About the Play:
In the summer of 2000, actors Jessica Blank and Eric Jenson interviewed sixty people who had been wrongly convicted of murder, condemned to die and later exonerated; twelve of these stories made it into the initial reading of the play The Exonerated. Wishing to tell the stories more deeply, Blank and Jenson selected six for the final version, those of Kerry Cook, Gary Gauger, Robert Hayes, “Sunny” Jacobs, David Keaton, and Delbert Tibbs. With few exceptions, the text in The Exonerated is taken verbatim from their interviews or from court records. Although Blank and Jenson deliberately included interviews from individuals whose circumstances varied widely, each was wrongly accused of a horrific crime and condemned to die.
As I was researching this production, one question kept resurfacing: how could this have happened? As Bumgartner et al have pointed out in The Decline of the Death Penalty and the Discovery of Innocence, many of us, myself included, though we understand in theory that no human institution can be infallible, nevertheless are very trusting of our legal system. However, many are increasingly taking note of recurrent problems with our legal process. Problems like jailhouse informants. Witness misidentification. Inadequate legal representation. Prosecutorial misconduct. Coerced confessions. Junk science. An assumption of guilt. These are some of the most common causes of wrongful convictions, all of which are explored in The Exonerated.
-Dassia N. Posner, CRT Dramaturg
Kerry Max Cook
Photo: Lindsey Perkins
Gary Gauger
Photo: Alex von Bergen
Robert Earl Hayes
Photo: Elizabeth Mundschenk
Sunny Jacobs
Photo: Phil Wilkinson
David Roby Keaton
Photo from Deadline
Delbert Lee Tibbs
Photo: Barred from Life
Meet the Exonerated
Program Insert written by Dassia N. Posner, CRT Dramaturg
Kerry Max Cook: (Years wrongfully incarcerated: 21.6)
In 1977, Kerry Max Cook was tried and convicted for murder. Only in 1996 did a court rule that there had been rampant prosecutorial and police misconduct in his initial trial. After three trials, numerous prison rapes, four suicide attempts, and more than 21 years, he was finally released; as a fourth trial loomed, he pleaded no contest to a reduced murder charge in exchange for his immediate freedom. Two years later, it was proven that DNA evidence on the victim’s body matched that of her boyfriend, not of Kerry.
A few months after Cook’s release, Mark Donald of the Dallas Observer commented in a lengthy article that Cook’s freedom from prison did not automatically mean mental freedom:
[F]or Cook there can be no closure. He lives somewhere in the gray between guilt and innocence, acquittal and conviction. Some nights he can't sleep, hearing the jury's verdict in his head. Other nights he regrets compromising himself, making a deal for less than “complete and total exoneration.” Wherever he goes, he has to explain himself: at every job he applies for, in every media interview he grants, to every friend he takes into his confidence. And no matter how convincing he sounds… some people will always wonder, “Yeah, but what if he really did do it?” And it's at those moments that Kerry Cook believes there are some fates worse than death (July 22, 1999).
Gary Gauger: (Years wrongfully incarcerated: 3.4)
In the spring of 1993, Gary Gauger found his parents brutally killed on their family farm. Within hours he had been arrested for their murders and was later sentenced to die. His twin sister approached Larry Marshall of the Center for Wrongful Convictions, who took on Gauger’s case. In March 1996, all charges against him were dropped, but the state attorney continued to make public statements about Gauger’s ostensible guilt until 1997, when two members of a motorcycle gang were arrested; FBI agents had heard them on a wiretap discussing having committed the murders.
In Gauger’s case, his sister’s persistence in getting him legal help contributed significantly to his release. An article in the Eugene Register Guard observed:
In 70 percent of the cases in which inmates asked [the Innocence Project] for help… evidence that would help determine innocence is claimed to be lost or destroyed, though sometimes it turns up later. Even when there is evidence, the wrongly convicted need something else: a champion… “These people are alive… for the most part because they’ve been lucky enough to find somebody in their family or somebody in their community who’s willing to fight for them,” [Larry] Marshall says. “That’s what saved Gary Gauger” (Aug. 15, 1999).
Robert Earl Hayes: (Years wrongfully incarcerated: 7.4)
Pompano Harness Track groom Robert Earl Hayes was convicted in 1991 for the murder of a fellow groom. He appealed the conviction and, in 1995, was given a new trial by the Florida Supreme Court; a St. Petersburg Times article recounted:
The state Supreme Court, in a unanimous decision, ordered a new trial, saying the DNA tests conducted on Hayes, the victim and a tank top found at the murder scene did not meet standards. In this case, the testing method used by a lab technician did not meet national standards for admitting DNA evidence into trial. Other errors and evidence during Hayes' trial, including hair from another individual found in the victim's hand, contributed to the court's decision (June 23, 1995).
