What happens when the judicial reconciliation of a homicide gets tangled up within its own intention of letting justice prevail? Through the eye of a filmmaker, Tom Rosenberg engages with questions around evidence, forms of reasoning and the inherent paradoxes of the United States legal system. In a two-part essay, he analyzes the relation between objectivity (evidence) and affect, empathy, and responsibility from two points of view, the judicial system and the world of film, with very different outcomes. What notion of justice can be maintained when every new testimony feels like a re-enactment of a speculative reality in which the indefinite postponement of closure quarantines an actual threat?
Part I Rule 403
In 1986 US Army Sergeant Timothy Hennis was tried for the murder and rape of Kathryn Eastburn and the murder of two of her children. Without strong physical evidence linking him to the crime, prosecutors relied heavily on the testimony of an eyewitness who’d seen Hennis in a knit cap and black Members Only jacket outside the Eastburn home in the early morning after the murder. Other witnesses came forward saying they’d seen him using a bank card stolen from the crime scene, lurking around the neighborhood in his white Chevette, and bringing a single item in for dry cleaning shortly after the murder: a black Members Only jacket.
Among the many peculiarities of his trial was a screen, measuring almost two square meters, installed on the courtroom walls opposite the jury, directly above the defendant’s head. During the proceedings the prosecution projected 35 images – 9 crime scene photographs and 26 autopsy photographs – primarily to accompany the testimony of the state’s forensic witnesses, illustrating the exceptional brutality of the murders. The same images in 8-by-10 glossy format, mostly in color, were distributed to the jury one at a time – an hour-long process unaccompanied by other testimony. The judge instructed the jury to consider the photographs only »for the purpose of illustrating and explaining the testimony of the various witnesses. . . . [and not to consider them] . . . for any other purpose.«  Hennis was convicted and sentenced to death.
Hennis’ attorneys appealed the conviction, citing Rule 403 of the Rules of Evidence which gives a judge the discretion to exclude evidence if its probative value is outweighed by the danger of creating »unfair prejudice.« A picture of a mangled corpse tells us about the way a person was killed, but it also shocks us, arouses anger, a desire to punish, or sympathy for the victim. The legal literature on Rule 403 outlines numerous factors a judge can consider when weighing probative value and prejudice. She can even consider what type of people make up the jury and how likely they are to be shocked (the potential for subjective bias is remarkable here). Despite several studies indicating that exposure to gruesome imagery makes people more punitive and diminishes the capacity for impartial reasoning, the tendency in criminal courts is almost always toward allowing graphic photographs in cases of violent crime. 
In the kind of reversals which are extremely rare in capital cases, the North Carolina Supreme Court ruled that the prosecution’s use of victims’ photographs in Hennis’ trial went beyond the trial court’s discretion, identifying at least two underlying problems: unnecessary repetition and sensational presentation. According to the ruling multiple images of the same child’s neck wound can reveal nothing new about the crime (while testifying about the slides in question the forensic witness even remarks at one point: »This looks like the one we saw before«). The repetition can only provoke an emotional reaction which was likely exacerbated by the format of the images, enlarged and projected above the defendants head. The court ordered a second trial for Hennis, and its ruling set stricter standards for the way graphic photographs are handled in North Carolina courts.
»The judge acts as a curator or film director who ensures that the competing narratives working themselves out in the courtroom can unfold, but under strict limitations to subdue the prejudicial effect which is always lurking beneath the surface.«
During the retrial Hennis’ lawyers produced a new witness, John Raupach, a former late night employee at a neighborhood convenience store. He testified to walking on Summerhill Road around the time when the prosecution’s key witness had seen Hennis outside the Eastburn home. Over six feet, with sandy blond hair and a mustache, Raupach was a dead ringer for Hennis. He even wore a cap and black Members Only jacket. In this second version of events Hennis was acquitted and his story – the story of an innocent man wrongly accused – was adapted into a four hour television special in the early 1990’s.
One of the implications of Rule 403 is that the two factors which a judge must weigh – probative value and prejudicial effect – are distinct but inseparable features of the photographic image. Images convey information but they are also always producing affect, narration, identification. In the context of criminal justice it’s not a question of whether these prejudices exist, but of measuring and controlling them. This observation, uncontroversial for photographers and filmmakers – and perhaps lawyers as well – nevertheless signals a tension or contradiction within a juridical framework that establishes justice through the instruments of narrative which inherently contain a problematic excess that can never be entirely eliminated, only monitored and controlled. The judge acts as a curator or film director who ensures that the competing narratives working themselves out in the courtroom can unfold, but under strict limitations to subdue the prejudicial effect which is always lurking beneath the surface.
The Hennis story circles back on itself several years later when he was tried and sentenced to death once more in a court martial (thereby circumventing the constitutional restriction on »double jeopardy«) after newly available genetic testing positively identified Hennis’ DNA in a semen sample taken from the original investigation’s rape kit. Unfortunately, at least for a sense of narrative closure, the chain of custody of this sample was broken, one lab which had tested the sample was indicted for manipulating evidence in an unrelated case, and due to procedural constraints of the military justice system, the defense was barred from testing other potentially exculpatory genetic material from the crime scene, including blood stains and skin found under the victim’s fingernails. Hennis remains on death row in the US Disciplinary Barracks in Fort Leavenworth and continues to appeal his case.
