Democratic Acts From Theatre Topics

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Democratic Acts: Theatre of Public Trials

Winner, Lucy.

Theatre Topics, Volume 15, Number 2, September 2005, pp. 149-169 (Article)

Published by The Johns Hopkins University Press

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Democratic Acts: Theatre of Public Trials

Lucy Winner

This essay began as a story about a class on the theatre of the law. But thestory I tell here is about more than that class. It is also about pedagogy outsidethe classroom, how my subject matter found its way into my lived experience,and how my experience transformed my worldview. What began as an aca-demic projectan investigation of the intersection of theatre, ritual, and trialbecame for me increasingly personal and political. At a time of a great crisis in

American democracy, this experience, rooted in a theatre class, urged me toredefine my notion of civic responsibility and led me to recognize multiple

ways democracy is performed.

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In the fall of 2000, I asked my friend Jessie Allen if she would like to teacha class with me.1When we were both actors, Jessies penchant for performedintellectual discourse had balanced my desire for a theatre of enchantment.Now Jessie is a lawyer. Together we decided to look at law, particularly publictrials, as theatre, merging our professional and academic expertise. We woulduse the tools of dramatic, performance, and legal theory to analyze how the lawfunctions in our society.

This was not a traditional class, but a small, interdisciplinary group studyat Empire State College, the State University of New Yorks alternative collegefor adult students. The group was open to any student who could handle ad-

vanced cr it ical material and work independently. Some were midcareer per-forming artists exploring the boundaries of their art forms. Others were in thesocial sciences or prelaw. None had a background in performance theory.

As the class was gett ing underway, I was called to jury duty. A conflictemerged; having come of age in the 60s with an ingrained mistrust of the legalsystem, I resisted the notion of enacting what we were teaching about. I feltcomplicit working within what I believed to be an often unjust system of justice.But, ultimately, this confluence of theory, pedagogy, and personal experiencemy active engagement with the workings and misworkings of the justice sys-temled me to recognize the theatre, the streets, and the courtroom as poten-tial stages for enacting democracy, even as each is also sometimes a platformfor grotesque enactments of autocracy. These stages pointed me to the centraldiscovery of this project: the importance of enactment to the theory and idealsof democratic structure, andeven when our experience in daily life falls shortof democracythe value of continuing to perform the rituals of democracy, act

out its dramas on the stage, in the courtroom, and in the streets, in order tomaintain and expand what democracy we have.


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In light of this experience I consider here the following questions:

What do the implied intersections among law, ri tual , and theatre tell usabout the civic functions of performance? What happens when we look at pub-lic, performed trialsa part of our civic structureas theatre? What are theperformative aspects of these trials that allow spectators various ways into them,and give these performances such weight? And how might an understanding ofthese help us to perform more actively and effect ively as citizens? I will use thetools of dramatic analysis and elements of performance theory to analyze thetrial as performance and the courtroom as a stage, and in this way illuminate thepotential democratic impulse in both theatre and jurisprudence.

I offer three perspectives onto this stage, two stemming directly from thework of the class and the third from my own experience as part ic ipant/ob-server:

Class Action I, in the classroom, examines some of the readings the classundertook, in order to provide certain theoretical arguments about the corre-spondences between theatre, ritual, and law, and to make a case for under-standing the performance of public trials as ritual and theatre. Class Action IImoves, as the students did, to observation and fieldwork, and investigates twocontemporary case studies: the Amadou Diallo case and the Fairness Hearing ofthe Holocaust Victim Assets Class Action Suit. In Class Action III, I reflect on myconcurrent lived experience as a potential juror, evidencing my desire for themeans of performing citizenship and connecting my personal longing for par-ticipation to the central theme of performing democracy. All of these are inter-

related in that the insights gained in each experience are grounded, fundamen-tally, in contexts of learning: the first, a somewhat traditional, text-based approachto a nontraditional study; the second, the experiential learning of teacher andstudent; the third, my own personal experience, engaged in what performancestudies scholar Dwight Conquergood calls the nourishing ground of participa-tory experience (Performance Studies 153).2

Finally, in the epilogue, I revisit my initial question about active civic en-gagement, contextualized by an expanded understanding of performing democ-racy and informed by this pedagogical journey.

Class Action I: The Search for Evidence

In order to look at the range of enactments as part of democratic process,we organized the class to interrelate such widely divergent areas as dramaticand performance theory, jurisprudence, anthropology, legal theory, plays abouttrials, and popular representations such as Court TV and L. A. La w.

We began by examining the correspondences between ri tual , theatre, andlaw, first looking at how a trial functions as a public ritual. Like rituals, trials arepotentially transformative. Obviously, the verdict can impose life-altering changeson the direct participants. Both ritual (magical) and legal practices make use of

what J. L. Aust in called the performative force of language so that , as Jess ienotes in her work on Legal Magic, when judges and sorcerers speak in theproper ritual contexts, saying it does make it so(9). Classical anthropologicaldefinitions of ritual are useful: Arnold van Genneps theory of the three stages


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of rites of passageseparation, transition, and reincorporationthat mark lifecrises; and Victor Turners reconfiguration of these in his theory of social dramainto four stagesbreach, crisis, redressive action, and reintegration. In particu-lar, Turners concept of the liminal applies : The performance of public, criminal

proceedings responds to a breach of social norms (crime) by taking redressiveaction in a setting and form that is separated from the world of daily life. Defen-dants are in a kind of liminal state during a trial, suspended between guilty andnot-guilty, free and incarcerated. Sometimes other participantsa sequesteredjury, for exampleare also in a liminal state.

Additionally , we considered how tr ia ls, like ri tuals, function as a way forthe public to confront chaotic, painful, and contradictory social issues. As an-thropologist and performance studies scholar Dwight Conquergood notes, ritu-als restor[e], replenish[] and remak[e] belief, transforming vague ideas, mixedfeelings, and shaky commitments into dramatic clarity and alignment . . . They

make visible abstract principles and inchoate conceptssuch as Justice (Le-thal Theatre 343). Performance studies scholar Gunter Berghaus writes thatritual also functions as an ordering device and survival technique in times ofcrisis (65).

