Neetika Vishwanath

Introduction

Ava DuVernay’s ‘When They See Us’ left me in tears both the times I watched it—the first time soon after its release in 2019 and more recently, for writing this paper. As a criminal justice lawyer in India for nearly a decade, being privy to many stories of deep injustices of persons on death row, the gut-wrenching impact this docu-drama miniseries had on me, not once but twice, took me by surprise. Perhaps, this speaks to the power of visual media and more so, this particular creation.  Though I suspect a significant part of it is also attributable to the potency of the innocence narrative that lies at the core of this series. In times when the public discourse is reasonably infused with the New Jim Crow perspective, there are few things that hit as hard as the wrongful incarceration of five black teenagers—Korey Wise, Anton McCray, Raymond Santana Jr., Yusef Salaam, and Kevin Richardson. However, the lawyer in me cannot help but be troubled by the ways in which, unintentionally, the series legitimizes harsh punitive responses for persons who are guilty of aggravated sexual offenses. And, in doing so, lends support to a broken criminal legal system. Nonetheless, the portrayal of police interrogations and the making of seemingly voluntary statements out of forced taped confessions holds transformative potential in challenging the common sense understanding of videos as objective truth.

This paper is divided into three parts. In the first part, I present the limitations of subsuming complex social problems like sexual violence against women into the dramatic linearity of the criminal legal system. I argue that, in its focus on the innocence of the teenagers, the series unintentionally bolsters retributive feelings towards guilty persons. And in doing so, legitimizes harsh punitive responses to sexual offenses. The second part focuses on the innocence narrative and argues that raising crucial criminal justice issues within the innocence narrative takes away from the seriousness of these issues in and of itself, independent of the fact of innocence. In this section, I discuss the show’s portrayal of the impact of sex offender registry system on Raymond Santana and Yusef Salaam. I also discuss actor Jharole Jerome’s portrayal of the solitary confinement and inmate violence inflicted on Korey Wise. The last part presents what I consider the most compelling way in which the series contributes to making the public discourse on the criminal legal system richer. I argue that the show’s portrayal of how the legal system transforms forced confessions into seemingly voluntary confessions does a terrific job of busting the myth associated with the objectivity of videos. Finally, I conclude reiterating the limitation of the innocence narrative in crime drama and argue that every filmmaker must be driven by an “ethic of responsibility” and consider the intended and unintended consequences of their project before venturing into it. A series like ‘When They See Us’ with its massive public outreach makes it even more incumbent upon the filmmaker to have considered all perspectives.

Ideal Victim and the Diabolical Rapist

Given the self-evident nature of the innocence of Korey Wise, Anton McCray, Raymond Santana Jr., Yusef Salaam, and Kevin Richardson, as a viewer, you are rooting for them from the very beginning of the show. The injustice inflicted on them is so blatant that it is easy to miss out on aspects of the show that, in its attempt to portray innocence, subconsciously legitimize feelings of vengeance towards ‘real’ sexual offenders. As a viewer, the anxiety of prosecutor Linda Fairstein to “release these animals” and “put them back on the street” seems unwarranted because we know that these are innocent black teenagers who have been framed by the system. In fact, the Central Park Joggers case is the perfect example of a sexual violence case in the public imagination where a perfect victim is brutally raped by strangers. As a result, it seems perfectly reasonable to refer to the case as one of the most horrific crimes the city has seen. However, contrary to popular understanding, stranger violent rapes form a very small part of sexual violence against women and children. Most perpetrators are not unknown ‘demons’ but persons well-known to the victims. Kristen Bumiller and Aya Gruber’s work demonstrates that historically in the United States infamous stranger rapes of White women have driven rape law reforms and justified movement towards a punitive criminal legal system.

Where’s the line for Patricia? Left for dead in the cold, in a pool of her own blood, running out of her body minute by minute in the fucking bushes. She feels herself draining away? Where’s the line?

Perhaps the reason the above-mentioned words from prosecutor Linda Fairstein feel unjustified at that moment in the show is that they come in response to Elizabeth Lederer questioning her for pursuing the case with no evidence against the teenagers. Nonetheless, these words in conjunction with the victim Patricia Meili’s presence in the courtroom in a subsequent episode, in a visibly painful and traumatic shape, and the display of her blood-soaked clothes evoke a strong sense of revulsion towards the crime and in doing so, feelings of hatred and vengeance towards the real perpetrator who has gone scot-free. It is not just the legal system’s acceptance of the innocence of the teenagers but also the accompanying confession of the crime by Matias Reyes that offers complete closure to us as the audience. We feel vindicated knowing that justice has, in some sense, been done by getting the innocent teenagers (now adults) out of the system and having the real offender finally pay for his crime.

