On Death Row

On Death Row debuts tonight on Investigation Discovery at 10 p.m. Eastern.

Like David Lynch, Werner Herzog has become a hipster icon, and for much the same reasons. They’ve each created a staggering body of work, each of them has remained committed to a unique and compelling vision, and both of them are perceived as towering weirdos. Not just because of their films, either; Lynch and Herzog have both logged a lot of time in front of the camera by now, and in the process, they’ve given dorm-room impressionists the world over a lot to work with. Herzog’s self-parodying comic turns as an actor in other people’s movies have provided welcome evidence that he understands how he comes across, which gives one hope that the audience is laughing with him, not at him, when (for instance) his voiceover in Encounters At The End Of The World announces, “Zis is an inzane penguin.” 

Herzog is offscreen in the four-part documentary series On Death Row, though we can hear his voice throughout the show as he directs questions at the people we’re watching. The series consists mostly of interviews with death-row inmates and people—lawyers, family members, co-defendants, reporters—with a connection to their cases, and the technique underlines what a special thing it is to have a chance to examine the faces of strangers as they’re asked direct questions about life-or-death matters that they may not be inclined to discuss with total candor. It’s not a chance that Herzog wants to spoil by distracting us with his own presence and the promise of madcap eccentricity that comes with it.

The series is part of the same project that yielded Herzog’s recent feature documentary, Into The Abyss. (Michael Perry, the boyish convict featured in that movie, can be briefly glimpsed at the beginning of the third episode, which centers on George Rivas and another member of the group of prison escapees known as the Texas Seven. Like Perry, Rivas has been executed since his interview was filmed.) As Scott Tobias noted when he reviewed Into The Abyss last November, Herzog’s film doesn’t attack the death penalty on the grounds that it’s wrongly administered or by picking cases apart to show that there are innocent people sitting in cells waiting to be executed. You sense that Herzog would see that argument as a cop-out, since it relies on the underlying assumption that executing people would be just dandy so long as the process could be perfected so that no one would ever again have to be troubled by news that it’s happened to someone who didn’t have it coming to him. Herzog lays his cards on the tables at the start of each episode, telling us that “as a German, coming from a different historical background and being a guest in the United States, I respectfully disagree with the practice of capital punishment.” 

That carefully worded statement establishes the tone Herzog uses for most of his conversations here. He isn’t using the subject to proselytize, and he wouldn’t dream of judging anyone, whether he’s talking with convicted killers or the people who worked to get them sentenced to lethal injections. He begins the interview with James Barnes, who’s featured in tonight’s première episode, by telling him that “sympathizing with your quest to have prosecutorial injustices in your case corrected does not necessarily mean that I have to like you.” Similarly, he kicks things off with Hank Skinner, the man at the center of the final episode and the one most adamant about his innocence, by saying that he wants it understood that this is not going to be his The Thin Blue Line

The one time Herzog gets audibly pissy with someone comes when one of the prosecutors who worked to convict Linda Carty—whose case has been more publicized overseas than here, because Carty is a British citizen—delivers an endless speech expressing her concern that, if he attempts to “humanize” her, everyone will forget who “the real victim” is. The language she uses is utterly dead—it’s the kind of speech that any prosecutor or victims’-rights advocate can roll out on cue if you point a camera at them and put a quarter in their slot—but Herzog allows her to go on and on, as if he wanted to be sure that she had the chance to get as far up the viewer’s nose as she plainly gets up his. When she finally stops flapping her gums, he grunts, “I do not attempt to humanize her. She is a human being, period.” The woman’s ability to switch over to auto-pilot and talk like a press release—which she probably sees as proof her precious objectivity—is a horrifying quality in someone whose job is to get to the truth and administer justice. This is as personal a documentary as any of Herzog’s others, but what makes it personal is the quality and depth of its curiosity about people.

Part of what Herzog says he’s curious about is how differently people live when they know the exact day and time they’re scheduled to die, knowledge that is denied most of us who aren’t either death-row inmates or followers of Harold Camping. What he doesn’t say explicitly, but what comes through loud and clear, is that some people who wind up on death row are, as Fitzgerald said of the rich, different from you and me. As to how different, and different in what degree, your mileage may vary: George Rivas, a composed, sad-faced man with the voice of a successful disc jockey, comes across as someone who made mistakes that sent his life so far off track that he’s ready to get his ticket punched. (Every member of the Texas Seven received a death sentence because one of them shot a cop while they were on the lam. By the time Rivas was sentenced to die, he was already carrying more than 30 consecutive life sentences, including 13 for aggravated kidnaping—one sentence for each guard the cons tied up in the course of making their escape.)

The most richly unnerving of Herzog’s subjects is James Barnes, who is soft-spoken, articulate, and politely friendly in a weirdly creepy way that actors playing serial killers never have the guts to try for. (When Herzog presents him with words of love from the father Barnes hasn’t spoken to in ages, the surprised Barnes looks as if he’s racing through his mental folder of possible emotional reactions before deciding which button to push.) Barnes, who talks about enjoying the sounds of birds singing and rain hitting the roof and recalls that the last time he felt rain on his skin was in 2002, was convicted of murdering his ex-wife, a crime he denied having committed, though while serving his life sentence, he got religion and confessed to a different murder that landed him on death row. In his sessions with Herzog, Barnes alludes to even more murders that he might have committed, which Herzog sees as a possible tactic to get his execution date postponed if he can interest the police in enlisting him to clear open cases off their books. Barnes seems  capable of having more than two murders to his credit, and more than capable of playing mind games with them whether they’re his to claim or not. One of the cops who worked on his case says that Barnes ’ condition for confessing to one murder was that he wanted the victim’s ex-husband in the room, so that he’d have to listen to the details of the woman’s final moments and could share them with her children, a sweetheart move that the cop describes as “another violation” and “the ultimate power trip for him.” Barnes’ interview is balanced out with scenes of his twin sister, who describes a brother who, from an early age, seemed to be developing into a sociopath, as well as a home life that was precisely calibrated to steer him in that direction. Herzog also checks in with the lawyer handling Barnes’ appeals, who has no illusions about his client but insists on the importance of due process, saying that his experience in El Salvador in the 1980s showed him how a society that has no use for it “wears on the citizenry.” 

Investigation Discovery is broadcasting the episodes of On Death Row with introductions by Paula Zahn that might have been scripted by that prosecutor who’s so concerned about the dangers of humanizing convicted killers: Zahn tells us that “After sitting in on Herzog’s encounters, you will never think about the death penalty the same way again.” This is more pre-chewed talking-press-release bullshit. Everyone in this country has an opinion about the death penalty, and I doubt that the number of people who might possibly feel any differently about it because they saw a TV interview with a convicted murderer are large enough to be statistically measurable. People who are surest about the issue will likely find Herzog’s approach frustrating and even pointless, because he doesn’t even pretend to be serving up any answers. But he knows which questions should be ruffling our sense of complacency.

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