Scholars of anthropology and performance theory have long pointed to adynamic two-way relationship between ritual and theatre, examining how anunderstanding of one informs the other. Having looked at trials as ritual, wecompleted the triangular relationship to trials as theatre. By applying principlesof dramatic theory and analysis to trials, we can illuminate the elements oftheatre in trials: Stories are explored dramatical ly on a particular set, enacted by

performers who play specific roles, wear costumes, and have specific block-ing. According to attorney Richard Harbinger, an adversary trial is a dramaticthing put to legal use (122). He suggests that if one looks at a criminal trial asa play, one can see the play (the courtroom drama or the drama of the trial),and then a play within the play (the drama of the crime). In the courtroomdrama, for example, the two protagonists (prosecuting attorney and defenseattorney) battle to win control over the crime story. They also double for theprotagonists of the crime storythe defense attorney representing the defen-dant, and the prosecutor representing the victim or state.

The multiple layers of spectatorial posit ions in a trial range from witnessesto the alleged crime, to the judge, the jury, and the audience in the courtroom,to the wider public, who view, hear, or read about the spectacle of the trial. Isee these as expanding framesfrom the inner frame around the story, crime,or injury, to the frame of the trial, to a wider frame, which is the play without,in which the wider public uses the trial as a way to consider a social issue, formopinions, and organize its experience.

The play withoutfulfills this wide frame function most obviously in popu-lar trials such as the 1925 Scopes (Monkey) trial. John Scopes, a high schoolbiology teacher in Tennessee, was prosecuted for teaching Darwins theory of

evolution. This trial and the tremendous media attention it received served tomediate a deep conflict between science and religion in the US, and became afocus for popular debate, humor, and entertainment. The trial was broadcastlive on Chicago radio and covered by over one hundred news reporters (Bernaboand Condit 56). In 1955, Jerome Lawrence and Robert E. Lees play, In heri t th eWind, reinterpreted and gave new form to the play without. Ironically, it was


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not until three years after the Broadway production that the En cy cl op ed iaBr it ta nica added an entry on the trial (Bernabo and Condit 82). The drama ofthe play seemed to magnify the drama of the trial, and to shape subsequentpopular discourse.

Legal scholars note that trials are not the most expedient route to justice. 3

Why, then, are tr ia ls performed in a courtroom, rather than efficiently handledon the basis of documents alone, or discussions in private chambers? Legaltheorist Bernard Hibbitz suggests that performed trials have a number of func-tions. They provide structured opportunities for expressions of dissent (5),and democratize the law by calling the community to witness, and by making itcollectively responsible for the laws effectuation (3). Acting out the law intrials helps us to think it through. Finally, Hibbitz suggests that participants,particularly jurors, get a kind of cathartic satisfaction . . . by serving as instru-ments of deliberation and decision. He further posits that performed law is

potentially enjoyable and restorative, accentuating the ludic [playful] qualityof the law (5).4Of course, for our students, this begins to touch on the mediafascination with performed trials, real and ripped from the headlines.5

We know that for the ancient Athenian citizen, going to the theatre wasboth ludic and restorative, as well as an act of citizenship that played a funda-mental role in a more or less democratic society. It was the civic responsibilityof citizens (male property holders) to attend the theatre at the citys annualDionysia festival . Theatre was a way for the community to come to know itself,to understand through image what was otherwise perhaps obscure or alien.Theatre has long been understood to offer an opportunity for spectators to grapple

with major issues of their lives. Its purpose, says Shakespeares Hamlet, is tohold . . . the mirror up to nature (Ham. 3.2). Through empathy, identification,and reason, audiences struggle with core ethical, psychological, social, and spiri-tual issues.

Another way theatrical performance communicates and engages differentlyfrom reasoned assessment of facts is suggested by Conquergoods discussion ofan observation by Frederick Douglass about African American slave songs. Dou-glas writes: In the most boisterous outbursts of rapturous sentiment, there wasever a tinge of deep melancholy. . . . I have sometimes thought the mere hear-ing of those songs would do more to impress truly spiritual-minded men and

women with the soul-crushing and death-dealing character of slavery, than thereading of whole volumes (979). In this instance, performance becomes anopportunity for protest and forbidden expression, made more compelling by itstug on spectators emotions. Being an audience member (listening) is an oppor-tunity for understanding deeply. Conquergood suggests that Douglasss recom-mendation of responding to a performance over reading of whole volumesallows relocation, copresence, humility, vulnerability, listening to and beingtouched by the protest of enslaved peoples (Performance Studies 149; em-phasis in original). This possibility proposes a more radical role for empathicexperience and the possibility that, as theatre scholar and critic Jill Dolan pro-

poses, people can be persuaded toward radical change through empathy andunexpected identification with those once considered other or alien to them . . .as well as through Brechtian alienation (6).

We can look at Douglasss insightthat we see certain things throughperformance in a different way from how we can through written textas ap-


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plicable to the notion of acting out our citizenship. As the slave songs thatDouglass describes provided an opportunity for empathy and unexpected iden-tification, public, performed, even televised trials may fulfill such a function inour society. They may be opportunities for participants, spectators, and the

public to rehearse, consider, and develop surprising empathiesand to performtheir parts as citizens. They may even, as Hibbitz suggests, bring ludic pleasure.

Legal theorist Paul Berman strikingly illuminates the way trials, like the-atre, air differing points of view and create empathy for the other, and illus-trates examples of the community value of performed trials. Consider the fol-lowing: A swarm of rats is accused of eating the communitys crops of barley.

When the rats do not appear at a formal tr ia l in response to a summons, theirlawyer successfully argues that they need time to gather and make the long tripto the courthouseand that, although eager to appear, they have not been af-forded adequate protection from the feline dangers of their journey. One might

expect to find such fables in Aesop, but, in fact, these proceedings are neitherfiction nor anomalies, but an example of countless documented accounts ofcarefully conducted trials of animals in Europe, mostly in the Middle Ages, butsome as late as the nineteenth century. Perhaps even more surprisingly, inani-mate objects (statues or pillars) that fell upon and killed humans were put ontrial in ancient Greece. A special court of the Acropolis, called the Prytaneion,

was dedicated to trying three kinds of cases: where the murderer was unknownor unfindable (for example, Oedipus); where death was caused by an inanimateobject (excluding those understood to be acts of God, such as lightning bolts);and, finally, where a human was killed by an animal (296).

