“The representation of the wrongly accused” Aesthetic strategies in the juridical-crime documentary.

Master Thesis University of Amsterdam MA Television and Cross-media culture Supervisor: Markus Stauff Second reader: Toni Pape

Tanja Bliek 5824079

First Version: June 26 2015 Words: 19.526

Table of Contents

Foreword

Introduction 3

(1). Narratives of injustice 7 1.1. Flawed Trial 7 1.2. Truth claim 13 1.3. Convenient Scapegoat 17 1.4. Structure and narration 24

(2). Evidence and representation 32 2.1. Official Testimony 34 2.2. Performativity 39

(3). Trauma as mass entertainment and the witnessing of suffering. 46

Conclusion 53

Bibliography

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Introduction

In the United States alone there have been at least 1.133 people wrongfully convicted, according to the National registry of exonerations (June 4, 2013), since 1989. The number of exonerations of wrongfully convicted men and women is growing immensely since the introduction of DNA testing has been used to establish innocence. The number of the wrongfully convicted appears to be far greater than ever anticipated and its total numbers are still climbing. But as the death sentence is still being employed in some states in America, exoneration may come to late for some few. The growing numbers of wrongful convictions together with the felt injustice of wrongful incarcerations has sparked a powerful reaction, especially in the documentary world, as they react to the injustices of the American justice system. The documentary rise against the wrongfully incarceration of innocent people can be seen to start with the Thin Blue Line documentary by Errol Morris (1988). This documentary has shown very demonstratively the workings and failings of the American justice system and has left its mark on the (documentary) world. In this documentary Morris interviews the eyewitnesses, police officers, lawyers and bystanders, as well as the main suspect(s). Through firm and thoroughly investigation of evidence and the testimonies of the several witnesses Morris lets actors re-enact every possible scenario of the murder on the police officer. In the end the film successfully argued the wrongful conviction of the suspect for the murder of a police officer, by a corrupt justice system in Dallas, Texas. With the emergence of several related documentaries, like Murder on a Sunday morning (2001), Staircase (2004), After Innocence (2005), The trial of Darryl Hunt (2006), the Paradise Lost trilogy (1996, 2000, 2011), The Confessions (2010), Central Park five (2012) and many more, there has been more and more attention to the cases of the wrongly accused. All these documentaries are situated within the tradition of a cinema of social concern. The main goal of these kinds of documentaries is to highlight reality and social problems in order to instigate change within society. All these documentaries are based within the crime-juridical documentary genre, whereby their goal is to highlight social problems within the criminal justice system. Their emphasis lies on the possible alternative versions of the crime, the discrepancies within the

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justice system, and the overall social problems within American society. By addressing these issues the documentaries want to bring public attention to the injustice of the wrongfully accused and possibly derive a different outcome within the crime cases. The question of truth is central to these documentaries and their pursuit of their subjects. This leads to ‘feeding a strong, cultural desire to access a terrible, unbelievable ‘real’, according to Horeck (151). Documentaries behold within them the implicit concept of an ultimate truth claim. Within this specific documentary genre, namely the crime-juridical documentary, the truth claim is even more important through their common goal of delivering and unveiling another version of the truth, by going against the established truth claim of the American justice system. The rise of the crime-drama-juridical documentary, with its specific goal of revisiting an established truth, is an especially interesting genre. In my thesis I want to look at the construction of true crime representations that lay claim to authenticity, and use films that question the represented truth in court cases. I am interested how these films can question the power of the American justice system and possible reinterpret/represent another narrative. Diverse aesthetic strategies and techniques are used in order to portray the criminal court cases, the convictions and the subsequent exonerations. Within this thesis I would like to research how different aesthetic procedures, like sound, image, narrative, editing, music and camera use, are being used throughout the documentaries and how they differ or bare similarities between the documentaries, by looking at the narrative structure, the presentation of evidence, pictures, archival footage and testimonies. I would like to research which strategies are used in combination with the concepts of the representation of evidence, narratives of injustice and visual spectacle. All these documentaries deal with the similar problems regarding the wrongly accused, but how is this represented through the documentaries? Do they all use the same approach, or do they convey different techniques and styles? How do aesthetic procedures enable documentaries to present an alternative truth? The Thin Blue Line has shown the possibility to present an alternative version of the truth and has countered the truth already established within the American justice system, through re-enactment. I want to expand the research on possibilities for the crime-juridical documentary to show these alternative

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truths by looking at other documentaries within this genre (i.e. crime-juridical documentaries). I have chosen the documentaries Paradise Lost, Murder on a Sunday Morning and The trials of Darryl Hunt as they all show a different exoneration case. The documentaries that are employed throughout this thesis all behold the narrative of the wrongly accused, although from very different perspectives, angles and time periods. All the documentaries have received critical acclaim and media attention. The Paradise Lost trilogy consists of three different documentaries made by Joe Berlinger and Bruce Sinofsky; Child murders at Robin Hood Hills (1996), Revelations (2000) and Purgatory (2011). Berlinger and Sinofsky have previous worked together on the critically acclaimed documentary Brother’s keeper (1992) and Metallica: Some kind of monster (2004). The Paradise Lost trilogy looks at the murder of three young boys; Christopher Buyers, Michael Moore and Stevie Branch in West Memphis, Arkansas. These murders lead to the imprisonment and conviction of three teenage boys; Damien Echols, Jessie Misskelley and Jason Baldwin, based on questionable evidence in the first documentary. Throughout the trilogy the innocence of the three convicted men is proven. The Paradise Lost series have received many prices, including several Emmy’s for outstanding informational programming and even an Oscar nomination. Through the work of Sinofsky and Berlinger the case of the West Memphis three has received tremendous attention especially after the release of the first film, which lead to many followers and has contributed to the media attention and ultimate exoneration of the convicted three, which they show explicitly in the second and third film. The Trials of Darry Hunt (2006), directed by Ricki Stern and Anne Sundberg, is a documentary regarding the wrongful conviction and 20 year incarceration of Darryl Hunt for his wrongful conviction of the murder of Deborah Sykes. The Trials of Darryl Hunt encompasses twenty years of cinematographic material until the release of Hunt in 2004, through the confession of the real killer Willard Brown. Stern and Sundberg have started filming from 1993, 10 years into the criminal trial, after they heard of the rumours of alleged innocence of Hunt. The Trials of Darryl Hunt was released two years after the acquittal of Darryl Hunt. Sundberg and Stern document the trials and tribulations that Darryl hunt had to endure during his twenty-year incarceration.

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Murder on a Sunday Morning (2001), originally released as Un Coupable Idéal, directed by Jean-Xavier de Lestrade, also known off The Staircase (2004), looks at the criminal court case against Brenton Butler. Butler, 15 at the time, is accused of killing an elderly, female tourist, through positive identification of the victim’s husband and a (coerced) confession of Butler himself. De Lestrade follows the Butler’s defense team as they are building their case and try to prove Butler’s innocence, from the opening statements of the court case to the exoneration of Butler and the accusation of the ‘real’ killer through DNA evidence. De Lestrade received an Academy Award for Murder on a Sunday Morning.

In part one I; Narratives of injustice I will look at the narrative that is constructed throughout the different juridical documentaries. The concept of the flawed trial, as given by Jessica Henry, looks at the six elements that are at the base of the wrongful convictions throughout the United States. These elements will give an insight into the narrative of the documentaries, from a juridical standpoint. The notion of the truth claim of the documentary is used as these documentaries go against the existing truth claim within the depicted court cases. Their truth claim is thus considered to be the rightful one. Looking at the concepts of the Pharmako-logical panic and the scapegoat further extends the narrative chapter. These two concepts bring attention to the justification of the accused men as scapegoats. To finish the chapter I will look at the overall, narrative structure that is used throughout the three documentaries. Within this chapter I would like to emphasize how the flawed trial, the scapegoat concept, the documentary truth claim and its narrative structure are all interrelated and specific for this type of documentary; the juridical-crime genre. In the second chapter Evidence and representation I will look more specifically at how the narrative is substantiated visually and audible by looking at the several testimonies that are used throughout the documentaries. In the first part of this chapter two forms of testimony are being examined, the testimony before the camera and the ‘official’ testimony within court. The testimony before the camera will further lead into the performative testimony, as the official testimony explains the use of editing to discredit or enhance the statements made.

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In the third and final chapter I will look at how the narrative works through and for its audience, by looking at the witnessing of suffering. By aligning four different forms of witnessing, of the audience, we can distinguish how the documentary is constructed in order to engage its viewers.

1). Narratives of injustice To analyse the way the narrative of the wrongly accused is deployed through juridical documentaries several theories regarding documentary aesthetics will be used. To introduce documentary narratives I will first look at the six elements that have been connected to the so-called flawed trial, as mentioned by Jessica Henry, to introduce the narrative surrounding the documentary of the wrongly accused. By going against the established narrative the documentary entails a certain truth claim within it. This will be elaborated by looking at the several different concepts by Bill Nichols, Roxana Waterson, Kristen Fuhs and Anita Biressi. Looking at the pharmako-logical panic and the inconvenient scapegoat, that are recognizable throughout the documentaries, will show how the court presented the established truth claim. Hereby I will argue that all the documentaries represent the narrative of the inconvenient scapegoat as is deployed throughout the court case, but that its employment can be quite different. The guiding principles will be Abigail G.H. Manzella and Rene Girard. In the final chapter I will look at how the narrative structure is build up throughout the documentaries. The narratological elements of the flawed trial will be connected to several concepts regarding documentary and its inherent truth claim.

1.1. Flawed Trial

In criminology there is a current discussion surrounding the concept of the flawed trial and the causes for this. In this chapter I will look at the several misconducts performed within a criminal case that can lead up to a flawed trial. “Promoting the study of wrongful convictions in criminal justice curricula” by Jessica Henry will be the main thread throughout this chapter. Henry is an associate professor in the department of justice studies, after serving as a public defender for 10 years, focusing on criminal law and procedures, death penalty

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perspectives and wrongful convictions. She has stated six elements that are to be considered to be the main reasons for wrongful convictions within the United States. Documentaries have the power of proving the court cases and their convictions wrong by emphasising on the causes for the failed trail and the wrongful conviction. In this chapter I will be looking at how the juridical documentary film might use the legal trial to contest or reinforce the convictions, by looking at eyewitness misidentification, false confessions, unreliable science, governmental misconduct, informants and bad lawyering given by Jessica S. Henry as well as the National Registry of Exonerations and additions by Fuhs, Cunliffe and Stratton. The six elements of Henry will be addressed throughout the thesis to show how the flawed trial and wrongful convictions are represented through documentaries. I am interested in the narrative and its structure because the presented narrative in the documentary is able to break free from its established narrative (and therefore truth). By highlighting the six classifications of Henry I will be able to distinguish the discrepancies and flaws of the court trial, and by analysing the narrative and its narrative structure the countered truth is able to come to light. By emphasizing how the narrative is constructed, the different aesthetical strategies will come to light. “Since 1989, when DNA testing was first employed to establish innocence, there have been 1.133 known exonerations of men and women who were wrongly convicted”, according to the National Registry of Exonerations (Henry 236). This data represent only an unknown portion of the innocent people wrongly convicted and incarcerated. Currently the marker is at 1.584 exonerations, 451 more exonerations in less than two years 1 . The National Registry of Exoneration (from now on to be called NRE) is a project of the university of Michigan Law School, founded in 2012, in collaboration with the centre on wrongful convictions a t the NorthWestern University School of Law. “They give out detailed information about every known exoneration in the United States since 1989 – cases in which a person was wrongly convicted of a crime and later cleared of all the charges based on new evidence of innocence (www.law.umich.edu) According to the NRE there are six contributing factors which leads to exonerations within murder trials; mistaken witness identification

