed us and told us a bit about the film, which helped explain why I’d never heard of it: it was produced by and aired on a now defunct cable network, CourtTV. “Oh boy,” I thought. “This won’t be any good.” I was so wrong.

As the film ended, Professor Rosenbaum’s opening quote – a theme for the evening – resounded in my mind: “It is better that ten guilty persons escape than that one innocent suffer.” He also introduced us to the panel: Susan Sarandon, the Academy Award-winning actress of the film, triple threat (actor, writer, and director) Bob Balaban, and Sonia “Sunny” Jacobs, one of the exonerated in the film, played by Ms. Sarandon.

“The Exonerated” is very simple: a stark black background props up the actors as they, often quite poetically, recite actual words spoken or written, in interviews, court records, or letters, by the characters they represent. A guitar plays in the background. That’s it.

And that’s more than enough for a powerful punch of a film. The very successful off-Broadway play version of the film on which the movie was based was also directed by Mr. Balaban in the same style.

Kerry Max Cook, Gary Gauger, Robert Earl Hayes, David Keaton and Delbert Tibbs were the five convicted men, who were later exonerated. The fifth subject of the film is Ms. Jacobs.

All the stories were tragic.

The men featured in “The Exonerated” faced harassment and racism by law enforcement officials, and some endured even brutal sexual assault while in prison.

Mr. Gauger’s story in a nutshell: After discovering the brutally mutilated bodies of his parents and calling the police himself, he was taken into a local police station and questioned. Asked to tell the interrogating officers how he would have killed his parents had he killed them, Mr. Gauger — confused, frightened, and exhausted — hesitantly concocted a story. He was convicted without any facts tying him to the murders which he, in fact, had no part of, and faced the death penalty before being exonerated.

Ms. Jacobs’ story is chilling, too. In 1976, both she and her common law husband were wrongfully convicted of killing two police officers and sentenced to death by electrocution. She didn’t kill them, and played no part in the murders.

In her own words: “When I went into death row I was a wife, a mother of two small children and a daughter. When I got out 16 years later, I was a widow, an orphan and a grandmother.”

The room was visibly moved by her story, and the discussion turned to the weaknesses of our justice system.

Mr. Balaban pointed out that in other parts of the world, the criminal justice system does not have a prosecutor pitted against a defendant, with one side emerging a winner. In civil law countries like France and Italy, the criminal system is considered inquisitorial rather than adversarial. An independent fact-finder seeks the truth – and it’s the truth, not a win by either side, that is sought, above all. Likening the way that prosecutors around the country often withhold inconvenient evidence imperative to a defendant’s freedom to cheating in a card game, Ms. Jacobs said, “I wouldn’t even play cards with people like that” – no sane person would, I expect.

According to Amnesty International, 130 people have been released from death row since 1973 after evidence of their wrongful convictions came to light. In its 2012 factsheet, Amnesty International points out that over 141 countries in the world have abolished the death penalty. The U.S. shares the stage for top-five executioners worldwide with China, Iran, North Korea and Yemen. It’s not hard to believe Mr. Balaban when he says that on at least one occasion, a prosecutor has approached him after watching the play of “The Exonerated, ”and vowed to quit his job rather than partner up with injustice.

With the help of law students at Northwestern University, Ms. Jacobs was able to appeal her conviction and was eventually released from prison. She was the only one of the six featured in “The Exonerated” to not, strictly speaking, be exonerated. She was offered an Alford Plea in exchange for her freedom; she can never sue the government for anything related to her wrongful conviction.

These days, all three guests on the panel consider themselves activists in the anti-death penalty movement. After costarring in the 1995 film, “Dead Man Walking”, Ms. Sarandon found what she describes as her “niche.” Today she often speaks to large crowds about abolishing the death penalty and other proposed reforms to the U.S. legal system. Mr. Balaban calls his work with the play and film versions of “The Exonerated” a “labor of love.” The play is still performed in high schools and community theaters nationwide.

Ms. Jacobs and her husband, Peter Pringle, are also active in the anti-death penalty movement. They have set-up a website dedicated to their work which includes teaming up with law school programs that help the wrongfully convicted and providing those who are released with an assisted transition back into society — Ms. Jacobs knows from experience how helpful this would have been to her.

When our justice system is so fallible, why do we — alone among Western countries — permit the death penalty? Is it to prevent crime? According to FBI data, states in the U.S. without the death penalty have had a lower homicide rate than states that permit the death penalty, for almost two decades now. Maybe the death penalty helps victims’ families feel better? Ms. Jacobs has met with many victims’ families who say it doesn’t. Not even a bit.

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