Re-imagining the Nonfiction Criminal Narrative ... Crime/4.pdf · Re-imagining the Nonfiction Criminal Narrative: Documentary Reenactment as Political Agency Kristen Fuhs School of

Concentric: Literary and Cultural Studies 38.1March 2012: 51-78

Re-imagining the Nonfiction Criminal Narrative:

Documentary Reenactment as Political Agency

Kristen FuhsSchool of Cinematic Arts

University of Southern California, USA

AbstractTaking a close look at Emile de Antonio’s In the King of Prussia (1982) andLynn Hershman Leeson’s Strange Culture (2007), this article explores how adefendant’s participation in a documentary reenactment of his or her alleged crime or criminal trial can complicate our reading of a case’s social and cultural history. As both a literary and performative technique, reenactment isespecially well suited to documentary investigations of true crime and legalsubjects. The legal trial is already, in a sense, a conjectural reenactment of ahistorical event, and the true crime genre is itself about fostering a return tothe scene of the crime through its recreation and representation. This articlefocuses on documentaries in which subjects who have been accused of crimesagainst the state collaboratively reenact elements of their cases outside of (andnotably separate from) the institutions that traditionally officiate legal speech.In the King of Prussia and Strange Culture use reenactments to help theirsubjects recover justice in situations where the law has failed to produce it.Both films highlight ways in which subjects who are caught up in thedisciplinary power of the law must use alternative means in order to reasserttheir own subjectivity and reclaim a sense of agency over their ownrepresentations. Documentary becomes a space for these men and women,criminalized for their political beliefs and activist behavior, to challenge law’s power and reconstitute themselves as social subjects.

Keywordsdocumentary, reenactment, law, agency, trial, performance

52 Concentric 38.1 March 2012

[T]rue crime is premised on an inventory ofthe aftermath and a return to the scene of thecrime. It consists, along those lines, in aconjectural reenactment of the crime.

—Mark SeltzerTrue Crime:

Observations on Violence and Modernity

In the first weeks of April 2008, Academy Award-winning documentaryfilmmaker Errol Morris published a two-part opinion piece in The New York Timeson the topic of documentary reenactment. Both a preemptive response to thecoming critical backlash against his use of stylized reenactments in StandardOperating Procedure (2008) and a return to the controversy they generated almosttwenty years earlier in The Thin Blue Line (1988), the piece is in many ways adefense of reenactment as both a valid documentary practice and as a powerful toolfor uncovering truth in a story. “Critics argue that the use of re-enactments suggesta callous disregard on the part of the filmmaker for what is true. I don’t agree,” Morris explained. “The engine of uncovering truth is not some special lens or even the unadorned human eye; it is unadorned human reason. It wasn’t a cinéma véritédocumentary that got Randall Dale Adams out of prison. It was a film thatre-enacted important details of the crime” (“Re-enactments, Part One”; emphasis inoriginal).

Although the use of reenactment goes back to the beginnings of documentaryfilm practice, the formal strategy has continued to elicit controversy. Concernsabout the authenticity and credibility of reenacted images pervade both critical andpopular discourse: accusations of fakery and historical fraud have followeddocumentaries such as the Academy Award-winning short Mighty Times: TheChildren’s March(Robert Houston, 2004) while public discussions followingscreenings of Chicago 10 (Brett Morgen, 2007) and Burma VJ (Anders Østergaard,2008) that I attended at the University of Southern California revealed a widespreadnervousness about the practice, as audience members questioned the authenticity ofthe films’ reenactments and were troubled by how their use disrupted the films’ presentations of “objective reality.”

Despite this skeptical concern, however, reenactment has remained a vital toolfor dramatizing historical events in documentary film. In both The Thin Blue Lineand Standard Operating Procedure, Morris uses reenactments to evaluatecompeting and conflicting pieces of evidence in order to produce a more nuancedpicture of the crimes around which each of the films is focused. Whether it is themurder of a young Dallas police officer or the abuse and torture of detainees at the

Kristen Fuhs 53

Abu Ghraib prison, both films use reenactments as a strategy for confronting thelimitations of memory and perception; reenactments highlight the details of a trafficstop or an interrogation gone wrong, and in doing so they draw attention to themultiplicity of facts and behaviors that allow us to, as Morris explains, “imagine and re-imagine the world around us” (“Re-enactments, Part Two”).

What’s more, the subject matter of these two films highlights a particularaffinity between theme and form, which suggests that (as both a performative and aliterary technique) reenactment might be especially well suited to documentaryinvestigations of criminal and legal subjects. Film scholar Bill Nichols has arguedthat the goal of reenactment in documentary (and also its “impossible task”) is “to retrieve a lost object in its original form” (“Documentary Reenactment” 74). Similarly, the presentation of a case in court is geared toward producing credibleknowledge of a past event. Legal scholars Jennifer L. Mnookin and Nancy Westhave argued that the entire structure of American evidence law is set up “to enable the reproduction of the ground-zero moment” of when a crime occurred and “to assess what truly happened” in its aftermath (385). The presentation of a case incourt is a performance of relevant and material elements, reenacted for reflectionand judgment and designed to make the jury witnesses to that “ground-zero” moment. Like reenactments in a documentary, facts are presented and reconstructedat trial in order to produce a particular, and a persuasive, view of reality.

It follows then that a fundamental affinity exists between reenactment, the law,and the true crime narrative: the legal trial is already, in a sense, a conjecturalreenactment of a historical event and, as literary theorist Mark Seltzer has argued,the true crime genre already exists as “a way of returning to the scene of the crime by way of its recreation and representation” (37). Reenactments in documentary film are aspirational and analogical: they seek to produce knowledge of a past eventby recreating its conditions for production and suggesting that a truth-value lies inthe restaging. The technique intricately weaves together strands of history, memory,and performance to facilitate the reproduction of a historically situated subjectivitythat makes possible a sense of “having-been-there-ness” that, as Nichols has argued, imbues facts “with the lived stuff of immediate and situated experience” (“Documentary Reenactment” 80).

Reenactments seek to grant us access to this “ground zero” moment, thereby making us virtual witnesses to history. But, as film scholar Ivone Margulies hasargued, reenactment in documentary also provides a second-degree indexicality,where a performance recalls an original event, “but in so doing can also reform it” (220). If this is the case, how then might documentary reenactments that feature an


event’s original actors complicate this historical re-formation? In what way mightthese embodied performances provide a vehicle for those who have beenmarginalized, criminalized, or persecuted to reassert themselves as active socialsubjects? Might participating in a filmed reenactment of an alleged crime orcriminal trial allow for the generation of new representations that have the potentialto eclipse formerly dominant ones and challenge the law’s moral authority?

If reenactments in juridical documentaries such as The Thin Blue Line allowfor a re-examination of the material and contingent facts of a case, thenreenactments that feature the event’s original actors, or participatory reenactments, facilitate a dual forensic engagement with the case on the level of history andperformance.1 Richard Schechner has described performance as rehearsed, or“twice-behaved behavior” (36). The concept of performance, though aligned with a wide variety of cultural practices, has often been most closely associated with thetheater. However, performance studies scholar Julie Stone Peters argues thatperformance is frequently read as analytically and ontologically opposed to theater.“[W]here theatre is mimesis (imitation), performance is methexis (participation),” she explains. “[W]here theatre is pretending, performance is the real” (184). In aligning the concept of performance with acts of repetition, participation, and anevocation of the real, Schechner’s and Peters’s words here seem almost to speak directly to the epistemological project of the documentary reenactment.