Bermans accounts make strange (in the Brechtian sense) the proceed-ings of a trial. The alienating effect of animals as defendants clearly illuminates,for the contemporary reader, the ritual process and community function of aperformed trial. These trials did not function to adjudicate disputes, nor didthey potentially dissuade rats or pillars from future crimes. However, these court-rooms provided a place for conflicting beliefs to be acted out.

In a particularly strange and vivid example of such debates, Berman pointsto a trial of weevils, accused of infesting vineyards in Saint Julian, France in1545. The prosecution and defense argued such questions as: Was the infesta-tion a sign from God, which should be answered by prayer and religious ritual?Had the animals been granted the right to the vine leaves by God, as docu-mented in Genesis, chapter 1, verse 30to every thing that creepeth upon theearth . . . I have given every green herb for meat? What was the relative posi-tion of animals and humans in the universe? Did humans or only God have theright to judge and punish animals? Were animals subject to human or divinelaw?

Fascinatingly, as the weevil trial continued over a long period of time withoutresolution, the townspeople apparently took the law into their own hands. Theynegotiated a contract with the insects, granting them use of a tract of land of

their own, with some provisions in case the townspeople needed to retreat tothe land, for example, in times of war.

Using Turners four-part sequence of social drama as a model, Bermanlikens performed trials to redressive action and integration or recognition ofirreparable schism (stages three and four). His work shows that even trials not


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concerned with pragmatic results incorporate rituals whose performative func-tions overlap with those of theatre, creating community stories to help a com-munity heal from a breach or crisis, and bringing a certain order to a frighteningand disordered world. In addition, it suggests that trials provide a stage upon

which conflict ing points of view can be articulated and argued, finally creatinga consensus narrative that attempts to unify the philosophical, spiritual, politi-cal, or moral values of the community. Even in extreme circumstances, whenthe outcome of a trial cannot actually have a real effect, its ceremony can pro-

vide a way for the public to part ic ipate in and to think about large ethical issuesand even to practice empathyin this case, with other species.

As a play is often a mirror of its time, so is a tr ia l. A publ ic tr ia l canfunction dramatical ly to reinforce prevailing notions and prejudices. In a differ-

ent historical period, the trial transcript brings those prevailing notions andprejudices to light for later audiences to see.

An examination of the tria l of Joan of Arc provides such a mirror. In asociety where institutions are firmly entrenched, as was church-dominated Eu-rope during the Middle Ages, the trial can sometimes be a conserving force,providing a platform for the wider audience to reaffirm social norms. In a lessstable circumstance, a popular trial may be more contentious (Arnold 142).

In addition, an examination of Joans trial emphasizes a different kind ofempathywith the political outlaw. Ideally, according to legal theorist Thurmond

Arnold, a tr ia l overshadows al l other ceremonies as a dramatizat ion of thevalues of spir itual government . . . representing the state as enforcer of law and,at the same time, the dignity of the individual, even when he is an avowedopponent of the State, a dissenter, a radical or even a criminal (130). Arnoldused the transcript of the trial of Joan of Arc to reveal the way trials can help asociety to define itself for history, and leave a record . . . [of] blind phobias

which from time to time make themselves a part of law (141). According toArnold, al though the judges in Joans tr ia l were clearly motivated by poli ticalpressure to find her guilty, the trial record reveals a mirror in which we seereflected our own ideas of what a fair trial should be (135). In fact, Arnoldasserts, the only missing . . . modern [1935] requirement is that Joan is not

represented by counsel. She does, however, represent herself with astutenessand legal skill (137).6

When Joans tr ia l is read from a histor ical distance, it can provide thekind of alienation that Brecht talks about as a way to see blind phobias. Thetrial transcript, though clearly not a totally reliable document, has functionedrepeatedly as a script for later readers to dramatize the trial and help developthe play withoutthe larger social and political drama surrounding the innerstory of Joans trial. The readers have found the trial strange, and this has, inturn, illuminated their ow nhistorical moment. Because heresy trials no longerseemed natural to Western society, it was through subsequent, repeated rereadingsover time that Joan was rehabilitated as a saint and later became an ideal tragichero.7

Even in its own historical moment, Arnold believes, the trial of Joan of Arcafforded the possibility of the kind of democratic empathy that Dolan writes


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aboutidentification with the alien or other. In fact, he seems to suggest thatwhen prosecutors are supported by the weight of law and the approbation ofsociety, even they can sometimes afford to empathize with the outlaw. Thisempathy can itself provide a small measure of fairness, as when, according to

Arnold, the judges declined to torture Joan even though torture was rout inelyused in such cases (138).

Trials conducted in the context of social instability and flux can sometimesilluminate injustice in their own time. In 1935, as Arnold was writing about Joanof Arc, and the Great Depression deepened in the Uni ted States, the Scottsborotrial was being conducted in Alabama. In this case, nine black teenage boys

were accused of gang-raping two white girls while hoboeing on a freight train.Contrasting the two cases, Arnold suggests that only a feeling of security . . .can create an atmosphere where the underdog is given a chance. According to

Arnold, the Southern courts were not confident of the reasonableness of the

assumptions that underlay this trial. This caused them to engage in cover-upsand other unfair proceedings. He noted:

If the Alabama courts in the Scottsboro case dared to say that as a matter of

principle Negroes were not entitled to sit on juries, and that Negroes who

had intercourse with white women were to be treated as white men who

committed rape, we would find a calm atmosphere which is now completely

lacking. (142)

In such a case, the trial would have played out according to racist but legalprinciples that some of the public believed in. However, not only was the trial

unfair by virtue of the existing racist law, it did not even follow those laws.Arnold believed that it was those violat ions of the then-current law that broughtan uproar of nationwide attention to this case. In other words, this analysispoints again to the importance of enactment to the functioning of the ideals ofdemocratic processes. The dramatization of the case, the ritual of it, allowed thepublic to analyze the prejudices and phobias which caused the unfair pro-ceedings. This analysis, in turn, spurred an interracial alliance and eventuallyled to a Supreme Court decision that allowed blacks to serve on juries.8In sucha case, the trial can unintentionally serve as a kind of political theatre in its owntime, to engage and perhaps enrage the public, to bring unconscionable truths

and practices to light.