1 National Registry of exonerations, consulted at 2015-04-16.

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(24%), perjury or false accusation (67%), false confession (21%), false or misleading forensic evidence (23%), official misconduct (60%) and inadequate legal defense. These six elements are in general what is wrong with the American justice system. By highlighting the flaws in the criminal justice system, documentaries are contributing to way exonerations in general put the criminal justice system in doubt. Juridical-crime documentaries are determined to show the ‘real’ version of events, by mentioning the weaknesses and faults of the flawed trial. As the legal trial beholds a narrative of its own I will look at the representation of the six factors that lead to the wrongful conviction and how these might be represented within the documentary. Are the elements of the legal trial enforced or decreased through visual evidence? According to Henry and the NRE the miscarriages of justice are rarely produced by only one factor, but are they the result of a constellation of these factors (237). As court cases are complicated processes with many different elements, the construction of the truth seems to be under attack through these factors. Eyewitness misidentification is based around the common misconception regarding witnessing and remembrance. Mistaken witness identification happens in about 24 % of all murder cases (website NRE). Henry states that; “[…] jurors find highly persuasive the dramatic testimony of a sworn witness, who points her finger at the defendant and declares: That is the person who committed the crime” (240). Eyewitness identification can be altered and influenced through suggestion, which irreversible influences and alters the memory of a witness. Informants and witnesses provide information for the prosecution during the trial, which are later acknowledged to be wrong or false, can be considered to be perjury or a false accusation. These informants are often compensated in some form of benefit, “typically favourable treatment for a pending criminal case or sentence, or money or a property”, according to Henry (244). On these testimonies is heavily relied upon by the police and prosecution, even with discrepancies in their stories. Most informants are willing to say and do anything in order to receive some form of compensation. The failings, shortcomings or wrongdoings of expert witnesses and their misleading statements are also recognized to contribute a great deal to wrongful convictions, as juries blindly follow their expertise and testimony. There are 3 stages of interrogation that can lead to false confessions, according to Henry (241). Through misclassification an innocent person is

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considered to be guilty, which causes the investigation and court case to be guided by the presumption of guilt. Hereby new or existing evidence, leads and other possible theories are disregarded in order to sentence the assumed guilty person (Henry 241). The suspect is then subjected to an interrogation, full with psychological coercion. The specific tactics that are used within the interrogation are specifically effective with vulnerable suspects. These suspects, mostly with cognitive impairments, juveniles or the mentally ill, are considered to be highly susceptible to coercion, whereby the police contaminates the confession by suggesting certain facts or leading their story of events. “Contamination by the police irreparably alters the confession” (Henry 242). Unreliable science, or the lack of scientific evidence is another cause for wrongful convictions. The most current misconception regarding court cases is that everything is done accordingly to the scientific investigation within popular television shows, like CSI (2000), NCIS (2003), Criminal Minds (2005) and many more. Unfortunately this is not at all accurate, as many forensic staff and laboratories are underfunded, understaffed or under supervised (Henry 242). There are still complications and limitations within the analysis of forensic evidence. As the National Academy of science states “[w]ith the exception of nuclear DNA analysis … no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” (Henry 242) Official governmental misconduct looks at how the governmental instruments, the police and/or prosecution, have contributed to the process of a flawed trial. Police misconduct can constitute of bad investigation work, deliberately ignoring, altering or even manufacturing of evidence, employing improper identification techniques or the usage of physical violence. Henry states that through tunnel vision evidence is filtered to support a specific version of the case, to highlight the guilt of a suspect(s), while disregarding contradicting evidence (243). Prosecutorial misconduct is considered to be the (deliberate) wrongful choices made by the prosecution office, which may lead to a wrongful conviction. Henry mentions many forms that can be identified as prosecutorial misconduct such as; “tampering with, destroying, hiding or failing to disclose evidence; threatening, tampering or badgering witnesses; using false or misleading evidence; suborning perjury; displaying bias against the defendant or defense counsel; and improper conduct in the grand jury and the courtroom.”

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(Henry 244) To analyse whether the police or the prosecution has made himself guilty of misconduct is to examine whether they have applied the appropriate methods and techniques during cases, as stated by Cunliffe (287). Inadequate legal defense and bad lawyering stands for the legal defense team of the accused. These are mostly considered to be the defense attorneys who are appointed to poor defendants to represent them in criminal cases. Henry calls attention to the most common problems with an appointed legal defense; “Defense lawyers are often overworked and overburdened, with staggering caseloads. As a result, defense lawyers may fail to properly investigate a case, call key witnesses, or adequately prepare for trial. Furthermore, public defenders and court-appointed attorneys have limited or no access to forensic testing and expert witnesses.” (245) Defense lawyers often do not have the money, time, or access to evidence or general experience to properly represent their clients in court cases. The six mentioned elements presented by Henry and The National Registry of Exoneration are all considered to be part of the concept of the flawed trial, whereby documentaries adjust the basic common thinking regarding the criminal justice system, by addressing the possible errors of that same system within the documentary. “Exoneration cases have altered the ways judges, lawyers, legislators, the public and scholars perceive the criminal system’s accuracy, according to Garret (Henry 237). Paradise Lost employs all the elements of the flawed trial as given by Henry. The eyewitness misidentification, false confession and false accusation and governmental misconduct are all of extreme importance throughout the documentaries. These are touched upon in the first documentary child murders at Robin Hood Hills, but are more and more elaborated upon with the second and third film. Eyewitness misidentification is central to this documentary, as the West Memphis Three are convicted through several misidentifications, by emphasizing the wrong misidentification and the accusations the documentary was able to gain attention and Figure 1. False Accusation in Paradise Lost ultimately break free from the established narrative of the court. In the chapter regarding testimony I will show how the documentary discredits the given statements by the witnesses and police and enhances other statements through

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the use of editing. Bad lawyering is only made visible with the emergence of the second documentary, as it reports on this through the documentary. Murder on a Sunday Morning uses the elements of the eyewitness misidentification, the false confession and governmental misconduct in order to represent the narrative of Butler as an innocent man. The story is guided by the presumption of innocence from the start of the film as defense attorney Patt McGuinness guides the narrative and explains the flaws made within the film. The innocent claim is highlighted through the use of editing and the explicit use of one side of the court case. Butler is wrongly accused of the murder of Mary Ann Stephens through the misidentification of Butler by Figure 2. Police Misconduct in Murder on a Sunday Morning the eyewitness Mr Stephens. The misidentification has been made explicit through juxtaposing the witness statement of Stephens with the testimonies of the defense lawyers, accompanied by the showing of evidence. Editing is also used to show how the false confession was obtained. By alternating court statements with character testimonies of Butler, by his family, the flaws of the trial become apparent for the audience. The Trials of Darryl Hunt uses several of the elements given by Henry. Throughout the documentary the concepts of the eyewitness identification, false confession, governmental misconduct and false accusation are all discussed throughout the film. The several misconducts that have appeared within this court case have been made very explicit with the several testimonies that have been given out. By using the court case structure as the narrative, with all its above mentioned errors, is contested

Figure 3. Different mugshots in Trials by the many supporters of Hunt who are able to of Darryl Hunt speak through the documentary. By addressing the concepts of the flaws and failures of the legal trial, the documentaries go against the established narrative of the court. These classifications are relevant for the films as they are a great part of the narrative that is deployed through the documentary. Going against the established truth, by addressing the flaws and failures of the court, the documentaries are able to establish their own specific truth. The specific truth claim that juridical-crime documentaries behold within them is essential for this genre. By designating

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audible, visual and narrative evidence, like editing, found footage and interviews, the documentaries are able to prove the court case wrong, by highlighting, emphasizing or diminishing certain details of the criminal trial.

1.2 Truth claim

Do you swear to tell the truth, the whole truth and nothing but the truth, so help you god? (Paradise Lost: Child murders at Robin Hill)

Like court cases, documentaries behold within them the implicit characteristic of (re)telling the truth, as it has appeared. Documentaries always behold within them some sort of truth claim. This truth claim is based upon the notion that what appears on the screen is considered to be ‘real’. The notion of revealing the truth does not become apparent in every documentary, but is of great importance within the crime-juridical documentary genre. Documenting and representing the truth of the court cases seems to be the general truth claim within these documentaries. Telling the truth seems to be the most explicit and important thing in every court case but how has this principle of telling the truth before the court worked through the juridical-crime documentary? By looking at definitions given by Waterson, Nichols, Spence and Navarro, I will analysis the truth claim within the current juridical-crime documentary. “Documentary films speaks about situations and events involving real people (social actors) who present themselves to us as themselves in stories that convey a plausible proposal about, or perspective on, the lives, situations, and events portrayed. The distinct point of view of the filmmaker shapes this story into a way of seeing the historical world directly rather than into a fictional allegory” (14). This definition by Bill Nichols in his book Introduction into documentary shows the diversity surrounding the concept of documentary. An easier and shorter definition could be that ‘documentaries address or represent reality’. The definition of addressing and/or representing reality brings with it its own problems. Can reality ever be captured and or mediated through documentaries? Should we look at documentary as the ‘creative treatment of

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reality’ as Grierson stated it, or should we be more aware of the constructed nature of film? Historically there have been different forms of documentary in representing the truth and reality. The definition of documentary has changed throughout its years and has known different forms and styles. Two main concepts have been essential throughout these years and I would like to argue that the juridical documentary uses and combines both these concepts in order to reveal their ‘ultimate truth.’ Direct Cinema and Cinema Verité are two cinematographic styles that have very different ideas, concepts, styles and techniques regarding capturing and representing the truth. Direct Cinema has emerged as early as the 1920’s. Within the Direct cinema style the camera observes and the documentary relies on editing to generate a sense of experience and time passing as Anita Biressi mentions in her article “Inside/out: private trauma and public knowledge in true crime documentary” (408). This movement uses the camera as a fly-on-the-wall, documenting without interference, as could be argued seems to be the case within the courtroom. The camera is merely used here to observe and record what is happening before its screen, waiting for a spectacular moment to unravel its self. Direct cinema is seen to come to light within the crime-juridical genre through its fly-on-the-wall technique deployed within the court room. Within the three different documentaries the fly-on-the-wall strategy is used within the court case enabling the audience of the documentary to witness the entire court case in one film, able to see connections and a narrative structure through the employment of editing. This footage can be filmed by the crew of the documentary, as is the case with Paradise Lost and Murder on a Sunday Morning, or can be borrowed from traditional news media, as The trials of Darryl Hunt does this. All the documentaries use this kind of court footage to record and represent the ‘ultimate truth’. Juridical documentaries derive their power and truth claim status from the implicit notion that everything that has happened before the camera is true and really happened, without interference. Only by using editing a sense of experience, time passed and narratological connections can be made. This is done within all the court cases as they switch between the actual court case and other footage, like found footage, pictures or testimonies before the camera.