Documentary films have always expressed performative qualities, but theperformative did not really emerge as a dominant mode of documentary filmmakinguntil the 1980s.2 In Blurred Boundaries, Bill Nichols identified the performative asa new mode of documentary filmmaking, pointing to the emergence of a group offilms (including, among others, films such as Tongues Untied [Marlon Riggs, 1989],The Body Beautiful [Ngozi Onwurah, 1991], and Our Marilyn [Brenda Longfellow,1987]) that he thought marked an emphatic shift in strategies of expression and

1 As I have argued elsewhere, juridical documentaries are nonfiction films whose primarydiscursive focus is on judicial proceedings or the administration of the law. For more on thejuridical documentary, see Fuhs.

2 In the work of J. L. Austin, Judith Butler, Andrew Parker, and Eve Kosofsky Sedgwick,performativity (as opposed to performance) is most often understood as a speech act, one thatperforms an action or identity instead of describing one, a “discursive practice that enacts or produces that which it names” (Butler 13). For the most part, however, this article discusses performativity as it relates to documentary modalities rather than linguistic philosophies orsymbolic identity.

Kristen Fuhs 55

argumentation.3 These films emphasized the subjective and affective dimensions ofhow we understand the world. They were iconic rather than indexical, evocativerather than descriptive. Performative documentaries demonstrated “how embodied knowledge provides entry into an understanding of the more general processes atwork in society” (Introduction 131).

During this same era, we also begin to see a historical shift towardself-representation and autobiography in documentary filmmaking. Bothhistorically specific and culturally determined, this shift in subjectivity coincidedwith a social climate that Michael Renov argues was “characterized by the displacement of the politics of social movements (e.g., antiwar, civil rights, thestudent movement) by the politics of identity” (176-77). The women’s rights movement, he argues, was especially instrumental in politicizing “personal” issues like gender, race, and sexuality, and “subjectivity, a grounding in the personal and the experiential, fueled the engine of political action” (177). This turn towards subjectivity reflected an activist impulse in relation to identity politics indocumentary, as subjects began to assert agency in their own representations.

Reenactment, then, begins to reassert its vitality at the same time thatperformance and autobiography become common expressive strategies indocumentary filmmaking. The connection between reenactment and performance isclear—the recreation of historical events on film is necessarily a performedact—but we do not often associate reenactments with self-expression. The termmost likely conjures up images of men play-acting soldiers in civil war battles, notperformative engagements with more personal histories. And yet, documentaryfilmmakers began to use reenactment as a strategy for doing just that. Reenactmentbecame a community activist event in Two Laws (Carolyn Strachan and AlessandroCavadini, 1981), where filmmakers and Aboriginal community memberscollaborated on a documentary that used reenactments to represent the myths andstories that were so much a part of the Aboriginal identity.4 It was a strategy forre-engaging with personal history in films like Shoah (Claude Lanzmann, 1985),Little Dieter Needs to Fly (Werner Herzog, 1997) and S21: The Khmer RougeKilling Machine (Rithy Panh, 2003), where a combination of what Jonathan Kahanacalls “Freudian technique and method acting” helped subjects confront their traumatic memories of the Holocaust, Vietnam, and the Cambodian genocide

3 The performative became the fifth of Nichols’ documentary modes (after the expository, observational, participatory, and the reflexive). A sixth mode—the poetic—was later added to histeleology.

4 For more on Two Lawsand its use of reenactment, see Kahana, “Re-staging Two Laws.”


(“What Now?”50). And, as I will explore in this article, more personal andsubjective reenactments were also used in films about the legal process as a meansof challenging the court’s position as a capable arbiter of fair and legal justice.

Taking a close look at two of these juridical documentaries—Emile deAntonio’s In the King of Prussia (1982) and Lynn Hershman Leeson’s StrangeCulture (2007)—this article will explore how a defendant’s participation in a documentary reenactment of his or her alleged crime or criminal trial cancomplicate our reading of a case’s social and cultural history. These films have similar production histories: each was independently produced, distributed on asmall scale, and directed by a politically active, left-leaning filmmaker. Alsomethodologically similar, both films are documentaries in which accused subjectsand professional actors work together to reclaim control of the narratives of theirrespective criminal cases. Moreover, they both self-consciously explore therelationship between embodied performance, reenactment, and confession throughlegal narratives that subvert the court’s (and, by extension, the state’s) privileged position as the definitive shaper of objective truth.

While formally and narratively diverse, juridical documentaries throughouthistory have tended to be thematically consistent, focusing on the institutional flawsand ideological biases that cause the justice system to fall short of the fair and justresults we expect it to produce—and In the King of Prussia and Strange Culture areno different. Both of these films are about law, power, and resistance in politicallycharged times. In the King of Prussia is a piece of video advocacy, both from andabout the late cold war era, and it deals explicitly with the social and politicaltensions surrounding nuclear disarmament. Strange Culture is a post-9/11 narrativeabout the conflict between national security and civil liberties, a conflict thatcrystallizes around an artist, his wife’s untimely death, and the United States government’sparanoia surrounding bioterrorism. In both of these films, men andwomen who have been accused of crimes against the state are given an opportunityto speak about their actions outside of (and notably separate from) the institutionsthat traditionally officiate legal speech; participatory reenactments in thesedocumentaries ultimately allow the films’ subjects to present their stories free from the limits and redactions of legal procedure and government gag orders.

Instead of inviting the “threat of disembodiment,” then, as Nichols has proclaimed,5 I would argue that reenactment in these documentaries allows “for a

5 Nichols has suggested that documentary reenactments often create a “body-too-many” problem, where the bodies of those in reenactments produce a double of the bodies they represent.Because a reenactment is tied to a present that is distinct from the past it represents, the technique,

Kristen Fuhs 57

continuous engagement of a self . . . in social reality” (de Lauretis 182). In AliceDoesn’t: Feminism, Semiotics, Cinema, Teresa de Lauretis uses this phrase todescribe the experiences by which women are constructed as subjects in society. Iborrow it here, however, to suggest it as an apt descriptor for how participatoryreenactment can work to help persecuted and criminalized bodies reconstitutethemselves as social subjects. Participatory reenactments can allow for the samebody—existing in the present but referencing the past—to simultaneously describean old event and perform a new action without necessarily producing another body.These reenactments allow subjects to publicly and collaboratively (re)perform apersonal history, and do so in a way that allows them to recover some bit of controlover the cultural legacy of their own representations.

As such, this article will also argue that participatory reenactments canperform an important function in terms of reclaiming a sort of political agency inthe juridical documentary. Robert Blackson, curator of the 2005 art exhibition OnceMore . . . With Feeling: Reenactment in Contemporary Art and Culture, argues forthe “liberating trait” of reenactment, as well as its “emancipatory agency” (29-30).He insists that allowing personal memory and recollection to structure a reenactedperformance provides an avenue through which subjects can “act outside thehistorical script” (33). In the King of Prussia and Strange Culture employreenactment to visualize a counter-narrative that complicates the official, legalrecord. In both cases, reenactment functions to subvert the court’s privileged position as the definitive shaper of objective truth, where performance becomes atransgressive act manifested as a challenge to legal authority. As a result, thesefilms show how juridical documentaries and the temporally dis-located (butultimately culturally re-inscribed) body can become implicated not only in theprocess of public memory but also in the construction of social and culturalhistory.6

Embodiment, Confession, and Legal Performance

The legal trial is arguably the most identifiable performance of law in ourculture. It provides the drama of one-on-one confrontation and contains a built-in

Nichols argues, “presents the threat of disembodiment; the camera records those we see on screen with indexical fidelity, but these figures are also ghosts or simulacra of others who have alreadyacted out their parts” (Blurred Boundaries 4).