Class Action II: Contemporary Mirrors

At the time of our class, another publ ic tr ia l was taking place. Four whiteNew York City police officers were accused of shooting an unarmed West Afri-can immigrant, Amadou Diallo, forty-one times outside his own home when hereached for what turned out to be his wallet. The trial was moved out of theBronx, where the incident took place, to upstate New York, putatively to assurea fairer trial away from the local publicity, and from a local audience who might

well identi fy with the vict im, the person they saw as the main character. How-ever, the judge ruled that the trial could be televised (for the first time since thefamous trial of O. J. Simpson) so that the citizens of New York City could watchit. Ironically, this created an even larger public audience than could have at-tended in the Bronx.


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Jessie and I recorded Court TV airings of the tr ia l and showed taped seg-ments at each class meeting. Students applied the tools of dramatic analysis andperformance theory to the trial in the courtroom (the play within), and to theconcurrent street protests (the play without). We also followed the public de-

bates which arose in the media about police brutality and racial profiling, look-ing at how the story was positioned and repositioned, how pieces were re-enacted with differing protagonists and from different points of view. We watchedas the defendants chose to testify and showed seemingly real distress and re-morse. Although the police were found not guilty, the police department movedto disband the elite unit involved in the killing. Although protests continued,there were no riots. It seemed to us that there was room for competing narra-tivesthe ugly crisis of police brutality and racial profiling, and the stories ofaggressive police crackdowns against crime in the city, as well as the narrativesthat suggested the complexities of policing in a racially divided environment.Discussions among our racially and economically diverse students mirrored the

public debates; they were eager for the opportunity for debate and dissent aroundissues critical to the lives of city dwellers.

We then had an opportuni ty to go one step further, outside the walls of theclassroom and inside the walls of the courtroom. Jessie was clerking for JudgeKorman, who was hearing the case of the Holocaust survivors against the Swissbanks. This was a fairness hearing on the results of a class action suit broughtagainst the Swiss banks by victims of the Nazis. This move had two purposes: toallow students to analyze a live trial as ritual and theatre, and to give them anopportunity to experience themselves as a part of that performance.

A handful of students met me very early in the morning at the Dist rictCourthouse in Brooklyn. Despite all of my research, I had actually never beento a live trial. My father fled Prague in 1939, so I felt a particular connection tothis case. As the students and I sipped our coffee in line, we were joined bymembers of the class that was filing suit, who all reminded me of my centralEuropean Jewish relatives. What struck me was the combination of a kind offormality and ritual surrounding the courtroom and an Old-World feel to thearriving cast/audience. I listened to small conversations around methe fa-miliar cadence and syntax reversalsVouldyou maybe a coffee take? There

was a sense of being in a theatre lobby before a show, and, at the same time,

the kind of anticipation and concentration that exists backstage before openingnight. I learned only later that my father (and thus, me, as his daughter) was anofficial member of the class, complicating my position as teacher/observer. I

was off ic ially one of the protagonists and a part of the intended audience of thestory within,as well as a member of the more critical/analytical audience to theplay without that I had created with my class.

In a memorandum, Judge Korman described the nature of the lawsuit: Theplaintiffs alleged that

. . . in knowingly retaining and concea ling the assets of Holocaust victims,

accepting and laundering illegally obtained Nazi loot and transacting in theprofits of slave labor, Swiss institutions and entities, including the named

defendants, collaborated with and aided the Nazi regime in furtherance of

war cr imes, cr imes against humani ty, cr imes against peace, slave labor and

genocide. . . . Plaintiffs sought an accounting, disgorgement, compensatory

and punitive damages, and declaratory and other appropriate relief. (2)


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The hearing was to consider the fairness of the proposed $1.25 billion settle-ment.

This experience allowed my students to grapple, in a more nuanced fash-ion, with the idea of trials as dramatic acts. Beyond putting to work what theyhad learned about ritual and dramatic theory and jurisprudence, they couldlearn from their own empathic experience as an engaged audience at a liveperformance. This was an opportunity to move beyond traditional participantobservation to what Conquergood called an ethnography of the ears and heart. . . coperformative witnessing, and to consider the purposes of calling a com-munity together to perform such a moment (Performance Studies 149).

My students and I, having joined the community, sat in the audience facingthe judge. The witnesses faced in the same direction, although they were clearlyaware of our presence behind and sometimes cheated so we could see their

faces. It was upon the judges face that I focused. I was struck by the quality ofactive listening that made his face, the lift of his chin, the occasional sigh, akind of mirror of my own attention. I was conscious that he represented author-ity. I was moved by this.

Because this was a fairness hearing, the attorneys talked about what fair-ness might entail in this situation. The council for the Swiss banks suggestedthat this settlement should bring complete closure with respect to the concernsand allegations relating to Switzerlands role in World War II.9

A woman representing the Commission of Looted Art in Europe argued

that art and other cultural objects should be excluded from the settlement. Shetold the story of a woman looking for a piece of art that used to hang in herchildhood home. Her father had later given it to her sister as a wedding present.

When her sister died in the Holocaust, the painting was lost . This painting hadjust been discovered in a public collection in Switzerland. If the settlement wereto provide complete closure and art were not excluded, the piece could neverbe returned to the family.

You want complete closure? asked an aged survivor. Bring me backmy father . . . bring me back my whole family . . . Its not fai r, so we settle . . .It can never be complete closure. Ironically, this line provided a measure of

closure (catharsis, perhaps) for the audience of survivors. What do we settlefor? How do we go on living in and with an unjust situation?