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The filmmakers of Cinema Verité believed that cinematic truth could be better achieved if the used techniques were (at least partially) revealed upon the screen in a reflexive way. Cinema verite challenges Direct Cinema’s claim to non- intervention by revealing that that the camera is always present and affect the subjects present (Biressi 409). “The use of journalistic interview, editing to reveal contradictions in testimony and argument, the conspicuous presence of the filmmaker and/or crew, and the use of commentary that reflects on the filmmaking process are among the distinguishing features of the documentary, according to Biressi (409). Adkins states that the camera, by its mere presence, shapes the participants and their reactions to the murders (20). Through the presence of the camera a particular response is evoked within its participants. This response may appear real and genuine, but must ultimately be regarded as ‘hyperreal’ (20). Participants are ultimately all looking for a role to play before the camera, which leads to performativity of the social actors. Cinema Verité comes into play by using journalistic interview, editing to reveal contradictions or highlight certain elements, use of intertitles or performativity scenes. As these documentaries all try to portray a different narrative, then the already established story, editing must be used in order to show discrepancies and contradictions in testimonies. Through the presence of the camera the social actors all take on a role to play. The general truth claim of documentaries is even more intensified within the crime-juridical documentary genre, as they try to counter an established narrative, than with any other documentary genres. “The documentary present itself as the better space for revealing the ultimate truth by countermanding the dominant power structures and the American Justice system”, according to Kristen Fuhs, in her article “The legal trial and/in documentary film” (796). The general truth claim of documentaries is even more specific and intensified within the crime-juridical documentary. She elaborates by stating that “The expectations we bring to the juridical documentary (in terms of its truth-telling responsibilities) make it a particularly loaded space for analysing the ethical and epistemological responsibilities of documentary representation as well as for revealing truths about the legal process and the ordering of a just society” (Fuhs 781). The truth claim of the American justice system is countermanded through these documentaries. By revealing a different ‘truth’, other than the presented narrative of the court case, the films go against the existing power structures. By

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highlighting a narrative of the scapegoat these films go against and countermand the existing power structure that is the American Justice System. The documentaries use the fly-on-the-wall technique in order to portray the court cases, whereby they can be considered to be part of the Direct Cinema movement. As is shown in figure 4, all documentaries employ the fly-on-the-wall technique within their documentaries.

Figure 4. Court footage in Murder on a Sunday Morning, Trials of Darryl Hunt & Paradise Lost

Because these films offer footage that were shot during the actual trial they behold within them the truth claim of the actual event. The images that are shown have really occurred, although the documentary goes against its presented narrative. Through the use of journalistic interview, editing and performativity characteristics, part of the Cinema Verité, the documentaries are able to go against this presented narrative. Editing and the interviews are able to show the contradictions within the fly-on-the-wall footage, as is shown in figure 5. In order to show the different version of the events all three documentaries are highly biased and mostly restricted to the side of the accused.

Figure 5. Interviews in Trials of Darryl Hunt, Paradise Lost & Murder on a Sunday Morning

In relation to the images of the actual court case they observe and document the process that reveals before them. Outside the court room, the documentaries interfere and interact with its social actors, whereby editing generates a specific sense of experience and time passing. Within the Testimony chapter I will look at how the Direct cinema techniques are employed throughout the documentaries, and within the Performativity chapter I will look more closely at the performative nature of the documentary itself and of its social actors. Hereby I can look at the influence that is made explicit throughout the documentaries by highlighting the presence of cameras and film crews or the usage of journalistic interview.

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The truth claim that documentaries represent go against the established version of the truth, whereby the suspects are classified as the scapegoats. In the next chapter I want to show that the documentaries show their own version of the truth by highlighting the concept of scapegoating. Its truth claim is established by going against the established truth claim.

1.3 Convenient Scapegoat

The question of truth, constructed through the court case and enhanced through the power structure of the American justice system, is questioned throughout these juridical documentaries by demonstrating the established elements and classifications of the flawed trial. These classifications demonstrate an alternative narrative and show the reasons for exonerations within the court cases. I would like to expand the already established elements by looking at the principle of the convenient Scapegoat and the pharmako-logical narrative. In this chapter I would like to argue that the truth conveyed by the Court case is not the ‘real truth’, which will be revealed by uncovering the scapegoat and pharmako-logical narrative. These documentaries show that a consistent use of the scapegoat narrative has been used throughout the different court cases and documentaries to undermine the ‘real’ truth to come out. The documentaries disclose a scapegoat narrative to undermine and question the authority of the court case and the established narrative. In this chapter I would like to look at the narrative structure that has built up around the narrative of the wrongly accused throughout documentaries. I would like to argue that documentaries, surrounding the narrative of the wrongly accused, all represent the idea of the convenient scapegoat. This concept has not been new within contemporary culture and thus existed before documentaries represented their stories audio-visually, but these documentaries are able to highlight how scapegoats were found and prosecuted at the time, focusing on the idea of the convenient scapegoat. The concept of the scapegoat has a twofold tension between the court and the film. The criminal justice system tries to apply this narrative on the actual case, and therefore on the accused, whereby the documentary tries to highlight the established scapegoat narrative and thereby to break free from its established concept of the scapegoat. The documentaries represent the court

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case in a manner that goes against the ‘objective’ ruling, and highlights the flaws of the American justice system, by revealing the constructed narrative of the scapegoat and the Pharmako-logical panic that have been employed throughout the cases. Representing this idea of the scapegoat and highlighting it through the documentary, the murder case can be viewed in another light and make connections that were unable before. How has the documentary represented and highlighted the concept of the inconvenient scapegoat and the Pharmako-logical panic, employed throughout the court cases? The narrative structure that is maintained throughout the court case is based around the principle of the Pharmako-logical panic as described by Abigail G.H. Manzella in her article “Pharmako-logical panic: the narrative logic of capturing the friedmans”. “One person or group is often made {into an scapegoat in order} to bear blame for others (Manzella 1229). This person or group is made into a scapegoat by accusing them, which leads to a moral panic, often exaggerated and wrong, as stated by George Chauncey. He explains; “Moral panic usually occur in periods of social stress when large numbers of people, already apprehensive about the stability of the social order, focus these anxieties on a social phenomenon, incident, person or social group, which comes to symbolize (even as it occurs) the forces that seem to threaten their way of life” (Manzella 1229). The moral panic may be resolved through the ritual of the Pharmakos, whereby the scapegoat is cast out in order to return to the status quo. This scapegoat is usually discovered at the margins of society, and is seen as worthy sacrifice for diminishing moral panic and a return to normal. The Pharmakos is at the margins of society through its low status, whereby the collective fears of the community can be portrayed on them. Within Capturing the Friedmans the pharmako-logical panic can be found by out casting father Arnold Friedmand in order to “save” other members of the family and the overall community (Manzella 1230). Arnold Friedman is considered as a symbolic person, a scapegoat, already on the margins of society through his homosexuality and possession of pornographic images of young children, who can be cast out from society in order to reinstate status quo, because he is considered to at the margins of society, and is therefore a worthy sacrifice. By pointing towards a group or person at the margins of society, for whatever reason, the community aptly adopts the possibility of guilt and accepts the person or group capable of terrible crimes.

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The extensive writing of Rene Girard has inspired Manzella’s work. In his 1986 book The scapegoat Girard talks about the principle of the scapegoat and the hysteria of the public. Girard describes in his book how the desire for a scapegoat was developed wit the emergence and rise of the death by the black plague; “Their desire to deny the evidence contributed to their search for ‘scapegoats.” The fear for the black plague is no longer valid today but the desire for scapegoats has remained. Naming a scapegoat(s) has therefore two sides, that of the persecutor and the scapegoat him/herself. Persecution is built upon the conviction that the persecutors are and must be right, so therefore the accused must be guilty. According to Girard “If narrative describes circumstances favourable to persecution, if it presents us with victims of the type that persecutors usually choose, and if, in addition, it represents these victims as guilty of the type of crimes which persecutors normally attribute to their victims, then it is very likely that the persecution is real. If this reality is confirmed by the text itself there is little scope for doubt” (6). Because the accused have been presented as deviants and are on the margins of society, they must be capable of the crimes, therefore their accusation must be real. Within Paradise Lost the accused have been presented as being deviants from society and are presented as scapegoats, which are confirmed by the text itself. The text by which we can read this is the court case in which the prosecution is presented. The expert and witness testimonies confirm the text of the West Memphis Three being guilty of the crime, whereby the documentary of the court case can be seen as the “the trial it never was; it presents the evidence that wasn’t presented, and the audience becomes the jury’” (Manzella 1234). By putting emphasis on the pharmako-logical panic and the idea of the scapegoat the documentaries emphasize their inherent truth claim and the innocence of the accused. All employ the idea that the accused could have easily been someone else, although within some form of the margins of society. The films use a critical perspective on scapegoating to question the prosecution. The margins of society can constitute several different elements like poverty, sexual deviance, differing religious grounds, ethnicity, class or lifestyle. The collective fear within Paradise Lost is determined by the ‘satanic’, the ‘occult’ and ‘ritualistic killing’. Already a national fear at the time, as is made clear within the documentary by showing news reports and parts of popular television shows

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like Oprah Winfrey, made it particularly easy to point to the suspects Echols, Misskelley and Baldwin as the obvious and easy scapegoats. As expressed by Manzella “the anger expressed both by the immediate community and by the nation in general focused on [sexuality], satanic, but various other factors contributing to the demonizing of the West Memphis three” (Manzella). The West Memphis Three have been demonized by emphasizing three different features, which considered them to be the deviant other(s) and through which they can be labelled as scapegoats. Firstly they are considered to be “white trash and freaks”. Being poor puts them at the financial bottom of society, but the lower financial status also beholds within it the judgement of a lower moral. The lowest (financial) class of society are seen as having a lower moral compass. The lower moral compass makes them more susceptible for committing horrendous crimes, as the ones committed at Robin Hills. Being on the border of society is also confirmed by the religious deviancy they portray by being Wicka followers. The several witness testimonies calling them “weird” or “freaks” are also based upon their religious difference, appearance and choice of music. Throughout the entire documentary can dark rock music be heard, to emphasize the musical preference of the boys. By distancing himself from the overall Christian beliefs of his community he is becoming a religious abnormality. Although Wicka is explained by Echols himself as an worshipping of nature; “It is basically a close involvement with nature” and mixture of different religions, Wicca Figure 6. Echols in Paradise Lost seems to be compared to Satanism, although Satan is not recognized within the religion itself. What Wicca truly is does not even matter, the accusation and comparison with Satanism is believed by the jury and the overall public at the time because it suited the formulation of the Scapegoats. By enclosing the explanation of Echols regarding Wicca, the audience gets a different version of their religion, which doesn’t seem to be incorporated within the traditional media coverage. The appearance and musical preference of the West Memphis Three, especially Echols and Baldwin, adds to the already established idea of the scapegoat and reinforces it. As mother Pam Hobbs states in her testimony before the news camera, when she is asked if she believes that the people who did this

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were worshipping satan, she anwers: “Yes I do, just look at the freaks, just look at them, they look like punks.” The clothing and overall physical appearance of the accused men has made them more acceptable as scapegoats. Portraying them as being the deviant other, an easy identifiable scapegoat, reinforces the status of Baldwin, Echols and Misskelley as guilty. The documentary goes against this established narrative by the traditional media, the court and witnesses by letting this

