by Kara Westerman
Charles Irvin Fain, a Vietnam veteran who had served with the 101st Airborne and had difficulty holding a job after his honorable discharge, was convicted on Feb. 24, 1982, of the kidnapping, rape and murder of a nine-year-old girl from Nampa, Idaho, abducted as she walked to elementary school, and thrown into a ditch near the Snake River. Mr. Fain served 18 years of his death sentence.
A forensics expert from the Federal Bureau of Investigation said a standard microscopic examination found that three hairs found on the girl’s body could have been Mr. Fain’s. Despite passing a polygraph test, that evidence, coupled with the testimony of two jailhouse informers, earned him the death penalty.
Imagine being arrested and charged for a violent crime that you haven’t committed, and then imagine a trial with evidence, some strands of hair close to yours in color, that are believed to confirm your guilt; being found guilty by a jury and sentenced by a judge, and spending years facing execution on death row, where, if you know what’s good for you, you have to agree to the fiction. Imagine the years stolen — your parents die, your children grow up. Ultimately you would bend and twist yourself into a new shape to learn to live with the hopelessness.
All of this is captured in a single image of Charles Irvin Fain, a shadowy figure standing at the drop off edge of a ravine on a foggy night with the headlights of his car behind him, glowing and diffusing the light just enough to mask his identity. Could anyone looking at this photograph of him pick him out of a line-up?
The portrait of Fain is part of photographer Taryn Simon’s earliest project, “The Innocents,” currently on view at Guild Hall in East Hampton.
In 2000, Ms. Simon was sent on assignment by the New York Times to document a growing number of exonerated individuals who had served time in prison for crimes they did not commit. She eventually won a Guggenheim grant to continue work on the project.
What is shocking and surprising about the series of photographs in the exhibition is her choice to photograph the subjects at sites of “particular significance to their illegitimate conviction,” according to Ms. Simon’s website — the scene of the crime, scene of misidentification, arrest, or alibi. All of these locations hold contradictory meanings for the subjects. The scene of arrest marks the starting point of a reality based in fiction. The scene of the crime is at once arbitrary and crucial: this place, to which they have never been, changed their lives forever.”
This juxtaposition is one of the reasons the photographs work so well describing the surreality of the subject’s situation. They are frozen, like statues, in their own timeline, as if they can’t move until they come to terms with the years that have been stolen from them.
Since the primary cause of wrongful conviction is mistaken identity, at issue, Ms.Simon says on her website, “is the question of photography’s function as credible witness and arbiter of justice.”
Ms. Simon says she wants to confront photography’s ability to “blur truth and fiction — an ambiguity that can have severe, even lethal consequences.”
First exhibited at MoMA PS1 in 2003, the work is being re-presented “at an historical moment when the lines between truth and falsehood are being continuously manipulated and redrawn,” according to Guild Hall.
The friction and dissonance of seeing these portraits hanging in bucolic East Hampton’s Guild Hall is akin to the friction and dissonance caused by the exonerated photo subjects being placed for their portraits at the scenes of the crimes.
But what makes gazing at them uncomfortable is not just our rubbernecking tendency at the scene of an accident, but also that the subject’s gaze is directed back at us.
How many of us have ever imagined being wrongly convicted? Possibly, not many of us who go regularly to Guild Hall have spent much time considering being imprisoned, falsely or otherwise. And if we did, we were sure that false imprisonment was something of a rare exception in our legal system.
The two civil rights attorneys who started The Innocence Project, Peter Neufeld and Barry Scheck, met as public defenders at the Bronx Legal Aid Society in the early 1990s, where they were learning that cases of false imprisonment due to faulty DNA evidence weren’t all that rare at all. The Innocence Project started as a legal clinic at Benjamin N. Cardozo school Of Law at Yeshiva University in 1992. The exhibition of “The Innocents” at Guild Hall coincides with the 25th anniversary of their non-profit legal organization, which works to reform the criminal justice system.
“Twenty-five years ago, we began as lawyers, advocates and law students determined to use science to end wrongful convictions. The idea was simple: If DNA technology could prove people guilty of crimes, it could also prove that people who had been wrongfully convicted were innocent,” they said on their website.
Today they are responsible for most of the post-conviction DNA exonerations in the United States — 350 and counting.
In the beginning of their work there just weren’t any laws that gave convicts the right to access post-conviction DNA testing.
“Each exoneration was hard fought and, at times, required changing state laws,” said the attorneys.
But as more and more exonerations exposed flaws in the system, that led to more claims of innocence. Proving people innocent through DNA forced the system to reexamine itself, and all the players to reexamine their part, from the forensic experts on down through prosecutors, police, judges, and even defense attorneys.
“With each exoneration, a life is restored, a family is reunited and often the person who actually committed the crime is identified,” say the attorneys.
Several thousand letters arrive at their offices each year from inmates all over the country and The Innocence Project’s intake staff have to analyze which cases can be taken on.
Since 1992, 550 Cardozo Law School clinic students have been trained to take on 80 staff positions, and The Innocence Project has grown into The Innocence Network, with over 69 participating law schools in the United States.
There have been 350 exonerations to date, 50 states now have post-conviction DNA testing, 25 states record interrogations, 20 states have improved eyewitness procedures, and 32 states have wrongful conviction compensation laws.
The 2004 Justice for All Act, which provides $50,000 per year of federal wrongful incarceration, (double that for time served on death row), and President Obama’s signing of the Wrongful Convictions Tax Relief Act in 2015 are important federal advances in policy reform.
“The Innocents” will be on View at Guild Hall in East Hampton through July 30.
Kara Westerman is a published fiction author, teacher, oral history facilitator, and leader of Amagansett Writer’s Collective. She received her fiction MFA from Sarah Lawrence College and produces and hosts the podcast Phantom Hampton: Stories From Where The Rest of Us Live.