During the long day we saw multiple dramas played out, raising layersupon layers of complicated and gripping issues for my students: the nature ofreconciliation, forgiveness and closure; the meaning of fairness; how memoryand meaning reside in the tangible objects of our lives. We were witness to anoccasion that allowed people an opportunity to act out, in a public, symbolic

way, a response to what had been intolerable. For those in the class of the suit,in the play within, this could not fundamentally change history. It did offer anopportunity to retell ; to bear witness to their own experience; to act in relation

to a situation in which they had once been rendered powerless; to publiclyspeak, perhaps contentiously, of a situation in which they had once been si-lenced. Further, by being a performance with a coherent structure, removedfrom everyday life, this experience provided a structure with enough distancefrom the events to allow reflection and focus. It raised questions that werecathartic, and called upon a sense of community to address a traumatic history.


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In the play without, this hearing, like the Truth and Reconciliation Commissionin South Africa, signaled to the wider world and attempted to make fairness andreparations part of the public discourse.10

Class Action III: Jury Duty

Midway through our class I was called for jury duty. Having arranged nu-merous deferments for years (some real, some cynical), I had no more groundson which to refuse. Accepting that I must attend, I told Jessie about the strate-gies I planned to use to make sure I was not actually picked for a jury. Afterall, I said, I dont believe in the justice of our justice system. I dont, in par-ticular, believe in the prison system. How can I be a part of this? And anyhow,it wouldnt be fair for me to participate because I am so biased. Jessie wasfurious. Invoking my responsibilities as a citizen, she shouted at me, You live

here! You are a part of this system. Who else is going to si t on a jury? Take yourconflicts and dig into them in a jury box. You are exactlythe kind of person

who shouldbe there. Do you think others arent biased? You are less likely tobe swayed by them. Anyhow, my god, we are teaching this class now. Its aperfect time for you to do this.

I allowed myself to be convinced, and thus began my personal strugglewith my lived performance as a potential juror. This was a chance to act asparticipant/observer in the areas we had been theorizing about. However, mydesire to enter the courts as a researcher was somewhat thwarted by my visceralresponse to this experience. I learned in high school that our society is predi-

cated on the notion that to be a citizen is to act on what you believe. For yearsI understood theatre to be a means of engaging as a citizen, and of contestingsocial ills. I have often felt a burning desire for those means. To my surprise, Ifound myself intrigued, even obsessed, with my upcoming juror role, reframedin theatrical context.

On the day I was called, I woke up in the morning and tried to figure outhow to dress. The role I would play was citizenaverage. I wanted to lookrespectful, smart, and open-minded. Did I want to appear liberal? Radical? Con-servative? Flamboyant? I struggled with the outside layer, the fabric of my role,

my costume. I settled on a cotton jumper, linen jacket, and sandals. I had cho-sen what for me was a neutral look.

As I entered the courthouse, space and time begin to al ter. I went up longstone stairs, through metal detectors, past people in official uniforms. I fol-lowed signs, as in a maze, to the jury waiting room. I was here to learn my part.There was a videotape for me, the juror, telling me about my role. There wasa jurors handbook.

Hours passed. Each time a list of names was calledWould James,Cartwright, Schmidt, Kelly, Marino . . . proceed to room B?I felt a small

letdown. I wanted in. My name was finally called, and I joined a clump ofalternately excited, bored, chatty citizens outside Courtroom D, waiting to besummoned by the court officer. Once inside, all aspects of the room signaled tome a theatre set. Thick, dark, sturdy, and elegant wooden rails clearly delin-eated the spaces and evoked dignity. These helped me determine who wouldplay what roles and the specifics of our parts and places. The judge, on high.


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The so far unselected potential jurors, behind the railing. The jury box, nowempty, stage right, with two rows of neatly numbered seats behind anotherthick rail, facing stage center. And then, down on the floor, the desks and seatsfor the main characters facing the judges bench at a slight angle.

The prologue began for us, the regular citizens. We heard that the caseinvolved a possible gang-related shooting. We heard that we might go late intothe evenings, that we might go beyond the coming weekend. The judge askedthose of us who would be unable to fulfill these obligations to excuse our-selves. I thought of our Thursday night class and decided to take a chance. Afterall, if I was locked into the theatre of the law, Jessie could lead the group.

I was selected for the voir direliterally, to speak the truthan exami-nation designed to establ ish the competency of a juror or witness.11I must admitthat I felt a little thrill of delight to be cast in this featured role. I was Juror #1,

and I moved proudly into my seat to audition for the part. I felt totally commit-ted to the notion of speaking the truth. It occurred to me that this was, inacting terms, my character objective.

The defense attorney was a youngish woman with a long ponytail, veryconservative suit, and high heels. Legal Aid, I presumed.

The defendant was brought in. Immediately, I switched out of my detachedanalytical mode to empathy. I saw a young African American mana boy, re-ally. Maybe fifteen, maybe younger. I tried not to stare so hard. He was type-cast, I thought: the young contrite ex-gang member.

I immediately felt as though I should be his defender. He was about to beput away in a brutal prison system, and his life was over. Whatever happenednext would be part of the tremendously powerful script of the correctional sys-tem.

I heard the story: The defendant was accused of shooting another youngman on a street corner in the Flatbush section of Brooklyn, not far from wheremy daughters best friend lived, where I walked, where she played. I looked upat the defendant, who was looking down.

There was only one eyewitness. I jumped to alert. I remembered our classsdiscussion on Jerome Franks study of eyewitness identification: the inaccuracyof cross-racial identification, the influence of stress, and the tendency to focuson a weapon rather than a face. 12I was suddenly more and more certain that I

was here to assure that this kid would get of f.

Then I remembered the off-stage character, the kid who had been shot. Iflipped back and forth between the defendant and the victim for a minute. I sawmyself as a character in a silent movie, jerkily dancing back and forth from myposition as defender of the defendant to defender of the one who was shot . Myhead reeled as I did this. What could I have been thinking? How would I ever

know? How would I live with myself? I felt I must dedicate myself to findingTHE TRUTH. But I knew, or I thought I knew, that that was not necessarily whatthese lawyers were here to do. They were here to perform and present andcompete, to convince me. Would I be able to see past the most convincingperformance? I must get off this jury, I thought. But if not me, who? I called onthe sense of what being a citizen has meant to me, and how much more power-


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ful I felt when I could protest, march, do guerilla theatre in middle-Americanmalls. I would plant myself in peoples faces, in tableaux of news photos, fro-zen in the role of the student crouching over her dead friend at Kent State.That, I understood as enacting citizenship, as worthwhile theatre, as fighting

for justice. Would this be a stage upon which to contest? In court, my role wasdefined by sets of rules that made a resistant performance difficult, if not im-possible. I stayed, partly in my role as researcher/participant/observer, but awarethat I felt a tug toward the center of the performance.