Figure 7. Prosecution in Paradise Lost scene be followed by the testimonies of the parents of the West Memphis Three. By using injurious speech, as Judith Butler calls it in her book Excitable Speech. A politics of the performative, the other is placed outside the “normal” community and must be therefore moral deviant (Manzella 1234). “Did you think they (Baldwin and echols) were weir?” asks the prosecutor during the trial. “Yes, because they were all dressed in black, and their hair was jet-black and long” answers the state’s witness. By letting the West Memphis three embody the communal, and perhaps national fear, of the time they are excluded from society by accusation through excitable speech. The West Memphis three are sacrificed by the community, and out casted as the symbolic Pharmakos, through which the community is allowed to recede its fears and enables them to reconstitute its unity, according to Manzella (1239). The documentary tries to go against the established outsider status by including character testimonies by friends and families as well as interviews with the three. That black men are still considered to be on the margins of society, able to be prosecuted because of the colour of their skin, is made evident in Murder on a Sunday Morning and The trials of Darryl Hunt. The Pharmako-logical panic that occurred at the time had to do with the murder of a white, female tourist, by a black man. Murder on a Sunday Morning was originally aired as Un Coupable ideal, which is translated as an Ideal Guilty. By putting emphasized beforehand on the notion that this film is about an ideal guilty lets to the presumption that a scapegoat was used. Any black man could have been arrested at the time, and Butler being the victim was based on pure bad luck, at stated by the police officer; “there is a young, black man, it could be him, could be anybody.” The panic that occurred was due to the murder of a white woman, by a black man,

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and by pointing towards the first black man in sight, the moral panic was able to be subside. Only because of the black colour of his skin is the young man addressed and brought to the scene of the crime, as the police officer states. This statement is given extra force by the repetition of Defense attorney Ann Finnell, whereby she highlights the use of the convenient scapegoat in her testimony before the camera; “Officer Figure 8. Murder on a sunday Martin came in and candidly admitted that the only Morning reason Brenton Butler was even stopped that morning, was happened to be because he was a black individual, walking down the street. This means that every African-American in Jacksonville, who is walking down the street, not doing anything wrong, that they are subject to being stopped and asked to get in a police car, with the possibility that they might be accused” (06:40). After her testimony before the camera this statement is reinforced once again through the court footage. By emphasizing upon this statement three times within a couple of minutes the documentary wants to highlight the concept of the scapegoat. As another man is arrested at the end of the documentary, we are again reminded of Butler as the ultimate scapegoat, according to his skin colour, as we hear police officer state “it could be him, it could be anybody.” (1:48:18) The narrative of the convenient scapegoat is touched upon several times in order to highlight the flaws in the criminal trial. This narrative is ultimately unable to manifest through the court case, as the suspect is proven to be innocent and released from prison. The black man as the scapegoat and the concept of the pharmako-logical panic being resolved through his accusation is also the case in the documentary regarding Darryl Hunt. Documentary shows that in the traditional news media Hunt was shown to have a criminal record which made him a perfect scapegoat. This is made evident within the statement of Larry Little, before the camera. He states that the traditional media has made Hunt into a scapegoat because of alleged assault charges. Simultaneously we can see and hear news footage that talk about the criminal past of Hunt, because of his association with Sammy Mitchell. Prosecutor Tisdale; “Darryl was his protégé.” This is again reinforced by the statement made by his defense attorney; “”They couldn’t get Mitchell, so they tried Hunt, pressure Hunt to get to Mitchell.” By showing the established

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media narrative, the footage that says Hunt has a criminal record, and by letting Little speak about against this phenomenon, the documentary is able to go against the scapegoating.

Figure 9. The trials of Darryl Hunt

The documentaries make explicit and highlight that the court cases and the surrounding culture at the time, are full of the pharmako-logical panic as they seek for a scapegoat to convict for the murder(s). By emphasizing and highlighting the scapegoat narrative that has been employed throughout the traditional news media as well as in the court case, the documentary can go against this existing narrative in order to reveal the ‘real truth.’ Paradise Lost, Murder on a Sunday Morning and The Trials of Darryl Hunt demonstrate that the Pharmako-logical panic and the narrative of the convenient scapegoat can be turned around to be used in order to go against the existed narrative. The pharmako-logical panic is shown throughout the three different documentaries. With all the murders there appeared to be a moral panic, which required a quick, strong reaction in order to go back to the normal way of life. By addressing and reinstating a scapegoat, worthy as a sacrifice through his moral deviance or by being at the margins of society, the pharmako-logical panic can be resolved. Paradise Lost showed the already established fear from the occult and the satanic rituals at the time. By employing this concept on the accused a scapegoat, worthy of the sacrifice because of their deviant interests into wicca, black clothing and loud music, is found. That the Pharmako-logical panic can also be considered to be a social group, or race in this instance, is made evident through Trials of Darryl Hunt and Murder on a Sunday morning. Both these films employ the concept that the accused could have been any other black men, as is stated several times throughout the films. All the films inherently go against the existing Pharmako-logical panic by proving the flawed trial and the wrongly accused as its scapegoats. The principle of the pharmako-logical panic and the

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concept of the scapegoat is needed throughout these films in order to receive a certain reaction from its audience. The documentaries highlight and enforce the statement ‘it can happen to anyone.’ The reasons for being cast as an scapegoat are different within the three documentaries, but they all show that the accused have been placed within the ritual of the Pharmakos in order to resolve and restore the moral panic established through the murders. Within Paradise Lost the movie goes against scapegoating by presenting the accused and their families and friends in order to convince the viewer of the ridiculous charges. Murder on a Sunday Morning shows the testimonies of witnesses and undermine them one by one in order to proof the scapegoating concept. This is done as well with Trials of Darryl Hunt, whereby every statement regarding the accused is put down as scapegoating by juxtaposing the narrative. Within the next chapter I will elaborate more on the narrative structure and the form of narration in order to highlight how the ultimate truth is represented within the documentaries.

1.4 Structure and narration

In this chapter I would like to look at the narration and build-up of tension throughout the juridical documentaries. Murder on a Sunday Morning, Trials of Darryl Hunt and Paradise Lost all employ a narrative whereby a different version of the truth is being established through aesthetic strategies throughout the documentaries. Displaying the flaws of the juridical trial, explaining the ultimate ‘truth’ claim that lies within documentary, revealing the narrative of the scapegoat and the concept of the pharmako-logical panic are all part of the narrative of injustice. In this final chapter I would like to look at the structural, narratological order that is followed throughout these documentaries, by looking at how the distribution or withholding of information is done, how prior information is questioned and how the documentaries achieve authority. The narratives convince the audience that the established truth it not revealed during the trials, but only while watching the documentaries. Using interviews, courtroom footage, newspaper headlines and footage, pictures and 911-calls the narrative structure throughout the juridical documentary is based on the continued investigation, revealing small parts of evidence at a time. By slowly revealing parts of evidence through the previous mentioned audio-visual

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elements the narrative is able to build up suspense. “It employs a pattern of establishing, then undermining, the credibility of various witnesses, a truly coy mechanism built on withholding certain facts in order to induce a shift in viewer sympathies or conclusions. (Arthur 6). The narratives within the documentaries are based upon a chain of events, a cause-effect relationship between people, events and places (Bordwell, Thompson 75). The narrative structure is mostly determined by the way information is distributed and/or withheld within the documentary. Narration is the “plot’s way of distributing story information in order to achieve specific effects” (Bordwell, Thompson, 88). The films are made from the plot, “everything visibly and audible present on the screen before us” and the story, “set of all events in a narrative, both the ones explicitly presented and those the viewers infer” (Bordwell, Thompson 76). Narration is hereby considered to be the plot’s way of distributing story information in order to achieve specific effects. Through an omniscient, restricted, objective or subjective storytelling the plot may provide or withhold information, in order to elicit particular reactions from the viewer. A restricted narration creates greater curiosity and surprise for the viewer, as the narration is restricted to only one person and their experience, which may conceal other story information. The omniscient narration entails an all knowing viewer, who receives more information than the social actors on the screen, which can help build up suspense (Bordwell and Thompson 90). Subjectivity is achieved when the audience hears and sees as the characters would, through point of view shots or by hearing the characters thoughts for instance. Within objectivity the audience only receives information about what social actors do and say. Bordwell and Thompson state that we must know how the narration presents and withholds the story information, in order to achieve a formal function or a specific effect on the viewer? (91) Murder on a Sunday morning, Trials of Darryl Hunt and Paradise Lost are all three based upon the court case narrative. The story and proceedings of the court case are the red thread through the films. As all the movies have been released after the (first) verdict the documentaries are based upon the concept of establishing and undermining witnesses, through presenting and withholding information. As becomes apparent quite quickly these documentaries are not about finding or revealing the ‘real’ guilty men or women of the murdered victims, but are about presenting the causes for the flawed trial and the

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convicted men as victims. Stratton employs the concept of a ‘survivor narrative’, whereby the “audience is immersed into the lives of unique individuals whose life stories represent broader allegories of struggle, disempowerment, misfortune of victimization.” The events that have occurred contain the lives of ordinary people and extraordinary incidents, which ultimately leads back to the narrative of the scapegoat and the Pharmako-logical panic. By creating a sympathetic stage for the wrongfully convicted the audience can accept and support them as victims of an injustice. These narratives present different version of events that is in conflict with the established narrative of the Justice system and the traditional news media. All the three documentaries start, or show within mere minutes, the pictures of the crime scene to illustrate the narrative of the court case. This is the start of the classical Hollywood narrative as it shows the disruptions as the beginning of the narrative. The narratives are built around representing the wrongly accused through the retelling of an already told story. The actual murder and the finding the ‘real’ killer seem to be of secondary importance. All the narratives are based around the course of the trials. Paradise Lost is already slightly different from the two other documentaries through its narrative. The narrative regarding the West Memphis Three is first of all divided over three documentaries, rather than one. Thereby is the murder case not (re)solved after the Child murders at Robin Hood hill. By dividing the narrative there are three separate narratives, but can be combine to one. Within Child murders at Robin Hood Hills the murder of the three boys has occurred, are the West Memphis Three accused and convicted of the crime. After its release, the film sparked a reaction with its audience and a passionate group of supporters pressed for the correction of the flaws, but the justice system is unable to rectify its wrong, whereby the innocent three men have to live with the stigma of murderers. Only after new evidence emerges, which is shown within the third movie, is the group of lawyers and the supporters able to rectify the wrong that has been done. The innocent West Memphis three are freed, although pleading guilty. The information that is distributed is done through the use of interviews, news footage, court footage, pictures and intertitles. The documentary uses testimonies, official and before the camera, from both sides of the story. The plot shifts constantly from character to character to change the source of information for the viewers. The narrative structure within Paradise

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Lost is divided within two parts; the first part is the story of Jessie Misskelley, as he is tried in a separate case then the other two accussed. The second part is the second court case, whereby Echols and Baldwin are prosecuted.

Figure 10. Structure in Paradise Lost

The narration that has been used is omniscient, as both sides of the story are being told to the camera. The family of the deceased boys get the opportunity to speak before the camera, as well as the family of the accussed boys. The Trials of Darryl Hunt places specific emphasis on Hunt instead of the criminal court case by placing his name in the title. The trials can thereby employ a two-folded meaning. It references to the actual, several, different court cases that have been mounted against him, but it can also reference to the many ordeals that Hunt had to face in order to be released from prison and to get exonerated. The filmmakers of The trials of Darryl Hunt have only started filming this story ten years after the murder, as they explain at the beginning of the film through the use of intertitles as is shown in figure … Because of this they had to

Figure 11. Opening credits in The trials of Darryl solely depend on media footage to cover the first decade of the trial. Throughout the documentary the narrative structure is heavily relied upon the traditional news media to tell the story for them. The narrative has been constructed through the use of newspaper headlines, news media footage, court footage and documents. Every twist and turn within the story is preceded with these footage.

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The news media footage and the newspaper headlines behold within them a certain truth and objective claim that immediately achieves a feeling of authority with the viewing audience. As the news beholds the general truth claim, as is also the case within the documentary, these two media reinforce each other.