6 I am indebted to Julia Bryan-Wilson’s work on Yoko Ono for suggesting a link between dislocated bodies, performance, and memory. For more on this connection, see Bryan-Wilson.


suspense factor through the dramatic climax of a jury’s verdict. But, as Julie Stone Peters contends, performance is “an essential part of legal meaning outside the trialas well,” where policing, penal operations, and political theater “display and publicize the law, demonstrate law’s force, [and] act as dramatic exemplars” (181). Indeed, Peters suggests that law might in fact be “the ultimate performative institution” considering the way it constitutes frameworks of subjecthood and subjectivity (181). Thinking through the way in which these legal performancesmanifest themselves on screen, especially in documentary (whose perceivedrelationship to the real might seem to put it at odds with notions of performance andperformativity), helps us position reenactment in relation to discourses of the body,political agency, and legal subjectivity. Participatory reenactments offer more thanjust a way to dramatize evidence. They are self-consciously reflexive acts in whichembodied testimony evokes a past historical event while simultaneouslyre-establishing the conditions for how that event should be viewed and understoodin the future. And as a result, participatory reenactments can become a site ofliberation and emancipation for the documentary subject who has been caught up inthe overwhelming force of law’s power.

Reenactments in which subjects engage with and even re-perform their ownexperiences represent a conscious performance of self that exceeds the limits ofhistorical inscription. In these participatory reenactments, subjects use their wordsand bodies to both describe and perform their historical selves.7 The body bridgestemporal and spatial gaps—it is what connects a past event with a presentperformance. This bodily co-presence signifies what Ruth Erickson has called a“dialectic between connection and difference,” in which the tension between past and present determines reenactment’s potential for both creativeand critical impact(107). It is important to the participatory reenactment that audiences recognize itsstatus as a re-performance, but one that produces a counter-narrative to establishedhistories and representations. Writing about mixed media artist Pierre Huyghe’s TheThird Memory, a short film in which convicted bank robber John Wojtowicz(famously played by Al Pacino in Sidney Lumet’s Dog Day Afternoon) reenacts hisattempted robbery of a Chase Manhattan bank in Brooklyn, Erickson argues that thefilm is “liberating” for Wojtowicz not only because it offers him an outlet for re-presenting the “facts” in his case, but because it allows him to challenge previous

7 Critiquing Nichols’s configuration of the performative mode, documentary scholar StellaBruzzi proposes a theory of documentary performativity that focuses on its reflexive component.Drawing on the work of Butler and Austin, Bruzzi has described performative documentaries asthose that “function as utterances that simultaneously both describe and perform an action” (186).

Kristen Fuhs 59

representations of the event while negotiating his own past memories (109).Wojtowicz’s body connects him to the history of the robbery, though at atwenty-eight-year remove; it is the same body, but different—inextricably changedby fourteen years in prison. It is this personal connection, though, that allows him tobegin to recover his own representation (from Hollywood, from the news media,from history) and assert a level of control over his own image.

Reenactments such as Wojtowicz’s are most certainly a negotiation—ofhistory, of memory, of prior representations. In creating an active (oftentimesoppositional) engagement with the history of their own subject cases, thesereenactments dispute a totalized view of history, and in doing so they helpsynthesize these new performances with more established histories. As a result,these reenactments are examples of how a temporally dis-located body can be bothreimagined and culturally reinscribed within our public memory and our socialhistory. This is because, rather than conjuring a “body-too-many,” participatory reenactments manage to simultaneously describe an old event and perform a newaction without producing another physical body. Re-performing one’s own actions does not necessarily create a new self; rather, this performance conjures a particular,historically-situated self that allows a subject to reassert a sense of agency withinthe representation of his or her personal history. In his writings on the ontology ofperformance, theater director Peter Brook has suggested that the act ofrepresentation denies time. He argues that a representation “takes yesterday’s action and makes it live again in every one of its aspects—including its immediacy. . . . [A]representation is . . . a making present” (139). The indexical value then, or the authenticating aura of the participatory reenactment, lies in the self-consciouscollapse of time and space and this focus on the body that, through performance anda reengagement with personal, historical events, seeks to deny the framework ofsubjecthood that the law would seek to produce.

So, while all documentary reenactments allow for the illustration of priorwitness, participatory reenactments in particular become a vehicle for thepresentation of self—a sort of embodied performative confession. As many scholarshave argued, confession has become the dominant form of self-examination andself-expression in our contemporary Western culture, one that is indubitably linkedto the production of personal truth.8 Writing about this confessional urge, literaryscholar Peter Brooks suggests that in our increasingly secularized society, “truth ofthe self and to the self have become the markers of authenticity, and

8 For more on confession and self-expression in Western culture, see Brooks, TroublingConfessionsand “The Future of Confession.”See also Foucault; Renov.


confession—written or spoken—has come to seem the necessary, though risky, actthrough which one lays bare one’s most intimate self, to know oneself and to makeoneself known” (Troubling Confessions 9; emphasis in original). Confession, then,is both a legal act and a powerful form of self-expression—a ritual grounded firmlyin relations of power and knowledge.

Remarkably, the United States criminal justice system has a long andscattered history of incorporating the confessional quality of reenactments asforensic evidence in the courtroom. In the earliest recorded case of this from 1947,three men were charged with the robbery of a south Los Angeles liquor store andthe murder of its owner.9 On March 1, 1947, James Dabb, Joel Harrison, andClayburne Campbell held up Louie DiCioda’s liquor store, fatally shooting the proprietor before taking roughly $75 from his cash register. Upon their subsequentarrest, each man confessed to his part in the crimes and agreed to reenact them onfilm, where they would play themselves and a police officer would play themurdered business owner. When the film was screened in court, the jury first saw arehearsal of each incident, during which the defendants were asked to demonstratetheir actions so proper blocking could be set up for the camera. Following this, thejury was shown an uninterrupted performance of their actions on the night of therobbery.

Dabb’s, Harrison’s, and Campbell’s reenactment of their crimes served to substantiate their confessions, thereby reasserting their guilt. Why the defendantswould have agreed to film these reenactments in the first place is unclear, andcertainly seems naïve by today’s standards. 10 However, these reenactmentseventually became a cornerstone of the defendants’ appeal, as they argued against the film’s admissibility by claiming that its representation of the crime had resulted in an unfair trial. In response, the California Supreme Court’s opinion denying their appeal offers a particularly trenchant analysis of the power of the moving image andthe innate confessional quality of the participatory reenactment:

A motion picture of the artificial recreation of an event may undulyaccentuate certain phases of the happening, and because of the

9 See People v. Dabb, 197 P.2d 1 (Cal. 1948). See also Mnookin and West 378-80.10 Remarkably, case law shows a number of subsequent examples in which defendants have

voluntarily reenacted their crimes on film or videotape. See Grant v. State, 71 So. 2d 361 (Fla.,1965); Missouri v. Paul Michael Anderson, 862 S.W.2d 425 (Mo. App. 1993); Missouri v. StaceyA. Lannert, 889 S.W.2d 131 (Mo. App. 1994); People v. Roman Earl Barnes (Cal. App. Unpub.,2002); Thompson v. State (Iowa App., 2003); People v. Antwion Edward Thompson (Cal. App.Unpub., 2004); People v. Michael Stephen Combs, 34 Cal. 4th 821 (2004).