We were being questioned. First by the judge, then in turn by the youngprosecutors and the defense attorney. First, basic questions of identity. Then,raise your hands if: There is a reason why you could not be impartial on thiscase. You or a friend or member of your family have ever been accused orconvicted of a street crime involving a weapon. You or a friend or member of

your family have ever been the vict im of a st reet cr ime. You have heard of the

Crips or the Bloods.

Several years ago my then seven-year-old daughter had come home fromschool, breathlessly demanding that we throw out everything in her wardrobethat had red in it. She was terrified she would be slashed by the Bloods. Mollysaid so. Molly, the same child who told her that if you look in the mirror and sayBloody Mary three times, you would die. The Bloods, I said. I only knewabout the stories that circulated around the elementary schools , all far from thetruth.

Have you or anyone in your family or anyone you are close to been the

vict im of a crime involving a weapon? A gun? My hand was up again. Twoweeks after we moved into our apartment in Brooklyn, as I was finishing put-ting my daughter to bed, my husband, who is white, came home from an errandto the corner store and called me from the door in a strange, raspy voice. Hehad just been held up at gunpoint one-half block from our house. He had seentwo young African American boys, maybe thirteen, hanging out. He sensed some-thing but hesitated to cross the street, suspecting his instincts as racist. Thebuilding next to ours is almost completely filled with an extended Haitian fam-ily. But what he sensed was, perhaps, a different kind of signal. One of the boys

was suddenly behind him and the one in front shoved a gun into my husbandsbelly and asked for his wallet. My husband described a stop-time moment whenhe suddenly realized that fear could cause the trigger finger to grip. He handedover his wallet and left unharmed.

I looked across at the kid in the courtroom and saw someone who lookedtoo young to carry a gun. But my husband said those who mugged him werebarely teenagers. I saw the scenes of the two events fold over each other. Thetwo images were stuck in the same slot in the slide projector. I thought of myeye exercise, trying to make two images converge into one. Put the bird in thenest, the letter in the mailbox. But I relaxed my vision to see if I could separatethese two narratives. I felt sure I could. I told this to the defense attorney.

Did this experience change your feelings about hand-gun possession?she asked.

No, I replied, I have always had the same opinion.

And what is your opinion?


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That guns shouldnt be possessed.

Except, of course, for law enforcement, she nodded, as if we all under-stood what I really meant.

But I thought about the Amadou Diallo case and the trial I had watchedwith my class.

Well, no, I replied, maybe not even the police.

The quiet in the courtroom was broken. Laughter, murmurs, maybe evenapplause. The audience. I had found a tiny opening. Clearly, now, I wanted in.This was the first moment when I felt some combination of ludic pleasure andsocial commitment.

A few more questions and we were dismissed for lunch. We were in-

structed not to talk to each other, and should we by chance see any of thelawyers or the defendant outside of the courtroom, we were to act as if we hadnot seen them, and they us. We let go of the special ties we had inside thisroom, and we de-roled.13

I bought a salad and ate too quickly. I was filled with a strange mixture ofadrenaline and a kind of ennui, not yet knowing my role. I tried to remainneutral. I could not somehow leave this story behind to read my book, but wastoo emotionally involved to report my observations of the process in the note-book I had brought. I checked my phone messages. There was a message frommy husband, Tim. He sounded strangely quiet and calm. He told me that he was

on his way to the airport, that his mother, whose own stories had been claimedyears ago by Alzheimers, was dying. He was rushing off to her in Vermont. Irealized that I could no longer participate in this other narrative. I felt a deepache in my stomach and in my throat. On Court Street I began to cry: for Tim,for his mother and her lost stories, for his brothers and sisters, because some-one was dying, and oddly, for the defendant whose story I realized I could nolonger play in.

But suddenly I realized that I really wa sinside this trial, and that I felt astrong empathetic connect ion to it. I couldnt just walk out. I couldnt just leave

a message. I had to determine, and follow, proper procedure. There was a struc-ture here. Like in a play or ritual, there were prescribed ways to exit.

I went back up the long stone steps and found a court official. He told methat I must speak to the judge, after the voir dire resumed. If this was really aperformance, I could not just wave goodbye backstage. My exit must be playedout within the performance. I waited outside the courtroom for forty-five min-utes. I wondered how I would tell the judge, how I would get his attention,

way up on his podium. Would I just wave my hand, l ike in a class? Would therebe a moment when he would ask if anyone had anything to say? I realized thatI had stage fright.

We fi led back in. There I was, Juror #1, in my seat . The judge entered. Allrise. The defendant, the attorneys and prosecutors, the court reporter, and thecourt officers. Places. Action. I looked up. I did not know my lines. The scripthad changed. I needed to take an initiative that was not, as far as I understoodit, part of my role.


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I saw the court officer approach the judge. The judge leaned down to hear.He looked up, and said, in his calm, almost monotone, voice, I am told that

Juror #1 would like to speak to me. Juror #1, please approach the bench. Irose, all eyes on me, slid out of my place, crossed down across center stage and

walked up to the bench. As I looked up at the judge, I was flanked by several ofthe main characters, the defense attorney, and both prosecuting attorneys.

I just learned that my mother-in-law is dying, and I must leave town.

The judges face softened, and he looked right into my eyes. I was deeplymoved by the first show of emotion on his face.

Im terribly sorry. You are excused. My sympathies and good luck to you,he said.

I left the courtroom. It was, after this bit of formality, fairly easy to disen-

gage, even though I came to realize that I was taking a part of this story withme.

After Tims mothers funeral, I returned to New York. The tr ia l was surelyover. But it had changed the course of at least one persons life. I decided toreturn to the courthouse and try to find out what had happened.

I went there professionally attired. The visuals that I recalled had changed.I had remembered columns; there were none. In my mind the stage set of thecourt had columns.

Going through the metal detectors , I joked with the security guards. Lookspretty messy, I laughed as the x-ray version of my bag appeared. This time mycharacter was charming.