Figure 12. Structure in The trials of Darryl Hunt

The information regarding the court case is largely distributed and structured through the newspaper headlines as is seen above. These headlines, along with news footage and other documents that are shown, structure and distribute the thread of the court case, which is elaborated or questioned upon through interviews. Within the opening credits several, different news footage is shown alongside paper headlines that introduce the story of the murder of Deborah Sykes. The narration within The trials of Darryl Hunt is largely restricted, as the biggest part of the time there are advocacy’s for Hunt talking before the camera. Besides the news and court footage, the overall part of the interviews is so to say pro-Darryl. Besides the mother of Sykes and her former employer Flagler, only the prosecution is allowed to speak on behalf of the murdered victim Sykes. Within the first twenty minutes of the film there are eighteen testimonies before the camera by the defense team or friends of Hunt to speak on his behalf, but only three moments when the opposition gets an opportunity to speak. With the emphasis on his innocence, Hunt achieves authority. A moment of revelation was when news anchor Sheboy is being interviewed. She has been seen several times, as she was the main reporter for the Sykes murder case and is seen in the opening shots of the Figure 13. Sheboy in radise Lost documentary, but this is the first time we see

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her not presenting and questioning but herself being interviewed. As she states, while crying and sobbing in front of the camera; “there were no eyewitnesses, no murder weapon, no sperm, [..] and when he was done (prosecutor Tisdale) I was convinced Hunt was guilty, and if it would have been anyone else, I would have been convinced it was them.” The narrative structure that is used throughout Murder on a Sunday Morning is slightly different from the narrative structure used within the two other documentaries, as the documentary is only about the occurring court case, the release of Butler from prison and the accusation of Ron Curtis as the actual killer in the case. Within Murder on a Sunday morning the narrative structure is build upon the subjective storytelling of the court case regarding the murder of Mary Ann Stephens by the accused Brenton Butler, through the defense team; lawyers Patt McGuinness and Ann Finnell. Through an restricted narration, by Patt and Finnell, the audience is guided by their retelling of their versions of events. Defense lawyer McGuinness is the first person to appear talking on the screen, whereby he opens the plot by retelling the events of May 2000, whereby Stephens is murdered; “My name is Patt McGuinness, I will be 50 this Christmas, and I defend people charged of killing people.” The documentary puts direct emphasis on McGuinness rather Figure 14. Patt McGuinness Defense lawyer in Murder on a Sunday Morning than the victim, or the accused, by letting him open up the narrative. Because he is the first and foremost person who speaks directly to the audience McGuinness receives immediate authority. He continuous; “[…] Somebody shot and killed mister Stephens wife. At that same time, Brenton Butler was at his home, saying good morning, taking care of his dog. But those two events collided about two-and-a half hours later as he is arrested by the police to be viewed by mr. Stephens. And mr. Stephens identified him, as the man who shot his wife.” Within the opening credits the viewer is guided towards an ‘innocent narrative’ of Brenton Butler, by the opening statement of McGuinness. This narration continues throughout the documentary, whereby McGuinness and Finnell both give out details regarding the case. Through the continuous subjective narration the viewer gets a

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biased version of events, although these ultimately lead to the exoneration of Butler. Ann Finnell is also shown in her office, talking about the numerous flaws of the case, in order to juxtapose the established story of the court. The information that is distributed to the audience is done merely through the explanation of the defense team, together with the court footage. The narration is very restricted as we only see and hear the story from Butler’s defense team and his family. Figure 15. Finnell and McGuinness in Murder Throughout the documentary the audience is on a sunday Morning witness while Finnell and McGuinness lay the flaws of the court trial bare and try to prove the innocence of Butler. The prosecution, family and friends of the deceased, witnesses and/or the police are never seen to speak directly to the camera, only through court footage are we able to know Figure 16. Ann Finnell in Murder on a Sunday Morning them. Besides the story being guided audibly by the defense team, the narrative is visually being broken down through the use of intertitles. The documentary is opened with the use of intertitle with the text; “The following events took place in Jacksonville, Florida”, distinctive for the story structure throughout the documentary. Through the use of intertitles the documentary is divided into fifteen different segments. These intertitles divide not merely the court case into easily understandable divisions but also give the possibility to counter the established narrative step by step. How the given testimonies go against the established narrative will be discussed more in detail in the second chapter regarding testimony and performativity, but within image … the clear distinctions within the narrative are made visible through intertitles, whereby the narrative is constructed. By breaking down the case in these segments allows every official Testimony to be countered by the defense team. The intertitle gives

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Figure 17. Structure in Murder on a sunday Morning the start for the specific part of the case, cuts back to the defense team, juxtaposes this image with the official statement being made in the court case, and refutes this statement by another juxtaposition. This is done throughout the entire documentary and will be discussed more throughout the testimony chapter. Information comes only from two places; the testimonies and performativity of the defense attorneys and the official testimonies from within the court. This information is guided through the use of intertitles. The presented information of the official testimonies and the court material is questioned through the use of juxtaposition with the testimonies and performativity of the defense team. Through these juxtapositions the audience learns that most of the official testimonies within the court are not true. Because we only receive the ‘true’ story through the performativity and testimony of McGuinness and Finnell, and because they are introduced as the main protagonist, by speaking before the camera, does the defense team achieve authority. “Narration is the process by which the plot presents story information to the spectator” (Bordwell and Thompson 92). These documentaries all have a very specific way of distributing information. Within Murder on a Sunday Morning the authority is achieved by the defense team and are official testimonies questioned through the use of editing and performativity of them. By using intertitles the narrative is clearly structured. Within Trials of Darryl Hunt the narrative is structured, not by intertitles, but by showing newspaper headlines,

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combined with explanations provided by, largely, the defense team and Hunt’s supporters. Paradise Lost is structured into two parts; the trial of MissKelley and the trial of Baldwin and Echols. Within these two separations both sides of the families get the opportunity to speak before the camera, opposite of how the narrative is told within the other two documentaries. But how these testimonies are told and how they achieve authority is something to be elaborated upon. Within the next chapter I will look at the testimonies and how they are able to achieve authority, and therefore question or emphasize information.

2). Evidence and representation of testimony As the narrative structure of the documentaries has been mentioned in the previous chapter I will continue this chapter by looking more closely at the audible and visual aspects. How does visual and audible evidence add to the question of narrative concerning the truth claim of documentary? The concept of testimony, editing and performativity will be examined throughout this chapter.

“Witnessing is also the discursive act of stating one’s experience for the benefit of an audience that was not present at the event and yet must make some kind of judgment about it” - John Durham Peters (in Biressi, 401)

Within this chapter I will look at the different kinds of testimonies that are used throughout the documentaries. These testimonies are important as they make up the entire court case, whether these are eyewitnesses pointing the blaming finger towards the suspect, expert witnesses who explain evidence or character witnesses vouching or contradicting the suspects character traits. Testimonies are able to add or contradict the authority of the documentary and its alternative version of the truth. With this analysis I will show that the divers strategies and techniques regarding testimonies are used, within documentary, to present the alternative truth. Hereby I will look at two different kinds of testimonies that are used throughout the documentaries that are based upon the dual structure between the court and the film. The first kinds of testimony are the ones that are given within the court case, and are therefore part of the narrative structure of the justice system. These testimonies have not been influenced through the

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presence of the camera, although this might be disputed as well, but are considered to be mere representations of the court case. Through editing these testimonies can be enforced or diminished. The second kind of testimony that will be examined are the testimonies given before the camera. Hereby I will look at how the documentary highlights the performative character of the social actors, other media and the documentary itself. The act of testifying and of the testimony itself holds within it the act of witnessing and memory. By witnessing an event or people certain statements can be made through the act of testifying. Testimony therefore holds a certain power in relation to the past by finding traces of it in the present, according to Linda Williams (Nunn, 415). Within the court case and the juridical-crime documentary there can be a distinction between two kinds of testimonies, the testimony given in court and the testimony given before the camera. The ‘official’ testimonies are the testimonies that are given in an official, governmental setting, like the courtroom or police station. By looking at the editing surrounding these statements their truth claim can be enforced or diminished. The other testimony that can be given is in front of the camera. Hereby the journalistic interview guides the statement given, although this is not explicitly noticeable while viewing these statements. Hereby the documentary gives a platform for the social actors to give out a testimony, which would not have been present during the court case. The viewer becomes aware of the constructed nature of the testimonies given before the camera when there is a moment of disruption. This can be by addressing the film crew, a question asked by someone behind the camera or something similar. The constructed nature is also explicitly shown through the performative statements that are given by the social actors, by giving a performance before the camera or addressing the camera as if it were a person to be spoken to. The performative testimonies will be examined in the next chapter, whereby the participants are hyperaware of the camera. According to Spence and Navarro are “testimonies set out to uncover, identify and interpret the reality” (43). By documenting their experiences we perceive “the speaker’s subjective feelings, beliefs and values” (43). Spence and Navarro also state that “[…] Recollections are subjective and memories, like values, and beliefs, are conditioned by circumstances, points of view and ways of thinking. Testimony provides data for analysis, not a simple conclusion”.

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Testimony should thus be analysed, not simple taken for granted. Testimony will be analysed by looking at the three different versions, the surrounding, mise-en- scene and the bodily responses, as well as editing strategies. Bodily responses can give emotional evidence that reinforce or diminish certain claims, by analyzing the pitch, tempo, tone, style hesitations in speech, facial expressions and body language. The testimonies portrayed within the documentaries have an evidential function to illustrate another narrative than the established truth of the court. Within the ‘official’ testimony chapter I will look at the possibilities for editing to contradict or enforce the given testimonies, within Performatity there will be an analysis of the testimonies given before the camera, as well as the performance given by social actors when they believe that the camera is off. Both testimonies serve as evidence to illustrate an alternative truth.

2.1 Official Testimony Within this chapter I would like to look at the ‘official’ statements that are given by the social actors in the documentary. These testimonies are given within official settings, like the courtroom, or police station. I would like to argue that the testimonies that are given are enforced or diminished through the use of editing, whereby they uphold an evidential function. Court images lend the ‘objective’ fly-on-the-wall technique whereby the general assumption is that the camera merely observes and records what is happening before its lens. This technique gives the viewer the feeling of objectivity and an ultimate truth. Within this chapter I will argue that through the use of editing the given official testimonies are countered or reinforced. Murder on a Sunday morning is very explicit in contradicting every testimony made against the accused. As the documentary is solely based upon evidence and testimonies presented by the defense team. Official testimonies are used as they appeared in court, but they are contradicted by using testimonies by people that appear before the camera. Hereby there is a clear distinction between the two different testimonies that are gives. Because the testimonies that are given before the camera are only by the defense team as well as family of the accused, these statements can seem to be biased. The prosecution does not have the opportunity to defend themselves, they way as the defense team can. Throughout Murder on a Sunday Morning the testimonies given against the