Kristen Fuhs 61

forceful impression made upon the minds of the jurors by this kind ofevidence, it should be received with caution. As pointed out by[evidentiary expert John Henry] Wigmore, such a portrayal of anevent is apt to cause a person to forget that “it is merely what certain witnesses say was the thing that happened” and may “impress the jury with the convincing impartiality of Nature herself.” (3 Wigmore, Evidence [3d ed.], § 798a, p.203.) However, when the events whichare being photographed consist of a voluntary reenactment by theaccused of what occurred, there is little, if any, danger of misleadingemphasis which is unfavorable to him. Moreover, as a method ofpresenting confessions, sound motion pictures appear to have aunique advantage in that, while presenting the admission of guilt,they simultaneously testify to facts relevant to the issue of volition.(People v. Dabb)

Both a legal judgment and a surprisingly insightful piece of film criticism, theCalifornia Supreme Court’s decision in People v. Dabb sheds light on the court’s position regarding film as evidence. Touching on the relationship betweenspectators and images, the media’s influence on the public’s recognition and understanding of social behavior, and the power of performance in a legal setting,this opinion raises questions about the moving image that are still being debatedmore than sixty years later. Regarding documentary in particular, it raises questionsabout an audience’s ability to recognize the filmic codes that differentiate documentary and fiction film, and the epistemological quandary that mightaccompany this slippage. This, of course, is a criticism that is still being leviedagainst filmmakers who use reenactment to illustrate prior witness in documentaryfilm.

The film in People v. Dabb was made for a private rather than commercialaudience, and thus the history of its production and exhibition differs greatly fromthe films discussed below. And yet, this example demonstrates how reenactmentallows subjects (whether through capitulation or resistance) to actively engage withthe history of their case and position themselves in an alternative legal framework.In People v. Dabb, reenactment in the juridical context was demonstrative as wellas evidential—it replicated the defendants’ crimes and closed down any space for a counter-reading of the performance. Yet, as I will argue below, participatoryreenactments in juridical documentaries can just as often be seen as sites of agencyand emancipation. A defendant’s participation in a filmed reenactment of an alleged


crime or a criminal trial can allow him or her to generate new representations thathave the potential to eclipse formerly dominant ones. In Emile de Antonio’s In theKing of Prussia, for example, participatory reenactment becomes a vehicle ofsocio-political resistance for its subjects, allowing them to shift the site of agencyby disavowing the trial’s (and, by extension, the American justice system’s) abilityto reconcile complex legal and moral issues in order to render a fair verdict in theircase.

In the King of Prussia: “It’s a trial film, basically”

On September 9, 1980, eight Christian peace activists entered the GeneralElectric Nuclear Missile Division in King of Prussia, PA. They hammered dentsinto two missile nose cones, poured vials of their own blood on classifieddocuments, destroyed blueprints, then chanted prayers for peace while they waitedfor the authorities to arrest them. This act of civil disobedience resulted in felonyindictments and a criminal trial for each of the activists. These men and women,who have since collectively come to be known as the Plowshares Eight, were barredat trial from presenting a “justification defense” in which they hoped to argue thattheir actions were a necessary intervention against the imminent threat posed bynuclear weapons. As a result, the trial was virtually open and shut: the Eight did notdeny their actions, but had hoped the trial would grant them a public forum inwhich to discuss the threat of nuclear proliferation.

Unfortunately, the mainstream news media showed little interest in their story.But documentary filmmaker and left-wing political activist Emile de Antonio,disillusioned by the violence he encountered while making his previous film aboutthe Weather Underground (Underground, 1976), was drawn to the Eight’s act of passive civil disobedience as a model for social change. His interest in the case wasonly strengthened by a prior relationship with two of the defendants; both Philipand Daniel Berrigan had been in prison previously for burning draft files withhomemade napalm, and de Antonio had raised money for their legal defense andapproached them to be in his anti-Vietnam war documentary In the Year of the Pig(1968).

De Antonio’s initial plan had been to make a short documentary of the trial, but when he petitioned the Pennsylvania courts to allow his camera in thecourtroom, they denied his request. Unwilling to give up on the film, however, deAntonio condensed the 1,100-page trial transcript into a 70-page shooting-script,constructed a barebones set in the basement of St. Peter’s Episcopal Church on W.

Kristen Fuhs 63

20th Street in Manhattan, and invited the Plowshares defendants to reenact selectivemoments from their trial on video. Actors were hired to play the other roles, and anarrative framework was devised that would allow the Eight to foreground thejustification of their actions.

De Antonio began shooting the film in July of 1982, four days before theEight were to appear back in the Pennsylvania courtroom for their sentencing. Theshoot was fast, cheap, and dirty. With only enough time for one rehearsal before thefinal take, the actors were oftentimes forced to improvise while the Eight mostlyread from their scripts on camera. The performances are awkward and stagy; the setonly vaguely resembles an actual courtroom. Although criticized at the time for itslow-budget, on-the-fly aesthetic, de Antonio has since suggested that the form andthe aesthetic were in fact compatible with the politics of the situation. “Pretty is commercial and deadly,” he said. “Pretty films are anodynes, manufactured antireality” (Kellner and Streible 124).

The connection between reenactment, de Antonio’s rough aesthetic, and thefilm’s politics becomes clear from the outset.After the film’s opening credit sequence, a title card appears that keys us into the film’s goals for historical and cultural intervention:

The Judge decided that the defendants or their lawyers could speak.Not both. The defendants spoke for themselves.

De Antonio then thrusts us into the courtroom where a judge (played here byMartin Sheen) instructs the prosecuting attorney (George Tynan) to call his firstwitness.11 Richard Moravec (John Randolph Jones), the Captain of Security atGeneral Electric, outlines the events that unfolded during the course of the break-in.As in the original trial, Moravec’s testimony is damning for the Eight: it provesthatthey performed the actions for which they are being prosecuted, and offers littleroom for them to counter the charges that have been levied against them. And,notably, when it comes time for their cross-examination, they do not even try. Asthe opening title card informed us, the Eight are speaking for themselves in thisre-enacted trial. While the roles of the judge, prosecuting attorney, and witnesses

11 According to Randolph Lewis, de Antonio met Martin Sheen following the completion ofUnderground, when the actor signed a petition against the FBI’s attempts to coerce de Antonio toreveal the location of the members of the Weather Underground who were then fugitives. Yearslater, when de Antonio asked Sheen to become involved in In the King of Prussia, Sheen agreedto work without a fee and, in fact, donated $5,000 to the production. See Lewis 218.


are all being performed by actors, the Eight are playing themselves and are acting astheir own attorneys in this courtroom. They question the witness on his knowledgeabout the plant’s manufacturing: shouldn’t he know what heis guarding? Doesn’t the potentially catastrophic nature of the products produced at the GE plant matterto him?

Figure 1. Father Daniel Berrigan, Martin Sheen, and Scott Robbe, In the King of Prussia (Emile deAntonio, 1983).

This opening exchange telegraphs the film’s ideological position: for the Eight (and for de Antonio), this filmed trial is about persuading an audience (andthereby, hopefully, a larger public) that there are moral and ethical absolutes thatsupersede legal doctrine. And yet, this opening exchange also reveals how firmly Inthe King of Prussia’s critique of the legal system is entrenched in the trial genre. The film relies on language and codes of performance we associate with theAmerican trial film: a judge holds court, lawyers scream objection, a jury sits andlistens to the facts of the case. However, while de Antonio even called the movie “a trial film, basically,” it is immediately apparent from this opening exchange thatthis will be a film that also questions these basic codes of courtroom narrative andperformance. The active involvement of the Eight in the trying of the case elevates

Kristen Fuhs 65

the stakes of the trial’s representation, and as a result the film plays with ourfamiliarity of filmed courtroom procedure in order to shift the site of agency in thenarrative, from the “state’s” actors to the “real” actors in the filmed courtroom space.