»In the end, Hennis is either a monster or the victim of a succession of harrowing procedural errors, but it seems impossible to distinguish which.«
In all the iterations of this story some kind of image, copy, or trace surfaces with new information, but always accompanied by an unsettling ambiguity. The documentary photograph undermines its own credibility when enlarged and repeated. The appearance of a doppelganger multiplies plausible narratives and calls into question the witness’s memory. Finally, the DNA sample, an encoding of the entire individual who uniquely produces it, seems to escape the vagaries of human memory or mechanical vision. But the narrative surrounding the production, transmission and »decoding« of this evidence has its own ruptures and inconsistencies. Like Schrodinger’s proverbial cat, it is as if Hennis is enmeshed in a strange experiment, where knowledge impinges on the truth it tries to penetrate – and to potentially lethal effect. In the end, Hennis is either a monster or the victim of a succession of harrowing procedural errors, but it seems impossible to distinguish which.
Part II Indefinite Postponement
Going back to the autopsy photographs for a moment: side by side the two photos of a child’s neck wound are almost identical – perhaps taken from a slightly different angle. They’re not substantively different, but the court is clear that the second one was problematic enough to invalidate an entire trial. It’s the repetition, the relation of the second one to the first, which is in question. But it’s also worth noting that the problem arises not only from their being too similar, but also being just different enough. Because if they were identical images, or a prolongment of the display of one image, the problem disappears. It’s only repeating an image, with a slight modification, like the a sequence of film frames, that creates this problem of emotional excess.
»Yet part of what makes this particular story compelling, at least in its most recent version, is the fact that the identification with the protagonist is suspended. There is a strange sort of empathy at work, the empathy one feels for a character who, because we are not sure how to feel about him, is isolated from the possibility of empathy.«
What draws me to this story as a filmmaker, as a subject for adaptation, is this doubling up of photographs, and the doublings that occur so frequently throughout this sequence of trials. Each trial is already a repetition of the scene of the crime and each retrial accumulates references and quotations from its previous versions. The same witnesses are called, or when a witness is missing a lawyer reads the record of their previous testimony. But with each repetition there are subtle changes in the details of language and memory. A witness can only testify to having once said what they remember, even if the memory itself has evaporated. Or a new witness is used in place of the old to testify to more or less the same set of facts. And then there are more drastic alterations – we learn about Hennis’ doppelganger, about the narcotics agent who was hanging around the Eastburn neighborhood in a white car, about the menacing phone calls received by the newspaper delivery person who saw a much smaller man leaving the Eastburn home, about the damning DNA evidence.
Any adaptation of the story would be another mirroring of the narrative, replaying the story for an audience who is, however, in a significantly different position than a jury. A jury is meant to be isolated from the repetitions, to see everything as if the previous trials have not happened (there are several moments in the later trials where witnesses are chastised for accidentally mentioning the previous trials). In a court the final version is the binding and »true« account and the previous versions are hidden away. Putting an audience in the same relation to this story as a jury would not only be unnatural for a filmmaker, but perhaps even dishonest in terms of documentary ethics, since this is as much a story about a man’s entanglement with the judicial system, it’s efforts to establish the truth, as it is about the resolution a specific crime.
After Hennis’ exoneration his story was adapted into the ABC special »Innocent Victims,« featuring such well worn character actors of the 1990s as Ricky Schroder (NYPD Blue) and Rue McClanahan (Golden Girls). The film follows the predictable arc of Hennis’ attorneys struggling to free an innocent man. As with any classical narrative we identify with the struggles of a protagonist, identify with their failures and victories. At the close of his second trial Hennis’ story and it’s dramatization is compelling, if unremarkable for it’s genre, not unlike hundreds of other »true crime« stories about the wrongfully accused and the eventual triumph of justice.
In the Classical Hollywood paradigm the audience is almost always supposed to identify with the protagonist. Yet part of what makes this particular story compelling, at least in its most recent version, is the fact that the identification with the protagonist is suspended. There is a strange sort of empathy at work, the empathy one feels for a character who, because we are not sure how to feel about him, is isolated from the possibility of empathy. This peculiar relation to the subject would have to be at the core of any adaptation of this story.
»Each iteration of the story builds on the last, and simultaneously changes the meaning of what preceded. Each version contains other versions of itself, proliferating like those natural phenomena which repeat variations on their own structures on different scales.«
The elements of this story suggest a Freudian unconscious which does not admit negation or time, where contradictory histories can multiply and communicate with one another. But the courtroom tries to suppress these tendencies. Variations on the same image cannot be shown without invalidating the trial. Across time, a jury is shielded from the details and outcome of the previous trials. A court resists this opening up of narrative, the slide into excessive affect, into multiple and conflicting identifications. But in the cinematic context we are drawn, out of narrative pleasure, out of the technical capacity of the medium, and even ethical commitment, into a multiplication of narratives, of identifications that overlap and do not resolve. Each iteration of the story builds on the last, and simultaneously changes the meaning of what preceded. Each version contains other versions of itself, proliferating like those natural phenomena which repeat variations on their own structures on different scales. This porous, non-euclidean time is both deeply threatening in a judicial context, and somehow implicit in the cinematic medium.
»For Hennis in particular, this state of affairs echoes the indefinite postponement proposed to K. in ›The Trial‹, a kind of backdoor acquittal – a stay of execution in his case – in exchange for a life of indefinite bureaucratic process.«
The US Military hasn’t executed anyone since 1961. Not only does a death sentence in a court martial immediately trigger a lengthy appeals process, but the execution itself cannot take place without a rarely obtained presidential order. The four men on death row at Fort Leavenworth will likely remain there for the rest of their lives, pursuing various avenues of appeal, or simply waiting for an execution order which will never come. For Hennis in particular, this state of affairs echoes the indefinite postponement proposed to K. in The Trial, a kind of backdoor acquittal – a stay of execution in his case – in exchange for a life of indefinite bureaucratic process. In what is in some respects a conflict over the nature of narrative – a conflict which has stakes for a man’s life – this postponement seems like the only possible conclusion, a non-closure, which quarantines a threat that can for now only be examined through the lens of a camera.