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accused Brenton Butler are juxtaposed with contradicting statements to diminish their power. As James Stephens, “The eye witness”, as is portrayed by intertitle in the Figure 18. Intertitle in Murder on a Sunday Morning screen, takes the stand, the image of him in the stand is constantly interspersed with images of the legal defense team (12:03). We see the defense team arrive at the scene of the crime, talking to each other about the case, regarding how the couple arrived that morning, what they were doing and Figure 19. Stephens' testimony in Murder on a sunday Morning holding. Then the testimony of James Stephens starts; “I saw a black gentleman walking down the street, maybe a 100, 150 feet away […] All of a sudden there was somebody in my face, and my wives face, saying give me your pocket book […]”. This again juxtaposes with the defense team, on the scene of the crime, as they reenact the crime until the moment of the gunshot, which is enforced through a crime scene photo. The testimony of James Stephens is reenacted throughout his statement in order to show the discrepancies in his story. The distance factor is considered to be the discrepancy that the defense team, as well as the documentary, Figure 20. Finnell & McGuinness in Murder on a Sunday Morning wants to show in order to eliminate his story as a credible version of the truth. By reenacting and showing the sight of the crime the audience is able to perceive the unlikelihood of his story, which is enforced by the question “All of a sudden he was right in front of ya? 2,5 feet away, without a warning?” Because the audience is aware of the actual distance, by seeing this footage interspersed, that needed to bridged, the statement of Stephens is abolished through editing. Besides the distance, the clothing is also considered to be one of the discrepancies that needed to be addressed, in order to fully abolish his statement. “You did not see a logo on the shirt he had one, did you?”, asks Ann Finnell, defense attorney. “No ma’am” is the answer from Stephens. Immediately after his answer we again turn to the defense team, which talks about the physical evidence found they are going to examine, found

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at the crime scene. As they show the clothing of the defendant a logo on the front of his shirt is clearly visible. Within mere minutes the entire eyewitness statement, as was mentioned in the intertitle earlier, has been abolished through the use of editing, by showing the discrepancies in his statement. This is also done with the “detective Glover – the Confession” intertitle (44:51). We see detective Glover come into the courtroom and walk to the witness stand, as defense lawyer McGuinness start talking “They questioned Brent over a period of 12 hours and they brought in, as what I regard, a specialist in obtaining confessions”. As McGuiness’ voice is used here without actually seeing him, he is considered to be an voice-of-god. He talks and gives out information regarding the case, as a all- knowing informant, guiding over the case. As McGuiness becomes visible we hear him talk about the specialist and his interrogation techniques. “That man punched him in the stomach twice, and punched him in the face. They beat a 15-year old boy because he said he was innocent.” After his testimony the pictures of the injuries of Butler are

Figure 21. McGuinness & Glover in showed and talked about before the camera, which Murder on a Sunday Morning enforces the notion that the upcoming statement by detective Glover must be false. By putting the testimony of McGuiness first, enforced through the pictures, the upcoming statement of Glover is overshadowed, and not to be trusted. Discrediting the statement before it has even started is also done with the testimony of detective Darnell. As the intertitle starts; “Detective Glover – the confession” Glover is shown outside the courtroom in the hall way. Again the overarching voice of McGuiness is heard; “They knew they didn’t have a case, so a detective went in, and he wrote down what he wanted […] and he threatened a 15 year old […] there was no truth in it, but it was close enough for government work.” Here again the testimony presented through the intertitle is discredited before it has even begun. Every claim that has been made in the court case, of Murder on a Sunday morning, is introduced through the use of an intertitle. The use of the intertitle highlights every claim that is made, as well as Figure 22. Intertitle in Murder on a Sunday Morning

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every time that the defense team has had the opportunity to go against the existing narrative. Every statement, being introduced through the use of an intertitle, made against the accused is undermined through the use of editing throughout Murder on a Sunday Morning. The testimonial before the camera, by the defense team and family members of Butler, are used to go against the existing narrative of the American court. Throughout this film McGuinness and Finnell are the authorial voices that guide and connect the footage with each other. Other voices are not permitted to give insights regarding the court case, besides the actual court footage. The trials of Darryl Hunt uses editing as well to emphasize certain aspects of the case. The official statement made by Hunt in the court room has been preceded with the sound recordings of Hunt on his first appointment with his defense attorney. Hunt states; “Tisdale said he offer’d me 12.000 dollar if I

say, that Sam killed, whatever, did the crime.” He continues by stating that he doesn’t want the money if he has to tell a lie. This is then again emphasized by an older Hunt, as he recants his experiences of the time. By mixing official testimony, together with sound recordings and the testimony given before the camera, highlights and

Figure 23. Hunt gives statement emphasized the trust that is given in Hunt. Hunt is in Trials of Darryl Hunt given authority and power through his statements and their emphasis, especially be his statement not to tell a lie on a friend. The official testimonies of prosecution do not achieve authority, as they are all witnesses from the prosecution. The official statements made in the court room are juxtaposed with either evidence, like sound recordings, pictures or other footage, or are juxtaposed with character building testimonies by his friends and family. The official statement of Johnny Gray, who made the 911 call under the name Sammy Mitchell, is contradicted through sound recordings of him and Larry Little, along with photo evidence of their meeting.

Figure 24. Johny Gray in Trials of Darryl Hunt 37

That false accusations are used is shown through editing within Paradise Lost when witness Michael Roy Carsion comes to the stand. In his official testimony he speaks about how Baldwin had confessed the murder to him. He states: “I asked him, did you do it? He said yes, and went into detail about it. He told me how he dismembered the kid, he sucked the blood from the penis and the scrotum and put the balls in his mouth.” His statement is first contradicted through the court footage, whereby we see a defense attorney question his testimony; “The second time you saw him, he immediately confessed?” After this questioning extra information about the case is delivered to the audience by an intercut to a situation outside the court room. Hereby we see the public defender discuss the court case with two other men; “I got a phone call from the counselor in jail, who said that Carson is gonna testify Figure 25. Carson in court & defense attorney in Paradise Lost against Baldwin, and I know he is lying. The counselor gave Michael Carson the details he is going to testify with in the trial.” Dr. James Rasicot continues; “The counselor called the prosecution and told him what a liar he was, and they still used the kid, and now they are keeping out the background of the kid. ” Another example of the flaws of the trial is the misuse of evidence. In this example the filmcrew of HBO became actual part of the investigation, as they received a knife by mr. Byers, which they handed over to the police. We see and hear the detective, and later also the DNA expert talk about the blood on the knife. The official testimonies are in this case underscored

Figure 26. Evidence in Paradise Lost

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by the use of an intertitle to explain more about the characteristics that the knife was in. Because the documentary then cuts back to the board room of the defense attorneys, where they discuss the suspicious circumstances of the knife, opens up doubt with the audience. Because the given statements in the court have been juxtaposed with other ‘unofficial’ statements, they rase doubt in the minds of the audience. The difference that Paradise Lost has with the other documentaries is that the elements of the flawed trial were highlighted by the filmcrew, but were unable to come with hard proof, as this wasn’t available at the time, as was the case with the other two documentaries, who were edited after the exonerations took place. The ‘official’ testimonies against the accused, throughout these three documentaries, are almost all being interspersed with other testimonies, found footage, visible evidence and pictures to go against the existing narrative. By using editing discrepancies within the criminal case, and therefore the testimonies, are shown. These documentaries give a strong preference for the side of the accused, by giving authority to their statements and redeeming authority and power on the prosecution. The truth of the court can be questioned through the use of editing whereby the flaws and contradictions are visible.

2.2. Performativity

Mark Buyers, stepdad to one of the deceased boys, talks to one of the protestors of the court case. They speak in a normal voice and talk about regular things in live. Buyers asks them “How they are doing” and talks further with the other people surrounding him. Suddenly the stepdad is asked; “Why are you being so mean all of a sudden?” as the stepfather starts reacting strange. “Is this because the cameras are rolling all of a sudden?” Continues the protestor. Paradise Lost In this example we see a glimpse of the performativity features of the social actor within documentary. Witnesses are able to give out their testimony before the camera, because the documentary gives them a platform to be heard. By analysing how the participants differ in reactions, between the cameras being on and off, we can speak about the constructed nature of the documentary and the media itself. Besides the actors being aware of the camera rolling, the media

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have a performative nature as well. I would like to distinguish the performative character of the social actors within the documentary, as well as the performativity of the documentary and media itself. How does the camera change the performances of its main characters, but how is the media itself a performance as well? How does performativity contribute to the authority or to the de-legitimization of voices or witnesses? The choices that the filmmaker has made, have been made visible in previous chapters by looking at the audial, visual and narratological elements. Through editing, juxtaposing of audio, visual, and narration every documentary can be perceived to be a performative act by its makers. In this chapter I would like to point out several performative acts within the juridical documentary themselves that highlight their own constructed nature and the constructed nature of media itself. Baudrillard suggests “images build one upon another, eventually masking the fact that the real that was once represented by the sign has ceased to exist.” (Adkins 14) Baudrillard employs this statement to address the constructed nature of the media and the simulation of reality. Images are layered endlessly over each other, whereby the lines between the “real” and filmic are blurred (Adkins 14). He elaborates on this by stating that there are four phases of the image; “The image first reflects reality, then masks and denatures that reality, then hides the fact that the reality no longer exists, and finally becomes its own reality” (Adkins 15). The representations of the court trials, through images and sound, have replaced the actual court trial. These replications have become more accurate and more real than the actual events. According to Adkins “the image created by the media became the reality.” (15) We can no longer perceive the court case without thinking of the documentary images as the actual court case and therefore the reality. By building images over images the documentary that first reflected reality, but eventually becomes reality. This seems to be the ultimate goal of the documentary, as they try to portray a contradicting truth, by ultimately becoming reality. The media plays an important role in creating the conflict in the first place, according to Adkins (16). The media creates the event, simply by their presence. By being present at an event the media considers the event to be newsworthy. The question of performativity is tied to the nature of documentary itself, which has been touched upon in the previous chapter regarding its truth claim and its narrative. On several occasions we can witness the constructed nature of news

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reports and the performativity that its journalists, news anchors and film crews employ. On these moments the audience is aware and reminded of the constructed nature and performative character of the documentary. Adkins states that the camera, by its mere presence, shapes the participants and their reactions to the murders (20). Through the presence of the camera a certain reaction is evoked within its participants. This response may appear real and genuine, but must ultimately be regarded as ‘hyperreal’ (20). Participants ultimately look for a role to play before the camera. The performativity of the social actors within the documentary is based upon the distinction between being unaware or (hyper)aware of the camera rolling. As stepdad (byers) is unaware of the rolling of the cameras his speech is normal, polite and interested. As soon as he finds out that the cameras are recording his overall body language and speech changes. These changes characterize the performativity nature of social actors within these documentaries. Bill Nichols spoke of the performative documentary, when taking up his six forms of documentary modes. The performative mode allows the filmmaker to construct subjective truths, whereby often the stories of marginalized groups are being told. The emotional and subjective experiences are able to come forward by allowing social actors to play out a role before the camera. The Paradise Lost series is full of performative acts that a distinction and selection between them is hard to make. The influence and presence of the camera evokes multiple ‘hyperreal’ reactions as is clearly visible within the several scenes of family members of the deceased boys. Stepdad Buyers’ change in mere seconds is similar to the scene of Pam Hobbs, mother of Stevie Branch(Paradise Lost: child murders at Robin Hill 06:20). We see Pam joke with the news anchor, laughingly saying “on TV”, as the news camera isn’t rolling yet. When the reporter takes up his microphone to ask Pam the first question, we see her face change into a serious, Figure 27. Hobbs in front of news grieving mother with simultaneously soft, calm voice. camera in Paradise Lost Pam is caught in the act of playing the part of the grieving, emotional mother,

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manipulating and being manipulated through the presence of the camera. Because the cameraman and the reporter are visible in the shot, we become aware that the camera affects the actors before the camera, but that the media itself also performs a certain story. The media want to portray Pam Hobbs as the grieving mother, which is also clearly made visible by asking certain suggestive questions like “have you contemplated suicide?” The usage of injurious speech is also made evident in this scene. Speech is to be considered a large part of the performativity. Speech has an unbelievable impact as it holds the power within a court case to condemn or acquit a suspect. The documentary records the performativity that the media have within them through reports and journalistic interview. On the other hand does Hobbs also perform a role before the camera. Within mere seconds she is seen to change from a happy, giggling woman to a grieving, angry mother. As mother Pam Hobbs states that the three accused are the murderers she connects this to their appearance and condemns them by it; “Just look at the freaks, just look at them. They look like punks.” That the performative characteristics of the media is not only visible within the traditional media is shown as John Mark Byers, stepdad to Chris Byers, gives out several staged performances, along with his wife as well as alone, before the camera throughout the 3 different documentaries of Paradise Lost. His first performance before the camera is when he quotes the bible at the place of his son’s murder; “Though I walk through the valley of the shadow of death, I shall fear no evil, and I’m not scared of the devil, I know who my comforter is….” (Paradise Lost: child murders at Robin Hills). Byers continues to quote the bible as he addresses the murderers of his son directly towards the camera.