As a method for shifting the site of agency, participatory reenactment in thefilm becomes a vehicle of socio-political resistance for the Plowshares Eight. Thisis exemplified in a subsequent scene in which Officer Jay Bolling (Scott Robbe)testifies about a conversation he overheard as he transported the Eight to jail.Officer Bolling explains that he heard Father Kabat tell another man: “We got some of those nose cones. We got ‘em good.” At this point, the judge halts the prosecutor’s questions and asks Father Kabat if heis“aware of what this statement means in front of a jury.” Father Kabat ignores the implicit warning in the judge’s question and proceeds with what amounts to a confession of his crimes. Heplayfully, yet matter-of-factly, replies: “It means the fact that we got those warheads good, yes.”

Although we see Father Kabat confess to a crime here, his performance andthe staging of the scene actively work to disavow his guilt. There is a disconnectbetween the judge’s admonitions and the way in which the confession is played for the audience. The judge asks Father Kabat if he is aware of what his statementmeans in front of a jury, whether he is aware of what Officer Bolling’s testimony proves. But rather than concede to the parameters of that question, Father Kabatflouts the legal system’s moral authority by confessing to the actions himself. Indoing so, Father Kabat reinforces the film’s ideological position that the court is ill-equipped to produce a compelling and just “truth” out of the abstract “facts” and “evidence” that are being presented at this trial. This scene is indicative of the wayin which In the King of Prussia utilizes the structure and the tropes of the Americantrial to completely disavow the trial’s (and, by extension, the American justicesystem’s) legitimacy and ability to render a fair verdict in this case. Father Kabatmay be confessing to a criminal action, but he is certainly not admitting any guiltfor his behavior.

Peter Brooks has argued that the motivations that trigger confessionalmoments are crucial to our understanding of the conditions and contexts ofconfession as a practice. He argues that “Western culture, most strikingly since theRomantic era to our day, has made confessional speech a prime mark ofauthenticity, par excellence the kind of speech in which the individual authenticateshis inner truth” (Troubling Confessions4). In this scene, Father Kabat’s confession does seem to operate as a marker of authenticity—he’s admitting to denting the


missiles and revealing a certain pride in his actions. But I would argue that hisconfession is ultimately more about shaping an outward narrative than revealing aninner truth. Father Kabat flouts the authority of the legal system and claims a highermoral authority through the performance of his confession. In this sense, FatherKabat’s confession becomes a savvy act of political resistance, signaling to the audience that he holds little stock in the judgments of the court but instead wouldrather open up his actions to the scrutiny of an engaged populace.

This connection to a larger public is possible because the impressionable jurythat the judge warns Father Kabat about is not just comprised of the one representedon screen, but is also made up of the film’s larger viewing audience. In the early nineteenth century, when French historian and political theorist Alexis deTocqueville travelled to the United States and recorded his observations on thestrengths and weaknesses of its democratic institutions, he developed a particularadmiration for the American jury system’s function as a political body that empowered the people to participate more fully in the governing of their society.The “institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority,” he argued, and “consequently invests the people. . .with the direction of society” (287). Juries, he observed, were not only fact finders but also the repositories of community values.

By presenting cases organized around particular points of view,documentaries about legal trials ask their viewing audience to be similarly engagedin the social and political issues being presented on screen. Carol Clover has arguedthat what is distinct about the trial movie is that it “positions us not as passive spectators, but as active ones, viewers with a job to do” (257). The jury, often conspicuously absent from the screen, creates a necessary blank space into whichthe viewing audience can project their own judgments and beliefs. Father Kabat’s performed confession, then, becomes a plea for audience engagement anddeliberation. The film asks the audience-jury to consider not whether Kabat’s actions constitute a broken law, but whether or not the law itself is just in thesecircumstances. The Eight broke into the King of Prussia plant because they believedthat the threat of nuclear proliferation posed an imminent harm, and Kabat’s speech reminds the audience-jury that if they are to maintain an investment in “the direction of society” and the “values of their community,” then they must lookbeyond the strict legality of the Eight’s actions.

Father Kabat’s confessional speech is a contemplative moment in the film’s narrative—one played as much for its ironic effect as for its political message. It isthe following courtroom scene, however, in which fellow Plowshare Molly Rush

Kristen Fuhs 67

begins to present the “defense’s” case, that provides the film’s sharpest critique of the legal system. The Eight’s defense relies primarily on two concepts: intent and justification. Rush suggests that while their actions may have been criminal, theirintent was just; they “knowingly, willfully and consciously acted” but did so “in order to protect and to save the life of the human family” from the threat of nuclear weapons. It is their humanist intent that justifies their criminal actions.

And yet, when Rush begins to testify about what a “justification defense” might mean in their case, the prosecutor objects because she is not a legal expertand “she’s getting into the law.” When Martin Sheen’s judge sustains this objection,her co-defendant, Father Daniel Berrigan, is outraged. “She’s not a legal expert, she’s a human being,” he cries. “She’s being forbidden a human language.” For Berrigan, this exchange is evidence of how the law does not work for the people. Itis not designed to protect individual human rights, but instead works to protectcorporate and governmental ones.

In scenes such as these, In the King of Prussia’s purpose seems clear—it is avehicle that gives voice to the message that the Eight’s original trial would not letthem communicate. These scenes show how reenacted courtroom speech functions,on the one hand, to aid in the construction of a show-trial in which all of thePlowshares Eight are given the space to display the political and moral positionsthat they were barred from presenting in court. But these reenactments are also asharp indictment of the legal system. They are enacted and embodied evidence ofhow the court is sometimes incapable of reconciling complex humanistic and moralissues within the letter of the law. Participatory reenactments in this film allow theEight to place their bodies in an alternative legal narrative; it grants them a new“public trial” (we might even argue amore public trial: though the film had a verylimited domestic theatrical release, it received some recognition abroad—it wasbroadcast on European television and won awards at film festivals in Locarno andBerlin) in which the primacy of their voices offers a clear justification for theiractions.

All this is not to say that the film does not have its flaws. While de Antoniodefended the film’s aesthetic as being in line with the trial’s politics, its roughness often gets in the way of its message. Because the Eight are non-actors reading their(mostly unrehearsed) testimony from scripts, their performances sometimes lackconviction. While moments of authenticity do emerge, just as often the Eight comeoff as naïve and childish in their attitudes toward the legal system. As a criticalreviewer wrote of the film in the American Bar Association Journal, “those who choose property destruction over public demonstrations purely to publicize their


views at trial must be prepared, as Ghandi and Martin Luther King were, to go tojail. Berrigan’s [and, by extension, the Eight’s] view that he can make his own law also is the view of the lynch mob and the assassin” (Kellner and Streible 325).

Additionally, the film’s structure contributes to some moments of ontological confusion. In the film, participatory reenactment allows the Eight to actively engagewith the history of their case as well as position themselves in an alternative legalframework. However, the film is not as successful at using the structure of the trialfilm to try to expose the inadequacies of the legal trial as a forum for justice. MartinSheen’s judge, as arbiter of the limits of the law exercised in the courtroom, actually seems to at times replicate the limitations the original trial imposed. Inreplicating the structural bounds of the original trial, de Antonio both argues thatthe system is broken and relies on its codes to make an argument about justice inthe Plowshares’ case.