His conviction was overturned in 1997. He was released from prison with a bag of clothes and no money; his lawyer purchased him a bus ticket to his grandmother’s home in Mississippi. He told Stanley Cohen, author of The Wrong Men (2003), “I’m trying to build my life back up… I might get thirty minutes of sleep every hour, every night… I don’t know who’s gonna come down the hallway.”
Sonia “Sunny” Jacobs Linder: (Years wrongfully incarcerated: 16.7)
Sunny Jacobs and her partner Jessie Tafero were wrongfully accused of shooting two police officers at a Florida highway rest area. Their acquaintance, Walter Rhodes, who had committed the murders, pinned the shootings on the couple in order to avoid the electric chair. Tafero was sentenced to death. Despite the fact that the jury recommended a life sentence for Jacobs, the judge, a former policeman, sentenced her to die in the electric chair, telling her, “The fact that you have two children is not a mitigating circumstance” (Boca Raton News, Aug. 20, 1976).
That the press seemed to find the thought that a mother of two could be a heinous killer disturbing is reflected in articles published during the years following her conviction. The Ledger emphasized sensationalistic details:
Police say small, slender Sonia Linder… was sitting in the back seat with her 10-month-old daughter and 9-year-old son when she opened fire…. While horrified witnesses watched, Mrs. Linder and the others vaulted over the bodies and into the police cruiser (June 24, 1979).
Rhodes recanted his testimony, first to fellow inmates in 1977 and later in a 1979 affidavit and a 1982 sworn testimony requesting clemency for Tafero.
Nevertheless, Tafero was electrocuted in 1990 in a horrific botched execution; Jacobs was not released until 1992 when she accepted a plea deal that did not require her to admit guilt but did not expunge her record. She reunited with her now-grown children and granddaughter and pursued self-employment as a yoga instructor. She later met and married another exoneree.
David Roby Keaton: (Years wrongfully incarcerated: 2.5)
David Roby Keaton was one of five young men from Quincy, Florida, known as the “Quincy Five,” who were wrongly accused of robbing a store and killing a deputy sheriff. Almost immediately, the plight of the Quincy Five became an actively touted civil rights issue. Shortly after two of the five, including Keaton, were convicted, the St. Petersburg Times ran a series of articles that pointed out the myriad problems associated with Keaton’s arrest: that his coerced confession was extracted through police torture, that he was tried before an all-white jury, and that eight people were ultimately arrested for a crime committed by no more than four. An October 6, 1971 article observed:
The Quincy Five were arrested in January during the course of investigation of other, dissimilar robberies. The Frederick and Keaton confessions differed in several material points and with the testimony of eyewitnesses, disparities became even more pronounced as the state developed eight defendants in a case where witnesses saw only three– at most, four– and only one getaway car.
Three individuals, known as the “Jacksonville Three,” had also been arrested. Although these latter three were ultimately convicted, Keaton was not exonerated for another year and a half. Since regaining his freedom, he has struggled to rebuild a life. He told a St. Petersburg Times reporter: “Sometimes I feel like an outcast, like prison turned me into an island” (July 4, 1999).
Delbert Lee Tibbs: (Years wrongfully incarcerated: 2.9)
As he was walking along a Florida highway, Delbert Tibbs was stopped and questioned in conjunction with the rape of a woman and murder of her companion that had happened some 200 miles away (The Ledger, Jan. 7, 1976). He was released, but several Polaroid photographs of him were presented to the victim; she identified him as her attacker, despite the fact that he differed significantly from her initial description. Tibbs was sentenced to death. He remained in prison for nearly three years, and, after being released on bond pending a retrial, continued to fight his case with appeals for another five.
Like Keaton’s, Tibbs’ case attracted the attention of civil rights activists, as well as that of Pete Seeger, who wrote a song based on one of Tibbs’ poems to increase awareness of the poet’s predicament and to raise money for his court fees. Nevertheless, Tibbs, like many exonerees, had difficulty readjusting to life outside prison. Sharon Cohen of the Ocala Star-Banner observed:
Those desperate years when Tibbs loudly proclaimed his innocence all the way to the U. S. Supreme Court were the reason he became a celebrity long ago. Now, decades later, they may be the reason he drifts from job to job, surviving, but not thriving in the way he once dreamed… [H]e has none of the accouterments that come with financial stability: no car, no insurance policy, no nest egg– and for the moment, no permanent job (Mar. 24, 2002).