The Innocent Are Victims, Too

The other night I went to see The Exonerated , which has been playing Off Broadway since last fall and is also appearing in theaters around the country this year. Composed wholly from court records and interviews by playwrights Jessica Blank and Erik Jensen, this documentary drama recounts true tales of horror from the American criminal-justice system. The actors sit downstage and read their parts as the stories of six innocent citizens condemned to death row unfold. If this sounds like a worthy endeavor, it is; if it sounds dull or didactic, it isn’t.

The Exonerated is so compelling as theater, in fact, that it has drawn a rotating marquee of talent to the 45 Bleecker Street Theatre-including Richard Dreyfuss, Jill Clayburgh, Sara Gilbert, Gabriel Byrne, Aidan Quinn, and director Bob Balaban. At the performance I saw, Mariska Hargitay, star of Law and Order: Special Victims Unit , gave brilliant voice to Sunny Jacobs, a woman who spent almost 17 years in a Florida penitentiary-including five years on death row-for a double murder she didn’t commit.

The name of Sunny Jacobs sounded familiar to me, but I didn’t remember why until she mentioned her common-law husband, Jesse Tafero, who was sent to prison with her for the same heinous crime in 1976. They were convicted on the word of Walter Rhodes, a felon and friend of Mr. Tafero who avoided the death penalty by testifying against them. He swore that Mr. Tafero and Ms. Jacobs had each somehow fired rounds from the same pistol that killed Florida Highway Patrol trooper Phillip Black and his friend, a Canadian constable named Donald Irwin.

On the day of the killings, the couple and Jacobs’ two children were being driven north on Interstate 95 by Mr. Rhodes in his car. The confrontation with the police officers occurred at a rest stop near Pompano Beach. Exactly what happened still remains murky, but shots were fired after Trooper Black asked the two men to step out of the car.

Ms. Jacobs and Mr. Tafero were both condemned to death. Mr. Rhodes received a life sentence. Sometime after the trials, however, he recanted his testimony and confessed that he had shot both officers. Then he recanted his recantation.

In 1992, Ms. Jacobs’ attorneys won a new trial on appeal for several reasons, notably including the prosecution’s concealment of a “damning” polygraph examiner’s report that undermined Mr. Rhodes’ testimony. Had that evidence been presented to the jury, Ms. Jacobs probably wouldn’t have been convicted. She was freed, and the prosecution never brought her to trial again.

Although her legal victory also cast doubt on the conviction of Mr. Tafero, the decision on appeal arrived two years too late for him. In one of the most grotesque incidents in the dismal history of capital punishment, he literally caught fire in the electric chair.

For me, Jesse Tafero’s name brought a shock of recognition because in the fall of 1990, as an editor at Details magazine, I had published an autopsy photo of his scorched head, along with an eyewitness account of his execution by Miami Herald statehouse reporter Ellen McGarrahan. Years later, she again wrote about that auto-da-fé in Slate :

“Flames, my notes say, about Tafero’s execution. Flames and smoke …. The flames are nearly a foot high, they arc out from underneath the black leather hood; there is smoke, the huge buzzing sound of the electricity …. The executioner turns the power on and off, three times in all, and in between the jolts Tafero is moving, he’s nodding, his chest rises and falls. He looks like he’s still alive …. It takes seven minutes before the prison doctor pronounces him dead …. There’s a sore on his right pinky finger, a raw spot, flesh rubbed off to blood against the oak, from where he was clawing the chair.”

The clinical photo of his head, which nobody else chose to print, caused a brief sensation at Condé Nast. Advertisers didn’t like seeing that kind of disturbing image on the same glossy pages as their cars and clothes. I was advised to avoid such material in the future. But the sickening question that struck me while listening to Jesse Tafero’s story in The Exonerated -and had never occurred to me in 1990-is whether the man put to death so hideously was actually innocent.

A different kind of headshot can be viewed in The Innocents , a new book published by Umbrage Editions (www.umbragebooks.com) to mark the 10th anniversary of the Innocence Project. The subjects of Taryn Simon’s stunning portraits-also on exhibit at the Museum of Modern Art’s P.S. 1-are former prisoners released thanks to the Innocence Project’s lawyers, academics and students. Their work, directed by attorneys Barry Scheck and Peter Neufeld, has thankfully awakened the public to the lethal possibilities of error and chicanery in capital cases.

Unfortunately, we began to pay attention much too late for Jesse Tafero-and far too many others.