Despite these limitations, however, the film does at times successfully exposethe limits of state-sponsored legal justice.12 Participatory reenactments in In theKing of Prussia work to subvert the court’s privileged position as the definitive shaper of objective truth. While these reenactments may not be indexically linked tothe moment they represent, they allow the Eight to return to the scene of the crime,so to speak. Their bodies may be temporally dislocated in relation to the officiallegal narrative, but their reenactments allow them to re-assert a sense of agency intheir testimonies and thus control over the shape of their own legal narratives.Confession becomes not an admission of guilt but a performative denial of thestructural limitations of the American criminal justice system.

Strange Culture: Hyper-realities and Performativities

In 2004, nearly fifteen years after the Plowshares Eight broke into the King ofPrussia plant, artist and University of Buffalo professor Steve Kurtz awoke todiscover that his wife of twenty-seven years, Hope, had died of heart failure in hersleep. When the police responded to Kurtz’s distressed 911 call, they became suspicious of assorted scientific equipment and biological material they found in his

12 In the King of Prussia is also responsible for at least one documented act of civildisobedience. Daniel Berrigan, Martin Sheen, and de Antonio attended the film’s premiere screening in Minneapolis on November 3, 1982 and attended a demonstration the following day.Kellner and Streible report that an estimated 1,500 people are said to have seen the film inMinneapolis, and in the days that followed its release, more than 600 people were arrested inanti-nuclear demonstrations. For more on the public’s reception of the film and the acts it is said to have inspired, see also Lewis 224.

Kristen Fuhs 69

house—material that he was using for an art exhibition on genetically modifiedfood that he was soon to be staging at the Massachusetts Museum of ContemporaryArt (MASS MoCA). Steeped in a post-9/11 mentality (and further influenced by thediscovery of a sheet of paper with Arabic writing on it), the police called the FBI,and Kurtz was soon arrested on suspicion of murder and perceived acts ofbioterrorism. Kurtz was detained for twenty-two hours as agents from the FBI, JointTerrorism Task Force, Homeland Security, Department of Defense, and ATF joinedlocal authorities in searching his house and then seizing his computer, labequipment, art projects, and research material. After a federal grand jury refused toreturn an indictment for bioterrorism, Kurtz and his collaborator, a geneticsprofessor at the University of Pittsburgh, were instead charged with federal mailand wire fraud stemming from the interstate sale and transport of live bacteriacultures, charges that under the Patriot Act carried a potential sentence of up totwenty years in prison.13

Independent filmmaker and video artist Lynn Hershman Leeson embarked onthe production of the documentary feature Strange Culture (2007) before Kurtz’s trial date had been set, and as a result the project is as much about rallying attentionto Kurtz’s case as it is about the political conflict between national security and freedom of expression in a post-9/11 era. With his trial still on the horizon, Kurtzwas prohibited from speaking publicly about the events leading up to his arrest. Toget around this, Leeson cast actors, including Tilda Swinton and Thomas Jay Ryan(best known for playing the title character in indie-darling Hal Hartley’s HenryFool), to reenact these events. The film then uses a variety oftechniques—interviews, news clips, animation, reenactment—to represent a casethat many saw as a critical example of the Bush government’s abuse of national security policy to silence those who were critical of its policies and justify theheightened rhetoric about enemies at home and abroad.

Strange Culture’s multi-modal, docu-hybrid style sets it apart from otherjuridical documentaries, as does its reflexive, postmodern play with themes ofperformance and identity. But, like In the King of Prussia, Strange Culture wearsits liberal politics on its sleeve; trying to shed light on the murky connectionsbetween national security politics and judicial policy in the post-9/11 era, the film isa clear indictment of Bush-era justice policies. Just as In the King of Prussiaconfronted the controversial politics of nuclear disarmament in the late cold war era,Strange Culture takes on the curbs to individual, academic, and artistic freedoms

13 For more on the background of Kurtz’s case, see the Critical Art Ensemble Defense Fund website at <http://www.caedefensefund.org/overview.html>.


that arose in the United States in the wake of September 11th. Unlike In the King ofPrussia though, Strange Culture does not use participatory reenactment tochallenge a rendered legal verdict or criticize the American justice system’s intermittent moral blind spots. Rather, Strange Culture’s use ofparticipatoryreenactments to reconstruct the circumstances that led to Kurtz’s arrest is not only a savvy strategy for overcoming legal limitations on public speech, but also apreemptive strike against the very possibility of a trial and a direct intervention intothe government’s pursuit of its case.

Towards the end of the film, Steve Kurtz and his performative avatar, ThomasJay Ryan (dressed alike in faded jeans and black T-shirts but, in this moment, eachplaying themselves), appear on-screen together, and joke about the counter-intuitivetiming of this movie, filmed as it was before the “good stuff” (i.e., the trial) haseven happened. The trial is where you get the “real law and order drama,” Kurtz and Ryan joke; waiting until his case had been resolved would have clearly been“the comfortable way to package this as a movie experience.” But, while delaying the film until the trial might have produced a “neat morality tale” about “how evil is punished” and how the justice system eventually comes out on the side of right, both Kurtz and Ryan (and accordingly, the film as a whole) seem to agree that anexploration into the murky politics surrounding Kurtz’s arrest makes for a muchmore compelling project. Filming Kurtz’s saga in medias res allows thedocumentary to be positioned as an intervention into the case’s ongoing development rather than merely a retrospective reaction to its negative outcome.

As in In the King of Prussia, Strange Culture opens with a disclaimer aboutcensored speech—“Steve Kurtz is unable to comment on events that occurred immediately prior to his arrest. Actors have interpreted his story.” This, then, is immediately followed by a brief shot of the film’s assistant cameraperson marking a slate in front of a shot of Hope (Swinton) and Steve (Ryan) prepping for the comingscene. With this shot, Leeson emphasizes the reflexive properties of thisdocumentary and introduces performance as both a discrete act and a theme in thisstory. Although Ryan and Swinton are charged with “interpreting” the events that led up to Kurtz’s arrest, the performance of “Steve Kurtz” in this film is not such a simple presentation because the real Steve Kurtz is not entirely absent from thescreen. In fact, he appears quite a bit in the film, saying what he is allowed to sayunder the limitations of his gag order.

Ryan reenacts the events in Kurtz’s life that preceded his arrest—preparationsfor the forthcoming exhibit at MASS MoCA, a class discussion on the socialconstruction of identity, the FBI’s initial interrogation after Hope’s death. But it is

Kristen Fuhs 71

the performative interaction between Kurtz and Ryan that opens up a space forresistance in Strange Culture. Kurtz and Ryan’s appearances on-screen, bothseparately and together, representing the same body, makes the illusion of thereenactment in this film visible, as an illusion. Unlike directors who strive forverisimilitude in their reenacted images, Leeson is not trying to make Ryan’s performance disappear. On the contrary, it’s important that we recognize that he both is and is not Kurtz because it draws attention to the limitations that have beenimposed upon Kurtz by the law and the state. Because he is prohibited fromcommenting on certain events with his trial still on the horizon, Kurtz must rely onothers to speak and act for him. And in his role as Kurtz, Ryan becomes the centralperforming figure for an amalgamation of voices (Kurtz’s, his own, the filmmaker’s, etc.). Ryan’s performance of Kurtz reasserts the necessity for a collaborative effort when preparing to battle larger state forces. It is a reminder of what it means to becaught up in power, and it reveals how—through documentary reenactment—onemight begin to try to resist that power.