In the jury postponement room, I approached a woman, very thin, withdyed black hair and olive skin. A wad of iridescent, Day Glogreen gum ap-peared and disappeared in her mouth to a regular, almost sultry, beat. I watchedthe flashes of green for three, maybe five, minutes. She finally mumbled some-thing.

Did you say something to me? I asked.

I said can I help you? she replied, still flashing green.

I hope so. I was wondering whether there are any records of what voirdires are held on what day.

She still was not looking at me.

Why would you need that?

I told her about my half day of voir dire, said that I was a writer and that Iwanted to find out what had happened in the case.

She paused, looked directly at me for a second or two. Try the informa-tion booth in room. . . .

Eventually, after a few more twists, I faced Ron Schwartz, the gray-haired,affable criminal court clerk. He took an interest in me, questioning me like a


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witness. Judges name? What did he look like? What courtroom was I in? Whatfloor? Eight? I guessed. Well, I know it was high up. He laughed. I mistrustedmy visual memory, but guessed: middle aged, darkish hair, glasses, no facialhair, wearing judges robes, I think. Ron Schwartz was amused. We agreed that

I wouldnt make a very good witness. But when I left him, I had a mission. If Icould find out from the jury clerk what section I was assigned to, he could tellme who the judge was, and I might be able to get a transcript of the trial. I hadan ally.

I went back to the dark-haired green-chewing-gum lady. She knew exactlywhat to do and found my juror card quickly. Now she wanted to help. She askedwhat I remembered about the case. I said I thought the defendant was a kid.

Probably, she said. They all are. Just kids. She finally looked at me.

I noticed that she had brown eyes. She left and came back with a list of allthe criminal court judges. She held tightly onto one corner of the page andtilted it towards me, almost out of my eyesight. I sensed that she was not sup-posed to be showing me this, but she told me which ones might fit my descrip-tion and asked if I recognized any names. I could not pick him out.

We both noticed an elderly man behind me, there to do what one is sup-posed to do in this room. He was representing a friend or neighbor who hadbeen called for jury duty. He was angry and anxious. She is completely dis-abled! he protested. (I could hear that English was not his first language.)

Are you related to her? my new ally asked.

She is blind, if you ask. She cant walk, if you ask. She cant even readthis! His hands shook wildly as he held out a form.

Are you related to her?

I am here FOR her.

Could you bring her a form to fill out?

She cant see! She shouldnt get this! His voice was raised and strained.

He was terrified and outraged. Unlike me, I thought, he was not finding his wayinto this legal system.

I headed back to Ron Schwartz, who could now easily identify my judge.Michael Juvelier, he told me with a smile, Hes probably the smartest judge

we have.

I wondered about my elation, not at finding the name, but at finding outhe was smart. I was glad, I guess, because this boded well for a fair outcomeof the trial.

The rest of the story is short. I made several phone calls to the judgeschambers and eventually learned the defendant was found not guilty. Becausehe was a minor, the transcript was sealed.

I was sorry, in a way, not to find my way back into the story, but somehowrelieved by the verdict. I had left the defendant in the beginning, not knowing


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the whole story, and my guilt about that was now relieved. Perhaps I had neededto return for the cathartic satisfaction that Hibbitz talked about. Perhaps it wasbecause of my sense of responsibility to the person who had died. Or, becauseof my empathy for the young boy, the outsider/protagonist/other. Or, I simply

needed to finish the play. All of these, together, led me to think about howjurors enact democracy. A judge can say something, and make it so. A juror, aregular citizen, once cast, can find her way into the story. She can form anopinion and argue a position, which takes bravery and the ability to make con-fident speech acts. Although the rules and structure of the court system arestrict, and make a resistant performance difficult, there are still moments whena juror can speak, and if she does so bravely enough, she, too, might be able tosay something and make it so.

Epilogue

This journey into the content, forms, and pedagogy of performing democ-racy yielded three insights. The first is reflected in Conquergoods nourishingground of participatory experience, here interpreted in the context of peda-gogical practice (Performance Studies 153). My experience confirmed that whenone is studying a process of enactment and a subject that engages issues of ourtime, one does well to enter that world and, to whatever extent possible, putoneself inside it. Further, there is something inherently good about co-performative witnessing (Conquergood, Performance Studies 149) and, whenpossible, actually performing democracy: not just for learning and personalgrowth, but because democracy of the people and by the people points tothe necessity of enactment and participation.

The second insightthe value of a plurality of such enactments, depend-ing on the momentresolved my conflict about having to choose between streetprotests and more officially sanctioned forms of participation. These first twoinsights combined to become an essential part of my practice, not just as acitizen but also as a teacher. I now regularly include a field component in the-atre studies of many kinds, encouraging students to experience and analyze thecultural role of performance beyond theatre, to include such things as trials,demonstrations, and elections.

One week after the attacks on New York City and the Pentagon, as I satwith a group of students , this took on even more meaning. One student, aprofessional actor, confessed that she could no longer see any reason to flossher teeth, so how could she motivate hersel f to think about theatre? We felt weneeded to find a bridge, a way to act. We resolved to become participant/ob-servers and together began to look at the multiple performance rituals that sprangup all around us.

We watched as firefighter funerals were staged on the streets of our ci ty .Fields of flowers covered firehouse entrances and sidewalks, lit by hundreds of

candles. Photos, notes , prayers, and poems taped to walls formed a backdrop tosilent vigils. Flags appeared everywhere, some waved as props and others pinnedas accessories onto clothes. Patriotic fervor brought audiences to their feet tosing the Star Spangled Banner with Broadway casts . This same fervor broughttourists to New York City to touch the tragedy, to support the economy, and togo to the citys newly created theatre, Ground Zero. These were performances


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of mourning and loss, some of rage, some of patriotism, but together they servedas unifying rituals that attempted to heal the community.

And then, in 2002, many people moved into the streets once more to pro-test the actions of our government as it prepared for war with Iraq. I was amongthem, standing in the freezing and crowded streets of New York City, hemmedin by crowd-control barricades and mounted police. Nearby, a group of teenagegirls, arms linked, flushed with perhaps their first opportunity to publicly dem-onstrate their political convictions, began passionately chanting:

THIS is WHAT deMOcracy LOOKS LIKE!