“Jessie Miskelley junior, Jason Baldwin and Damien Echols, I hope your master the devil does take you soon, I want you to meet him real soon, and the day you die I am gonna praise God. And I’ll make you a promise, the day you die, every year on may 5th, I’m gonna come to your grave side and I’m gonna spit on you, curse the day you were born and I’m sure while I’m standing here, I’m gonna have to let other bodily functions let loose upon your grave. I promise you as God is my witness, I’ll visit all three of your graves.” (Paradise Lost: child murders at Robin Hills)

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The over-the-top performance seems to be rehearsed and staged as Buyers lets all his thoughts regarding the West Memphis three go. Because Byers’ performance feels staged and rehearsed the viewer is wary of his testimony. The vibrant speeches held by the Stepfather feel unreal and exaggerated as if they try to compensate for something. Not after we have seen him perform and give out sermons directly towards the camera we understand the viewer is the ultimate goal and public. The performance of the media itself is also apparent throughout Paradise Lost as we see a news anchor practicing in front of a camera. Even here it is not t mere representation and telling of what is happening, but a rehearsal and clearly constructed narrative that is being told. Although Paradise Lost allows the highly staged performances of the parents’ victims, it is the only film that gives a platform for the mourning parents to raise their voice. That they are given a space to speak within the documentary doesn’t mean they convey authority. Because of the highly staged and performed acts they actually lose the power they may have had.

Figure 28. Byers in Paradise Lost

Murder on a Sunday Morning also constitutes of performative acts, although quite different than in Paradise Lost. As the narrative is structured and guided by the voices of McGuinness and Finnell as they perform the role of lawyer on screen (as well as off), the documentary is full with its persuasive characteristics, every time they come before the camera. Although not as highly constructed and staged as is the case with Paradise Lost, Murder on a Sunday morning also has some performed acts within it. In figure we see McGuinness and Finnell at the scene of the crime. This scene has been preceded with the intertitle of James Stephens – the eyewitness, as was shown earlier. In order to show the discrepancies in the statement made by Stephens, McGuinness and Finnell return to the scene of the crime to re-enact the murder.

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Through the re-enactment of the testimony, together with the authority that McGuinness and Finnell have gained, the audience becomes aware of the flaws in the story told by Stephens. Through re- enactment, although they are not as elaborate as for example the Thin Blue Line, the lawyers are able to get some cracks in the statement. “I saw a black gentleman, about 100 to 150 feet away from us, all of a sudden there was someone in my face and my wife’s face, and said give me your pocketbook”, Figure 29. McGuiness & Finnell at crime scene in Murder on a Sunday according to the statement of Stephens. The official Morning statement keeps intercutting to the scene where McGuinness and Finnell are talking and re-enacting the scene. Through the re-enactment it becomes apparent that the distance that had to be bridged is too great to make, without them noticing it. After this has been established, the documentary cuts back again to the court room, where we see Finnell questioning the witness, with regard to the discrepancies they have shown seconds before. This is also done with the examination of the purse of misses Stephens. The audience is first introduced with the subject through the use of the intertitle, where after it immediately cuts back to the court room, where we see a witness sitting in the stand. This is followed by two different performative scenes whereby McGuinness and Finnell explain, before the camera, what has happened and what the potential flaws are. McGuinness takes us to the scene where the

Figure 30. McGuinness & Finnell purse of Mary-Ann Stephens was found by a bystander. at police station in Murder on a sunday morning He explains; “To put trash in, you’d have to lift the flaps, and touch it, probably leave fingerprints, but the police never brought an evidence technician out here to check for fingerprints and evidence.” He continuous “The distance between here and the Inn, is about 9,5 miles, approximately 20 minute drive without traffic. This would be quite some journey for a 15 year old to make.” After this scene the documentary cuts to the witness, previously seen in the witness stand, together with McGuinness in his yard, and again back to the courtroom with Stephens (not to be confused with mr. Stephens, the husband of the murder Mary-Ann Stephens) in the witness

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stand. McGuiness, and Finnell, regularly take on the role of investigators and lawyers before the camera. Through their performative acts is the audience aware of the malfunctions of the police, the discrepancies in the stories of witnesses and flaws made within the criminal investigation. Because McGuinness as well as Finnell get several opportunities to speak before the camera and explain the situation they have gained authority with the viewers, as they appear to be the main protagonist instead of Butler. The witnesses that have come forward against Brenton Butler are all de-legitimized though the performative acts and statements of the defense attorneys, as they are allowed to speak before the camera. Murder on a Sunday Morning gives a fairly biased representation of events, although Brenton Butler got exonerated. This is quit the same within Trials of Darryl Hunt, although done slight differently. The defense team and supporters of Darryl Hunt get the overall attention and opportunity to speak before the camera, than the prosecution and family of Deborah Sykes get. Throughout the documentary the only people that speak on behalf of Sykes are the prosecution, with its numerous different prosecutors as they switch during trials, the mother of Sykes and her former boss, as he introduces the day she went missing. On behalf of Hunt there are endless occasions that friends, family, lawyers and heads of funds or committees speak on his behalf. Through this distinction in statements that are given, in number but also in content, whereby often emotional appeals are made towards the audience regarding the injustice that has occurred, authority is given solely to Hunt and his bystanders. Defense attorney Mark Rabil is one of the persons who regularly give out statements before the camera, although definitely not the same as is the case with Paradise Lost and Murder on a Sunday morning. The testimonies within Trials of DarryLHunt are more based upon (re)telling the story of Hunt, with emphasis on his personal character and emotional appeals than re-enacting or overtly performing before the camera as is done within the other two Figure 31. Mark Rabil in Trials of Darryl Hunt

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documentaries. The performative acts of the social actors are used as an emotional appeal to the audience without over-emphasizing or staging the scene, as can be said of Byers or Hobbs in Paradise Lost. The testimonies that are made before the camera are not the performative acts, whereby the social actors convincingly perform a role or re-enact, as can be said of the other two films. There is one instance in which the performativity of the film has been made clear, and whereby the audience is again reminded of the journalistic interview that is given before the camera. Special prosecutor Bowman talks about how he had to reinvestigate to see if there was a case. “And was there a case?” is the question asked by an unknown source. The audience is reminded that this footage is not a mere telling of a story before a camera but that this is a interview, in which questions are asked and thus a guidance towards the conversation is given.

3). Private trauma as mass entertainment and the witnessing of suffering.

“Scenes of tragedy and catastrophe are part of the everyday experience of audiences, who are invited to virtually participate in the suffering of distant others” Maria Kyriakidou (215).

To question the truth of the court the audience needs to be emotionally involved with the case. To involve the viewers emotionally there are several different stylistic devices that can influence the public reaction by focusing on the narrative of the wrongly accused. Films and documentaries have the ability to address its viewers as public and emotional beings, but how do they do this? Gilliam and Iyengar state, “Media representations of crime successfully engage the public through the powerful impact of events of ordinary people, the associated drama and emotional draw of the story.” (Stratton 875) These documentaries represent errors within the criminal justice system, which has failed to protect the innocent and convict the guilty and “serve as a public reminder to the fallibility and fragility of the criminal justice system”, according to Stratton in his article “Innocent narratives: wrongful conviction, Australian

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story and the influence on public opinion” (876). In this chapter I will look at how the audience is made into a witness of the constructed truth that goes against the court narrative. How is the audience engaged with these documentaries? I would like to look at the witnessing of mediated suffering, as mentioned by Kyriakidou in her article “Media witnessing: exploring the audience of distant suffering”, to give a better understanding of audience engagement with documentaries (216). According to Kyriakidou “media witnessing, with its close ties to human suffering, first, has its affective nature, due to the relation to human vulnerability, pain and trauma; second, its cultural endowment with a sense of responsibility to interfere with and act upon the suffering witnessed” (216). Several theoreticians as Ellis, Frosh, Pinchevski and Peters have touched upon the concept of media witnessing. I would like to begin by mentioning some of the key aspects of media witnessing as mentioned by Ellis. Ellis employs mundane witnessing as the “imaginative moral demands images of suffering make to their spectators.” By using the audio-visual, sound and detailed imagery a mediated sense of liveness and immediacy is obtained, which leads to emotional implications of witnessing by its audience (Kyriakidou 216). This sense of liveness and immediacy give the viewer its emotional appeal to the ‘real’. Whatever is occurring on screen is actually happening at this moment or has already actually occurred. This was especially the case with the Paradise Lost trilogy, as is shown explicitly with the second and third film. The case of the West Memphis Three engaged the audience through the affective nature, whereby pain and trauma was visible, but also carried within it the cultural endowment and the responsibility to interfere and act upon the witnessing of suffering of the three. John Durham Peters states that witnessing can refer to “an actor (who bears witness), an act (bearing witness), a statement or text (Witnessing testimony) or the ‘inward experience that authorizes the statement (the witnessing of an event)” (Kyriakidou 217). The audience can thus become a witness by looking at the medium on which an actor bears witness of a testimony. The public has become a witness of the witnessing actor, but also of witnessing the text through its medium, which may ultimately become the new established truth. Frosh and Pinchevski distinguish three different form of witnesses; ‘witnesses “in” the media, witnessing “by” the media, and witnessing “through” the media” (in Kyriakidou 217). Witnesses ‘in’ media are those considered to be

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the sufferers of trauma and crises, who will be represented audio-visually. Events of crises and traumas are witnessed and reported by the media, who will transform their experiences into news stories or documentaries. Filmmakers and journalists are witnessing by the media, as they have been given agency from the media. By becoming witnesses ‘through’ the media, the public is confronted with an overwhelming sense of moral responsibility and calls for attention and participation of its audience, as what Ellis has called the mundane witnessing. In this chapter I want to look specifically at the witness through the media, how the audience looks at the witness in the media and how the witnessing by the media is done. The audience becomes witnesses ‘through’ the media, as mentioned by Ellis (Kyriakidou 217). Ellis states; “Viewers are confronted with a kind of ‘painful knowledge’, which is accompanied by ‘an aching sense that something must be done’ for the alleviation of the suffering witnessed.” The witnesses of the documentary (the audience) have made meaningful connections with the witnesses ‘in’ the media (those involved in the court case). Watching the suffering of distant others on documentaries is emotionally compelling as a result of the implicit knowledge that everything that is on the screen is ‘real’. The documentaries achieve this truth claim through showing the flaws of the trial, the underlying narrative of the scapegoat, and through showing discrepancies in testimonies through editing or performative acts. Kyriakidou mentions four different elements of witnessing experience of the public; affective, ecstatic, politicised and detached witnessing, which I will elaborate upon. The affective witnessing is characterised by an “intense emotional involvement with the human pain witnessed ‘through’ the media, empathetic identification with the suffering witnessed ‘in’ the media, but also a conditionality of this involvement on the sensationalist nature of the witnessing ‘by’ the media.2” (220) People portrayed within the documentaries become ‘real’ people, where the public is able to relate with. Beck states that there is an emergence of a moral force, whereby the viewers are connected to the emotions of sufferers on screen, which ultimately leads to empathy (Kyriakidou 220). According to Ellis empathy and emotions “are provoked by the perceived experience and the perceived feelings of the other.” (73) The victim of the screen must be perceived as a similar person as the audience in order to receive