Coincidentally, these themes of performance and resistance have also beencentral to Steve Kurtz’s own art practice; both he and his wife had been founding members of the Critical Art Ensemble (CAE), a collective of artist/activists focusedon “the intersections between art, critical theory, technology, and political activism” (Critical Art Ensemble). The CAE are “tactical media practitioners” who produce art that is interactive, contestational and charged with making direct socio-politicalinterventions. Much of their work has been concerned with demystifying theconnection between art, industry, and biotechnology, and they have explored thesethemes through works that have interrogated and exposed the politics of, amongother topics, the human genome project, genetic screening, and genetically modifiedfood. Since 2006, however (and likely in response to Kurtz’s legal predicament), the CAE’s work has predominantly been concerned with critiquing U.S. defense policy.

The CAE’s art tends to be performative in nature; they use interactive models to inspire a sense of participatory democracy and invite the public to take ahands-on approach to learning about science and its industrial applications. Forexample, in Free Range Grain (2003-04), the CAE invited the public to bringfood—especially food labeled organic or GM-free—to be tested for commongenetic modifications in the portable lab they had set up in their performance space.In GenTerra (2001-03), the CAE recast themselves as a biotech corporation taskedwith balancing profits and social responsibility. Audience members were invited to


grow their own transgenic bacteria samples and weigh the pros and cons ofreleasing them into the environment.14

Since much of the CAE’s art practice has been interactive in nature, the use of participatory reenactments in Strange Culture would seem to be particularlyappropriate, attuned as they are to Kurtz’s own artistic philosophy. Reflecting the group’s own formal and political strategies, participatory reenactments in the filmallow Steve Kurtz to publicly and collaboratively communicate the facts of his casewhile influencing the narrative construction of his own public identity. The film’s self-conscious engagement with this mutable construction of identity challenges thegovernment’s attempts to redefine Kurtz from artist/activist/professor to deviant/criminal/terrorist—a theme that Leeson makes explicit roughly thirtyminutes into the film. With the real Steve Kurtz talking in voice over, Ryan appearson screen. Dressed in a black T-shirt and framed in silhouette against a darkbackground, Ryan gives an understated physical presence to Kurtz’s disembodied voice. “By the time it got to the Department of Justice,” Kurtz says, “there’s not even any doubt any longer that they are trying to manufacture a crime and they aretrying to construct me completely as something that I wasn’t.” Here, the film cuts to a still image of Ryan, labeled as “Steve Kurtz, Artist” (Figure 2) while Kurtzcontinues to explain how the DOJ “definitely constructed another identity” for him in order to “manufacture a crime” that they could then prosecute. In acknowledgment of the potential for this “other identity,” the film then cuts to a still image of Kurtz, framed just as Ryan had been and labeled likewise as “Steve Kurtz, Artist” (Figure 3) in order to truly emphasize the flexibility, or as Kurtz argues, the “hyper-reality,” of his various constructed identities. As Kurtz explains,

There’s my courtroom hyper-reality . . . there’s a few in the courtroom floating around—you know, there’s [defense attorney] Cambria’s version, there’s my version, there’s the Department of Justice version—there’s my movie hyper-reality, and I don’t think any of them are really me. These are all performativities for the jury,for the big wild west show that’s coming up.

14 For more on GenTerraand the CAE’s performance of science, see Triscott.

Kristen Fuhs 73

Figure 2. Steve Kurtz (Jay Ryan).

Figure 3. Steve Kurtz (Steve Kurtz).

With this speech, Kurtz displays a self-conscious awareness of theperformative nature of both the documentary and the legal case in which he hasfound himself embroiled. On the one hand, he seems to be acknowledging his lackof control over these different identities, these multiple performativities. But thisscene also draws our attention to the controversies surrounding authenticity andperformance in documentary representation, and in doing so it tries to undercut theseparation we might try to make between the two. Kurtz speaks to the various“hyper-realities” that stand in for the multiple and divergent points of viewsurrounding his case. But as he says, these are all just performativities for the


jury—illustrations of the complexities of narrative agency. By self-consciouslydrawing attention to the doubled (or tripled, or quadrupled) nature of hisrepresentation, the reenactments in Strange Culture preclude a fixed objectivereading of the case. The multiplicity of performed narratives (and representations)generated by the film open up a space of resistance for Kurtz, which allows him topublicly and collaboratively perform his innocence, something the state had, up tothat point, prohibited him from doing in more official, legal channels.

In a way then, we might also begin to read Strange Culture’s reenactments as para-judicial pre-enactments of Kurtz’s defense against the charges that have been levied against him.15 By dramatizing the circumstances of Hope’s death, countering the government’s over-hyped charges, and contextualizing Kurtz’s arrest as an attack on the freedom of critical art practice rather than a response to terrorist action,Strange Culture takes control of Kurtz’s pre-trial legal narrative and sets theconditions for its social and cultural relevance. These (p)reenactments becomeconditional trial arguments, a way to test the case in the court of public opinion anddeliver a preemptive strike against the very possibility of an eventual trial.

In 2007, Strange Culture travelled the festival circuit, appearing at Sundance,the Berlinale, and Human Rights Watch International, among others. The film alsohad a limited theatrical run before it was broadcast on the Sundance Channel inDecember and then released on DVD three months later. In 2008, after the film’s release, Federal Judge Richard J. Arcara dismissed the indictment against Kurtz as“insufficient on its face,” meaning that even if the government’s charges were true, Kurtz’s actions would not have constituted a criminal act.16 This ruling seems toaffirm the film’s position that the government’s case against Kurtzwas nothingmore than an elaborate act of political theater. By representing this belief through acombination of reenactments and reflexive performances, Strange Culture allowsKurtz to assert his innocence while at the same time critiquing the state apparatusthat has made this assertion necessary. In the end, the collaborative performance of“Steve Kurtz” through participatory reenactment helps Kurtz resist the legal and governmental frameworks being used to limit his speech and constrict his freedom,thereby challenging the state’s attempt to control the image of Kurtz’s public identity.

15 My thoughts on pre-enactment were influenced by Alisa Lebow’s “Pre-Enactment in theHypothetical Documentary,” a paper she delivered at the Visible Evidence conference, Lincoln UK, August 4-8, 2008.

16 See United States District Court Western District of New York v. Steven Kurtz (April 21,2008). See also the CAE Defense Fund’s press release, “Artist Cleared of All Charges in Precedent-Setting Case,” <http://www.caedefensefund.org/releases/cleared_6_11_08.html>.

Kristen Fuhs 75

Conclusion

In a 2009 interview, Father Daniel Berrigan observed that “the law of the land is not ‘one’ with justice and can very easily be its mortal opponent. The onlyabsolute is justice, not the law.”17 A continuation of the beliefs he espoused in Inthe King of Prussia, Berrigan’s words speak to the ideological positions of both de Antonio’s and Leeson’s films. In the King of Prussia and Strange Culture are bothprojects that set out to recover justice in situations where the law has failed toproduce it. Both films highlight ways in which subjects who are caught up in thedisciplinary power of the law must use alternative means in order to reassert theirown subjectivity and reclaim a sense of agency over their own representations.Documentary becomes a space for these men and women, criminalized for theirpolitical beliefs and activist behavior, to challenge law’s power and reconstitute themselves as social subjects.

Participatory reenactments are the vehicles through which these subjects areable to reassert control over the shape of their own legal narratives. In the King ofPrussia and Strange Culture use participatory reenactment to make visual acounter-narrative that challenges official legal record. Reenactment allows thefilms’ subjects to present their stories free from the limits of legal procedure and government intervention. In both films, reenactment and collaborative performancefunction to subvert the court’s privileged position as the definitive shaper of political discourse, legal certainty, and objective truth.18

Both In the King of Prussia and Strange Culture represent performance as anovertly political act. In In the King of Prussia, Daniel Berrigan testifies that he“could not not do what [he] did.” His conscience compelled him to expose the nuclear proclivities of the King of Prussia plant. Likewise, Kurtz and the CAE’s art instillations offer more than just an aesthetic or an informative experience—theyask audience members to participate and, in doing so, to take responsibility for theshape of their world. But these films also structure performance to be both

17 Berrigan is speaking here in reference to the evolution of activist/attorney WilliamKunstler’s political beliefs in William Kunstler: Disturbing the Universe (Emily and SarahKunstler, 2009).