THIS is WHAT deMOcracy LOOKS LIKE!

Soon the chant filled the street.

Finally, the third insight is that this study of theatre and law points the wayto a pedagogical practice which allows theatre students to examine the work-ings of our own democracy. For example, an understanding of the role of theperformance of a public trial for the wider audience, beyond the play within,sheds a harsh light on the absence in recent years of performed democracy onthe part of our government. Since 9/11, the Bush administration has restrictedpublic access to government deliberations. At the same time, it is shrinking therights of citizens to privacy and due process. The most egregious examples ofthis trend are to be found in the refusal to follow international law, such as theGeneva Convention, in the treatment of foreign citizens detained in the name ofnational security. Hundreds of prisoners are being held as illegal combatants

at Guantanamo Bay, Cuba, without access to lawyers or contact with families.

Although the United States Supreme Court recently ruled that theGuantanamo detainees have the right to a hearing, none has been tried. Themilitary tribunals, if they ever happen, are to be secret, allowing a formal enact-ment of the idea of trial, which the public will never see. In these performances,according to British Lord of Appeal Johan Steyn, the mil itary will act as interro-gators, prosecutors, defense counsel, judges, and when death sentences areimposed, as executioners (3). As Thurmond Arnold would no doubt remind us,this move toward efficiency signals a move away from dramatized, fair, publicproceedings, and a lack of tolerance for the playing out of contradictory social

values (130). In this moment in American history, performances which engen-der empathy for the other are restricted, if they are allowed at all.

This absence of public trial performance renders the prisoners and theirsituation invisible and secret. In addition, it means that in this case there is noplay without. There will be no occasions that call the community to witness,help us to organize and understand this experience, give us what Hibbitz calledstructured opportunities for dissent, opportunities to develop empathy for theotherliterally aliencombatants, or to provide a historical record of what Arnoldcalled blind phobias.

Still, this story ends, for me, on a hopeful note. What I and, I trust, mystudents have learned is that performing democracy is key to the health of oursociety. Engaging in these performances is part of what connects us all as citi-zens. This understanding propels us, even in these most difficult times, to find

ways to act, and to urge our government to recommit to the ri tuals and dramasof democracy.


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166 Lucy Winner

Lucy Winn eris Professor of Theatre at Empire State College, State University ofNew York, an alternative college for adults. She mentors performing artists re-turning to school in midcareer, teaches theatre and interdisciplinary studies such

as theatre and community practices and theatre of the law, working with per-forming artists as well as school nurses, police officers, teachers, and humanservice workers.

Notes

I would like to thank Jessie Allen for a truly inspiring collaboration, Jan Cohen-Cruz and

Alan Mandell for generous mult iple readings and conversations, Richard Kuhns, Lesl ie

Satin, Jane Desmond, and Deborah Mutnick for insightful comments at various stages,

and Tim Connor for excellent, relentless editingalso Joan Herrington and Theatre

Topicsreaders for valuable suggestions.

1. Jessie Allen is Acting Assistant Professor of Law in the Lawyering Program at New

York Universi ty School of Law and a doctoral candidate at Columbia University Law

School.

2. In addition to the field of performance studies, there is also considerable scholarship

in the practice of experiential learning, from Deweys early writings in the 1930s to

contemporary critical analyses. For more discussions, see Boud et al., eds., Using

Ex pe ri en ce fo r Le ar ni ng; Dewey, Exp eri en ce an d Edu cat ion ; Kolb, Exp er ien ti al

Learning; Mezirow et al., Foster in g Crit ic al Refl ecti on ; Michelson, Beyond GalileosTelescope; and Mulligan and Griffiths, eds., Em po wer me nt th ro ugh Ex pe ri en ti al

Learning.

3. See, for example, Arnold, Hibbitz, and Berman.

4. This ludic quality may help explain the fascination with televised courtroom dramas,

ranging from Perr y Mason, L. A. La w, Law an d O rd er, and The Practice, to Court TV, on

which actual tr ials are televised.

5. As in the television show Law and Orde r.

6. For divergent contemporary opinions about the fairness of the trial, see Wheeler and

Wood, Fres h Ver dict s on Joan of Arc.

7. Joans story has become the subject of many plays. The best known include Schillers

The Maid of Orleans, Shaws St. Joan, AnouilhsThe Lark, Shakespeares He nr y V I, part

1, and BrechtsSt. Joan of the Stockyards, as well as at least two operasVerdis Giovana

dArco and TchaikovskysThe Maid of Orleansand over thirty f ilms, including Dreyer s

The Passion of Joan of Arc.

8. For further discussion of the Scottsboro case, see Miller et al., Mother Ada Wright;and Carter, Scottsboro.

9. All quotes from this hearing are from my own observation, unless otherwise noted. A

transcript of the hearing is available from the United States District Court, Eastern District

of New York.


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10. Much has been written about the South African Truth and Reconciliation Commission

in this regard. See, for example, L lewellyn and Howse, Institutions for Restorative Justice.

11. The term voir comes from an old French word for truth.

12. For more discussion of the issue of eyewitness testimony, see Frank and Frank, Not

Guiltyand the judges opinion in United States v. Norwood.

13. This term comes from psychodrama and drama therapy, and is a process by which

participants in an enactment achieve closure and distance themselves from the role they

have been playing. See Blatner, Acti ng -In.

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the Prosecution of Animals and Inanimate Objects. New York University Law Review69 (May 1994): 288326.

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Journalistic Articulations of the Legitimacy of Science and Religion. Popular Trials:

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Cowell, Alan. U.S. Thumbs its Nose at Rights, Amnesty Says. New York Times26 May

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Dewey, John. Experience and Education.1938. New York: Collier, 1963.

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Savage, Charlie. 4 Ex-Detainees Sue Rumsfeld, 10 Others. Boston Globe28 October,

2004. A2+.


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Schechner, Richard. Between Theatre and Anthropology. Philadelphia: U of Pennsylvania

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Steyn, Johan. Guantanamo Bay: The Legal Black Hole. Theatre Program, Guantanamo:

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