ARTIST, AUDIENCE, ACCOMPLICE

Beverly Hills Municipal Courthouse vs. Chris Burden 

On February 21, 1973, Chris Burden entered the Beverly Hills Municipal Courthouse—accompanied by his attorney—to face charges of causing a false emergency to be reported during the performative intervention known as Deadman. The prosecution, led by deputy district attorney Savitt, called for testimony by the two officers who had arrived at the scene of Burden’s piece three months prior. Based on the officers’ accounts, Savitt sought a guilty verdict due to what he saw as a conscious manipulation of events to cause alarm—which constituted an unlawful action in the court of law.

Despite the ongoing flirtation with illegality that runs throughout much of Burden’s performance work, Deadman was the only piece where an actual crime was charged and, as such, the one situation in which auxiliary agents could be indicted as legal accomplices to Burden. Considering the expanded circumstances of the trial as constitutive to the work, Deadman foregrounds the agency and accountability of Burden’s abettors, opening a relay of ethical and legal involvement moving beyond the conventional responsibility assumed by an audience. Suddenly, a variety of individuals who played an integral role in the work’s construction—such as friends, professional colleagues, and legal representatives—became discernible operatives whose participation resulted in potential complicity in its consequences.

In a 1974 interview with Liza Béar for Avalanche, Burden discussed the transformation of audience participation in his recent work, with Béar noting:

Everyone’s getting very conscious of what . . . some of the issues in performance are, right? And it seems to me that it’s gone way beyond being a display in front of an audience. And increasingly the audience is more prepared and is somehow implicated in the work. . . . No one can avoid being used somehow and used in a most intimate way, even though it’s imaginary. I’m just trying to get at some of the different ways in which audiences are part of the performance now.¹

By staging a situation in which auxiliary agents were coerced to act quickly in the face of potential legal incrimination because of their logistical support, aid, counsel, or defense of the artist, Burden presented a distinct scenario in which these individuals, previously unrecognized as participants in the artist’s work, became his abettors.

There are conflicting narratives regarding the initial interaction between members of the art world audience and the police during the evening of Deadman’s performance. For instance, according to Peter Plagens, who observed the piece firsthand while he was on assignment for the New York Times, both an unidentified critic and a curator had to jump to Burden’s defense as he was being arrested and led to the squad car. Plagens (in reportage-style shorthand) explained how they had to “step forward, tell deputy who they are, who artist is, what this is. Deputy says, everything considered, [he] cannot lie down in the middle of La Cienega Boulevard creating traffic hazard.”²

The limited art historical discussions of Deadman have largely situated the parameters of this project around the body of the artist as he lay in the street until the authorities arrived.³ These examinations overlook the events that occurred before and after the approximately fifteen-minute action, as well as the unacknowledged participation of various figures whose role and responsibility was crucial to the events that would unfold. As with Shoot (1971), Burden included documentation for Deadman that exceeded the events that occurred on the night of November 12, 1972; his description of the piece in the Deluxe Photo Book also notably includes mention of his arrest and subsequent trial.⁴ Moreover, to accompany his narrative, Burden incorporated four images—only one of which corresponds to the typical description of Deadman as ending with the arrival of the police in front of the Mizuno Gallery—which therefore serve as evidence of the expanded scope of the performance itself beyond its conventional parameters.

The first photograph is the most canonical, depicting the artist lying on the street under the tarpaulin, alongside a parked vehicle. Photographed by Gary Beydler, Burden’s head is located near the car’s tire and flanked by two flares that emit a white glow. As the image is framed, it is unclear whether the car has stopped unrelatedly or if it was the cause of the “crime scene” depicted. The second image—a photograph by Chuck Arnoldi—captures the moment of Burden’s arrest. Shot from behind, the handcuffed artist is directed into the awaiting police car as various bystanders look on. The third photograph by performance artist Barbara T. Smith depicts an anxious-looking Burden within the courthouse accompanied by his lawyer.