2 Witnessing ‘in’, ‘by’ and ‘through’ the media as explained by Frosh and Pinchevski (Kyriakidou 217).

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empathy. The audience is able to relate to victims of injustice in media stories, when the sufferers posses agency (Ong 181). Agency is derived through visual representation, like close-ups, and naming the sufferer, which humanizes him. Emotions that are coupled with the images of suffering have two elements; frustration of being unable to act upon the injustice & the viewers engagement seems to be conditional on an assumption of sameness connecting the audience to the victims. Victim becomes an object of concern, reflection and emotional engagement, through the employed narrative, the performative character of the documentary and the editing choices made by the filmmaker. Empathy is created by emphasizing on the narrative of the wrong that has been done to the accused, the flawed trial and the concept of the scapegoat. Within Murder on a Sunday morning and trials of Darryl Hunt agency is derived by the defense attorneys and supporters of the accused. Because they have put the emphasis on the ‘scapegoat’ narrative they show that it could have happened to anyone, coupled with the frustration that the audience is unable to act upon the injustice. Because the Paradise Lost trilogy and story wasn’t over after the first movie, the audience was able to act upon the injustice. Ecstatic witnessing is the second kind of media witnessing Kyriakidou mentions in her article. This beholds the emotional involvement and its expression, previously with affective witnessing, but intensified, and a sense of immediacy. Hereby there is an “intense emotional involvement with the events witnessed, unconditional empathy with the people suffering; and unquestioning acceptance of the media coverage (Kyriakidou 223). The emotional involvement and immersion of the audience has to do with the sense of immediacy with the depicted event. John Ellis states in his article “What are we expected to feel? Witness, textuality and the audiovisual” that “recorded or relayed images and sounds have an immediacy and a presence that cannot simply be denied.” (68) The ecstatic witnessing is applicable to all the documentaries but the sense of immediacy is portrayed the most within the Paradise Lost series. As murder on a Sunday Morning follows the trial and the exoneration there is no apparent need for immediacy, as everything has already happened and the ultimate truth, which has lead to the exoneration, has already been revealed. This is the same case with The Trials of Darryl Hunt, although his ordeal and the documentary spanned over twenty years, but because the documentary came out after the case was resolved, the sense of immediacy and liveness is not there, only in

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regard to possible future wrongful convictions. The intensified emotional involvement and expression, and the sense of immediacy by its public has been made explicit throughout the Paradise Lost second and third film. Hereby we see the direct involvement of its audience as they help with the case, through visual representation within the second and third film. Political and social power and inequality are addressed within the Politicised witnessing. Audience’s Figure 32. Audience active in Paradise Lost: Revelations engagement is coupled with the “search for causes and the attribution of blame and political responsibility for the events witnessed.” (Kyriakidou 224) Documentaries go against the current dominant hegemony and are seen to strive to address political and social power and inequality. “Granting mediated visibility to the “invisible” and voice to the “voiceless” are deemed as social goods”, as stated by Cottle (Ong 191). By granting audio and visual representation to the unheard/unseen, documentaries gain audience engagement. It has become apparent that the three documentaries all strive for political and social power by addressing the inequality of the American justice system. By going against the existing court narrative they give the accused victims a platform to speak out against their unjust treatment. The underlying statement within all these documentaries is that it can happen to anyone, which leads to audience engagement in order to address this injustice of scapegoating. The last type of witnessing by Kyriakidou is detached witnessing, whereby “[describes] the experience of the suffering of others as something remote or ultimately irrelevant to the viewer’s everyday life.” (Kyriakidou 226) Viewers are detached and are considered to be mere spectators. This detachment seems to be justified through geographical and emotional distance. For viewers outside America these documentaries can be considered to be less gripping. The events are outside the moral spaces of the viewers that are not American, because of the geographical distance and emotional distance between them and us. Audience engagement is different outside the United States as the audience is not morally engaged with the text, as it does not constitute our nation. Common to all these documentaries is the narrative of the wrongly accused men, based on questionable evidence, witnesses and governmental misconduct. Stratton states “by eliciting public responses to miscarriages of

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justice, documentaries provide an opportunity for the wrongfully convicted to publicly present the issues central to their case.” (877) Wrongful conviction narratives within documentaries are presented as an alternative to the established court case narrative, given power through the verdict by the Criminal justice system. By providing and constructing a new narrative within documentary, victims of injustice are able to escape the established public narrative, by anticipating on the emotions of its audience. The audience is engaged as a witness, whereby they are emotionally addressed through the narrative of injustice, the urgency for change and the employment of empathy. The presentation, or the sensationalization of reality, as Horeck calls it, gives the audience a sense of voyeuristic gaze and viewer pleasure (154). The audience receives a sensationalized form of reality, as we voyeuristically gaze at the representation of a court case. By being a witness through the media we derive pleasure from the knowledge that what we are seeing is historical accurate. The narrative, based on dramatization, characterbuilding and suspense, builds up on the viewer experience. Through undermining and reinforcing certain testimonies the viewer is guided to a symphatic view of the wrongly accused. Throughout the entire Paradise lost trilogy there seems to be empathy towards the West Memphis three, although this is not too explicit in the first documentary. Only in the second documentary we see the explicit elements of what has gone wrong within the first trial, whereby the viewer gets a better and stronger grasp on the ordeals of the three accused. Within Child murder at Robin Hood Hills empathy is created through the statements of the family and friends of the West Memphis Three. In figure … we see the parents of the accused, stating one by one, after each other that their child is incapable of performing such terrible crimes.

Murder on a Sunday Figure 33. Parents of West Memphis Three in Paradise Lost

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Murder on a Sunday Morning is solely based from one perspective, which will automatically lead to empathy and sympathy with the accused. Because Butler is the object of concern the audience is

emotionally engaged, as his side of the case is the Figure 34. McGuinness in Murder on a sunday morning only one that is being portrayed. A heavily emotional Hunt is shown within the first seconds of the film, which will later be known as the moment when he was released. With the emphasis on statements made that contribute on the character-building of Hunt, as well as the faults that were made throughout the criminal case, the film creates empathy for his cause. The flaws that are made are especially emphasized with the statement of news presenter Shebor, as is shown in figure 32. As Shebor silently

Figure 35. Hunt & Shebor in Trials of Darryl cries and weeps, she tells about how, even she Hunt as news presenter, believed that the events told by the prosecution were true.

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Conclusion

The Paradise Lost trilogy, The trials of Darryl Hunt and Murder on a Sunday Morning all construct a narrative of the wrongly accused men. By analyzing these three documentaries I have tried to highlight the aesthetical strategies used throughout the juridical-crime documentary by looking at the narrative, audial and visual techniques that have been used. These documentaries frame multiple trials filled with error and prejudice, and question the legitimized truths, the legal system and court procedures. The narrative structure that has been used throughout the documentaries all highlight the constructed version of the convenient scapegoat, which has been deployed throughout the actual court case. By highlighting this concept of the scapegoat, all the documentaries go in against the existed truth. The accused have been highlighted as the ‘easy’ scapegoat through being moral deviants, like the West Memphis three, or through the color of their skin, as is the case with Darryl Hunt, as well as Brenton Butler. The common notion that it could have been anyone is shown throughout the documentaries, as statements are emphasized or enforced through editing. The narrative of the scapegoat would not have have been well known if it was not for these documentaries, as news presenter Shebor emphasized in her statement in Paradise Lost. The audial and visual strategies that have been used are visible throughout the testimony chapter. The official testimonies that have been used in the documentaries are contradicted and juxtaposed with other statements, footage or audio in order to go against the established truth narrative. Through reenactment, as is done with Murder on a Sunday morning, the documentary is able to enforce the statements by the defense attorney and show discrepancies in the established narrative. Within Paradise Lost the official testimonies are juxtaposed with discussions of the defense attorneys whereby they address the flaws. The performative scenes within Paradise Lost however, do not give authority and power to its social actors, as is the case with Murder on a Sunday morning. Because of the overtly staged and performed acts, the parents of the murdered children are delegitimized. Trials of Darryl Hunt doesn’t use official testimonies the same way the other films do. Official testimonies are decreased and/or enforced in authority through the use of sound recordings and images, which are juxtaposed through editing. There are no overly performative acts,

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except for the statements made by friends and family who plead for their innocence. Although Paradise Lost, with all its performative scenes, feels highly staged and performed, it is the only film that gives the mourning parents an platform to speak their mind. Murder on a Sunday morning is highly biased as, besides the court footage, are only the two defense attorneys able to speak before the camera of the documentary. This is introduced by the opening sequence when McGuinness introduces himself, before the audience is well introduced with the topic. Different than the other two documentaries is that the attorneys, and especially McGuinness, are considered to be the main protagonist, instead of the accused Butler, who at first sight seems to be the main character. How its public perceives the documentary is shown throughout the third chapter, by looking at the way the documentary addresses the audience. The audience is invited to judge the new narrative posed by the documentary in order to go against the existing narrative. Because all films enforce the concept of the wrongly accused and the idea of scapegoating, there is an emphasis on the events of ordinary people. By creating an affective nature with its victims, the wrongly accused, and the cultural endowment, whereby the audience has the responsibility to interfere and react upon the injustice, empathy is created. The audience becomes a witness of the court case, through its representation in the documentary, whereby they are made aware of the flaws made in the criminal justice system. “The film serve as… it serves as the trial that never was; it presents the evidence that wasn’t presented, and the audience becomes the jury” as is stated by Manzella (1235). The films try to create a new narrative to go against the existing narrative given by the court case and enforced through the American justice system. Through personal interviews, showing of inconsistencies of evidence, and the overall narrative of the flawed trial and the scapegoat the real story is able to unfold through the documentary. The documentaries functions to engage people, not merely as an audience, but also as witnesses and possibly participants. What can be considered ultimately as the saddest fact, after analyzing the three documentaries, is that the story regarding the murdered victims has been distanced to the background. The story of the victims has been faded from the public consciousness to the background, through these documentaries. It is no longer about finding the ‘real’ murderers and solving the crime, but to correct the previous mistakes made by the Justice system. The ‘first’ victims of the brutal

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murders have been replaced by ‘second’ victims, the accused and victims of the wrongdoings of the American justice system. As Adkins states at the end of his article regarding Paradise Lost; “In the end, […] the three boys were murdered have essentially faded from public consciousness, while the ensuing events continue to command our attention more than ten years later” (22).

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Media

Paradise Lost: child murders at Robin Hills. Dir. Joe Berlinger & Bruce Sinofsky. HBO, 1996.

Paradise Lost: Revelations. Dir. Joe Berlinger & Bruce Sinofsky. HBO, 2000.

Murder on Sunday morning. Dir. Jean-Xavier de Lestrade. Direct Cinema and HBO, 2001.

The trials of Darryl Hunt. Dir. Ricki Stern, Annie Sundberg. Break Thru films and HBO, 2007.

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