The fact that the journey of a brutal rape ends with (as expected) a visibly cold-blooded criminal left me feeling deeply uncomfortable. Of course, those were probably the facts of the case but I did wonder if the dramatization of Reyes’ narration of the crime or his blank cold stares into the camera could have been avoided. By complying with our public imagination of an ideal rape victim and cold-blooded heartless rapist, the series is complicit in reinforcing some strongly held rape myths.

What does innocence obscure?

In the third episode, we are offered an insight into the lives of Raymond Santana, Kevin Richardson, Yusef Salaam, and Anton McCray after their release. The dominant theme in this episode is the inhumane nature of the sex offender registry that continues to impact their lives even after they have served their sentences. In a conversation between Salaam and his hairstylist, both the viewers and Salaam are first confronted with the all-pervasive effect of the registry on the lives of formerly incarcerated sexual offenders. Salaam’s facial expressions as he realizes that he cannot be a teacher, followed by the hairstylist’s lines that “once you’ve been inside, man, they got you. And they keep you,” really pack a punch. Santana’s frustration of not finding a job is palpable and his decision to sell drugs till he can find a stable option seems justified. We get a glimpse of how people’s circumstances can force them into doing things they otherwise would not. Social stigmatization, loss of relationships, employment, and housing, and both verbal and physical assaults are common occurrences in the lives of people on the registry. However, in light of the overbearing nature of the innocence context, the viewer misses the opportunity to solely consider the cruel nature of the sex offender registration system. I could not help but think if a registry would seem as unjust to a lay audience if these boys were in fact guilty of rape. Given the abhorrence that sexual violence invokes, it is not hard to believe that the suffering of these young men appears cruel and unfair only because they are innocent.

Similarly, I was left unsure about the portrayal of solitary confinement and inmate violence inflicted on Wise within the domain of innocence. Jharrel Jerome as Korey Wise was the strongest performance in the show for me. The intensity of suffering in solitary confinement and the looming fear of being abused by inmates makes the third episode an extremely difficult watch. Despite having heard multiple similar accounts of death row prisoners in India, the visual portrayal of the experience shook me.  As a viewer, I felt that gush of air with actor Jharrel Jerome when the air conditioner was switched on. The banality of violence inflicted on him and the slow degradation of his mental health made me uneasy. Despite what I thought was a stunning portrayal of solitary confinement and prison inmate violence in a mainstream show, I could not help but think if a lay audience would be equally moved by these parts if the larger context of innocence was missing. Solitary confinement and inmate violence especially on sexual offenders is not a rare phenomenon. For a mainstream series to venture into these extremely unpopular issues especially the sex offender registry is brave but I believe these problems are better told without the context of innocence. They are problems in and of themselves and not because they are being inflicted on innocent people.

In addition to diluting the seriousness of criminal justice issues by presenting them as a part of the innocence narrative, a sole focus on innocence also conceals the complex social realities in which crimes occur.  Focus on questions of guilt and innocence obscure more than they reveal. They deflect attention away from structural factors that contribute to criminality. And, doing so also undercuts the concept of mitigation which forms the basis of the criminal sentencing process. Mitigating circumstances like poverty, age, socio-economic background have a bearing on a person’s decision-making abilities and consequently impacts their culpability for a crime, regardless of their guilt.

Crime dramas that exclusively focus on questions of guilt/innocence completely hide one of the most arbitrary aspects of the criminal legal system— sentencing. By getting the viewers so invested in the innocence of the accused, ‘When They See Us’ only postpones our retributive feelings towards the real perpetrator. It does little to make us question our role as a part of society in promoting attitudes that perpetuate and sustain sexual violence. Pooja Rangan and Brett Story claim that “documentary media, true crime, and criminal justice reform collaborate on what we call the innocence problem.” They argue that “the problem with innocence is the support it lends to a punitive carceral state, as categories of innocence, even relative innocence, reify guilt as justification for often severe punitive action.” This holds especially true for violent stranger rapes—crimes that are considered most heinous in the public imagination.