18 This article focuses specifically on participatory reenactments in the U.S. legal context, butthe phenomenon is not uniquely American—the importance of reenactment to the juridicaldocumentary is certainly something that crosses national borders. For example, the Iraniandocumentary Close-Up (Abbas Kiarostami, 1990) and the Romanian film The Great CommunistBank Robbery (Alexandru Solomon, 2004) reflect the growing body of juridical documentariesthat use reenactment to explore legal justice outside of the Anglo-American context.


reflective and reflexive. Reenactment becomes a performative politics of resistanceas Berrigan and Father Kabat replay their original courtroom speech in order tohighlight the law’s inability to produce a compelling and just truth out of the abstract facts and evidence that were presented at the original trial. It provides anavenue for Steve Kurtz to defy the state’s attempts to limit his artistic freedoms and his rights of self-expression.

Participatory reenactment, then, has an emancipatory quality that I wouldsuggest becomes particularly pronounced in situations where the performance ismanifested as a challenge to legal authority. Participating in a filmed reenactment ofan alleged crime or criminal trial can allow for the generation of newrepresentations that have the potential to eclipse formerly dominant ones.Extra-legal performances of (and challenges to) law’s moral authority can shift the conversation. Instead of focusing on the specifics of these “illegal” acts, weareforced to reflect on the nature of partisan political power, the law’s moral authority, and our own responsibility for the maintenance of a democratic and just society.

Works CitedAustin, J. L. How to Do Things with Words. Cambridge, MA: Harvard UP, 1978.Blackson, Robert. “Once More. . . With Feeling: Reenactment in ContemporaryArt and Culture.” Art Journal 66.1 (2007): 28-40.

Brook, Peter. The Empty Space. New York: Simon & Schuster, 1996.Brooks, Peter. “The Future of Confession.” Law, Culture & the Humanities 1

(2005): 53-74.—. Troubling Confessions: Speaking Guilt in Law and Literature. Chicago: U of

Chicago P, 2000.Bruzzi, Stella. New Documentary. 2nd ed. New York: Routledge, 2006.Bryan-Wilson, Julia. “Remembering Yoko Ono’s Cut Piece.” Oxford Art Journal

26.1 (2003): 99-123.Butler, Judith. Bodies That Matter. New York: Routledge, 1993.Clover, Carol. “God Bless Juries!” Refiguring American Film Genres. Ed. Nick

Browne. Berkeley: U of California P, 1998. 255-77.Critical Art Ensemble. Critical Art Ensemble, n.d. 10 Mar. 2011.

<http://www.critical-art.net/home.html>.de Lauretis, Teresa. Alice Doesn’t:Feminism, Semiotics, Cinema. Bloomington:

Indiana UP, 1984.

Kristen Fuhs 77

de Tocqueville, Alexis, and Henry Reeve. Democracy in America, Volume One.New York: Colonial Press, 1899.

Erickson, Ruth. “The Real Movie: Reenactment, Spectacle, and Recovery in Pierre Huyghe’sThe Third Memory.” Framework 50.1-2 (2009): 107-24.

Foucault, Michel. The History of Sexuality: An Introduction, Volume 1. Trans.Robert Hurley. New York: Vintage, 1990.

Fuhs, Kristen. “The Whole Truth and Nothing But the Truth: Documentary Film and the Socio-Politics of Justice.” Diss. Uof Southern California, 2011.

In the King of Prussia. Dir. Emile de Antonio. Turin Films, 1983.Kahana, Jonathan. “Re-staging Two Laws: An Interview with Alessandro Cavadiniand Carolyn Strachan.” Framework 50.1-2 (2009): 61-81.

—. “What Now? Presenting Reenactment.” Framework 50.1-2 (2009): 46-60.Kellner, Douglas, and Dan Streible, eds. Emile de Antonio: A Reader. Minneapolis:

U of Minnesota P, 2000.Lewis, Randolph. Emile de Antonio: Radical Filmmaker in Cold War America.

Madison: U of Wisconsin P, 2000.Margulies, Ivone. “Exemplary Bodies: Reenactment in Love in the City, Sons, and

Close Up.” Rites of Realism: Essays on Corporeal Cinema. Ed. IvoneMargulies. Durham, NC: Duke UP, 2003. 217-44.

Mnookin, Jennifer L., and Nancy West. “Theaters of Proof: Visual Evidence and the Law in Call Northside 777.” Yale Journal of Law and the Humanities 13.2(2001): 329-90.

Morris, Errol. “Play It Again, Sam (Re-enactments, Part One).” New York Times.New York Times, 3 Apr. 2008. 20 July 2009. <http://opinionator.blogs.nytimes.com/2008/04/03/play-it-again-sam-re-enactments-part-one>.

—. “Play It Again, Sam (Re-enactments, Part Two).” New York Times. New YorkTimes, 10 Apr. 2008. 20 July 2009. <http://opinionator.blogs.nytimes.com/2008/04/10/play-it- again-sam-re-enactments-part-two>.

Nichols, Bill. Blurred Boundaries: Questions of Meaning in Contemporary Culture.Bloomington: Indiana UP, 1994.

—. “Documentary Reenactment and the Fantasmatic Subject.” Critical Inquiry 35.1(2008): 72-89.

—. Introduction to Documentary. 1st ed. Bloomington: Indiana UP, 2001.Parker, Andrew, and Eve Kosofsky Sedgwick, eds. Performativity and Performance.

New York: Routledge, 1995.People v. Dabb. 32 Cal. 2d 491; 197 P.2d 1; 1948 Cal. LEXIS 242. LexisNexis

Academic. Web. 10 Feb. 2012.


Peters, Julie Stone. “Legal Performance Good and Bad.” Law, Culture and theHumanities 4 (2008): 179-200.

Renov, Michael. The Subject of Documentary. Minneapolis: U of Minnesota P,2004.

Schechner, Richard. Between Theater and Anthropology. Philadelphia: U ofPennsylvania P, 1985.

Seltzer, Mark. True Crime: Observations on Violence and Modernity. New York:Routledge, 2007.

Strange Culture. Dir. Lynn Hershman Leeson. Docurama Films, 2008.Triscott, Nicola. “Performative Science in an Age of Specialization: The Case ofCritical Art Ensemble.” Interfaces of Performance. Ed. MariaChatzichristodoulou, Janis Jefferies, and Rachel Zerihan. Surrey: Ashgate,2009. 153-66.

About the AuthorKristen Fuhs received her Ph.D. from the School of Cinematic Arts at the University ofSouthern California in 2011. Her dissertation, “The Whole Truth and Nothing But the Truth: Documentary Film and the Socio-Politics of Justice,” examines the juridical documentary’s influence on social and cultural conceptions of the law. She is a lecturer in film andtelevision at California State University, Fullerton and Woodbury University, and her workappears in the anthology Representations of Murderous Women in Literature, Theatre, Film,and Television.

[Received 10 August 2011; accepted 15 December 2011]

Documents

Re-imagining the Nonfiction Criminal Narrative ... Crime/4.pdf · Re-imagining the Nonfiction Criminal Narrative: Documentary Reenactment as Political Agency Kristen Fuhs School of