In his article titled ‘Law Frames’, Richard Sherwin’s claim about the “ambivalence” that legal stories create and thereby move away from complexity further substantiates my argument. He states: “What if the modernist penchant for dichotomies that produces starkly polar choices like guilt/innocence, frameup/frameup undone, injustice/injustice corrected— the very mindset that gives us such satisfaction in seeing justice’s scales finally balance—were part of the problem?” I agree with Sherwin’s suggestion that “the simplicity of these polarities, and the calm they induce, are at least partly responsible for making us leave out things.”

My purpose here is not to argue that a filmmaker necessarily needs to account for all the perspectives and actively disengage with innocence. In fact, I am not making any suggestions. I am simply adopting a cost/benefit distributional analysis of the innocence narrative rooted in critical theory. In a public discourse devoid of any real understanding of criminal justice issues, the striking nature of the innocence narrative may be a good starting point. But the question remains: does it undercut many more serious concerns in this process? Any filmmaker who wishes to make a crime drama inevitably has to confront these questions.

Video Confessions: Manufacturing Voluntariness

Despite my discomfort with an innocence-based crime drama like ‘When They See Us’, I found the show’s portrayal of the police interrogations very compelling and subversive. The pain, exhaustion, and desperation of teenagers after hours of interrogation that leads them to finally agree with the police because they can no longer bear to be in that situation and will do anything at that moment to escape it, is an extremely accurate representation of the routine nature of police interrogations that are followed by involuntary confessions. We see how the police intimidate suspects, ask leading questions and force words out of their mouths. However, the subversive aspect about this piece in this series is that, as viewers, we get to see not only the context in which these forced confessions are videotaped but also their edited, transformed, and seemingly voluntary versions that are presented as evidence in the courtroom. Our experience, as viewers, is in sharp contrast to Justice Antonin Scalia’s position in Scott v. Harris (2007) where he states that “we are happy to allow the videotape to speak for itself.” In this case, the Supreme Court decided against a trial to decide Victor Harris’ claim that the Georgia county police in high-speed car chasing had intentionally rammed into his car. The legal issue was whether the force used by the police was reasonable. Having seen videos from cameras mounted on the two police vehicles that chased Harris, the Court held that video speaks for itself and there was no need for a trial.

The Court’s approach in Scott v. Harris can be best described through Neal Feigenson’s “naive realism.” According to Feigenson, naive realism is “a common-sense attitude towards pictures [which] tends to make people overconfident in their interpretations of visual evidence and less receptive to alternative viewpoints, as well as to entrench the effects of other, first-order biases.” Despite a “relatively sophisticated visual culture,” Feigenson claims that “naive realism about pictures remains a common and psychologically powerful default.”

Considering that there was no evidence connecting the teenagers to the crime, the videotaped confessions played a pivotal role in the trial. In its detailed treatment of the circumstances that led to the confessions and their subsequent fabrication, ‘When They See Us’ challenges the dominant notion that a film is objective and unambiguous. The legal purpose of a videotaped confession is to protect the defendant’s constitutional rights against self-incrimination. Contrary to its objective, as shown in the series, rather than being a “defendant-friendly legal tool,” a filmed confession “forecloses the possibility of a not-guilty verdict.” As Sibley states: “the practice of filing interrogations and confessions does not help defendants (contrary to the stated policy intention), but sinks them.” In its disruption of our common sense understanding of videos as indisputable evidence of the objective truth, ‘When They See Us’ holds subversive potential.

Conclusion        

There is nothing that hurts our most crudest intuitive sense of justice as much as the wrongful conviction of teenagers from a historically marginalized community. But it is precisely this logic that, for me, takes away from the merit of ‘When They See Us.’ Innocence-based crime dramas in their aim to present individual stories of injustice can undercut deeper criminal justice issues. Given the power of visual media in conveying ideas, it is very important that these ideas are carefully chosen. More so, when dealing with issues as complex as crime and punishment. A filmmaker must necessarily be guided by an ethic of responsibility in this decision-making process and account for unintended bad consequences. It is not sufficient to be guided by good intentions.

Do bipartisan reform efforts that hinge on innocent stories protect the innocent, or do they produce a class of innocent in whose name violence can be done? (Rangan and Story)

The author is with Project 39A, National Law University, Delhi, and is currently pursuing an LL.M. degree at Harvard Law School. This article was first written for a course titled ‘Seeing Criminal (In)Justice: Examining the Interplay of Visual Media, Storytelling and Criminal Law’ by Professor Rebecca Richman Cohen at Harvard Law School.

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