The fourth and final image is a courtroom drawing by Smith in which the artist is shown seated beside his lawyer as they face the judge during Burden’s trial. From her position seated behind the defendant in the audience, Smith illustrates those individuals present at the courthouse yet does not note their names in her drawing. Instead, she identifies them on the verso: six members of the jury, a court reporter, judge George Zucher, and two lawyers on either side of the artist—deputy D.A. Savitt and defense attorney James G. Butler. The inclusion of these multiple images for the documentation of Deadman offers further evidence that the scope of this performance expands beyond the events and participants present on the evening of Burden’s arrest.

Smith—who had photographed a few of Burden’s early performances—assumed the role of a public advocate for the artist in the press leading up to the artist’s three-day trial at the Beverly Hills Courthouse, for which she was present. In response to the substantial public criticism that Burden received, Smith went so far as to write a series of three separate articles defending his performance, which were published in Artweek over the following months.⁵ The first, “Art Piece Brings Arrest,” gives her preliminary account of the events comprising the Deadman performance. In it, Smith holds her fellow audience members accountable for the events that transpired, pointing out that “although many of the persons present hold positions of responsibility in the art community, no one effectively prevented the arrest or enlightened the officers.”⁶ Supporting this claim, in a 1972 letter to Smith, an unidentified sculptor named Michael describes the hypocrisy of the art world bystanders present at Deadman: “too bad about no one putting up money for his bail—but I’m not surprised at all—I think it’s neat that they were confronted with an opportunity to support someone and let it go. . . . It shows where their heads are.”⁷

The response to Smith’s article caused such a controversy that on February 10, 1973, the Artweek editors published a series of letters-to-the-editor that reproached Burden’s work and Smith’s defense of Deadman. The “Editor’s Mail Bag” included disgruntled notes that went as far as to compare the artist to Nazi Heinrich Himmler, as well as refusals to renew Artweek subscriptions on account of the inclusion of Burden’s performance and Smith’s response to the work. Enjoying the intense reader engagement, the publication invited Smith to present a counter-retort.

In her second written piece, Smith defended Burden’s innocence by shifting focus to the responsibility shared by those present at the performance when confronted with police intervention. Condemning the audience’s passive response, she states: “his piece became a vehicle for everyone else’s trip, to use as they saw fit and needed for their own self-esteem.”⁸ For example, one curator declared the work to be “the best piece done anywhere this year,” another “left to have a beer,” while an unnamed museum director “became the protective inquirer, phoning the police to determine exactly what was going to happen to Burden.”⁹ Furthermore, she points out in Burden’s defense that “he set the flares beside his body to protect himself, not to call false attention to a supposed accident and “play games” with the police. This was a formal art event. The persons there were invited, and the gallery knew what he was going to do.”¹⁰

Smith also points out a crucial feature of the audience’s response to the work: “the fact that after Burden had placed himself under the car and set the scene, and before the crowd came out of the gallery to see it, several persons walked by and saw the ‘accident’ but seemed neither curious nor alarmed.”¹¹ In Smith’s opinion, the blithe passivity of the viewers who observed his action engendered an ethical and legal dilemma in their abetment of the potential crime. Given that both the art world onlookers and unsuspecting pedestrians largely refrained from intervening in the work, their inaction perpetuated risks for both the living artist as well as the drivers swerving to avoid him.

Yet the unwitting participants’ general lack of involvement might be attributed to their disbelief in the circumstances, the assumption that someone else had already taken care of the matter, or simply general apathy when faced with a body lying in the street. After all, the tarp over Burden’s body suggested that he was not in critical need of medical care but rather was beyond the point of assistance. Once the police intervened, the responsibility of those present shifted to the legal defense and protection of Burden’s rights against the LAPD’s jurisdiction. The auxiliary participants’ reaction to the circumstances thus brought them into proximity with potential culpability as they knowingly or unknowingly left the site of the performance and Burden’s subsequent arrest.

The defense attorney called forth three witnesses to the stand at Burden’s trial: Helene Winer, Jane Livingston, and Riko Mizuno. According to Plagens, gallery owner Mizuno had been in charge of directing the art audience to leave the gallery space and move into the street in order to view Deadman.¹² Given the legal definition of accomplice liability, which implicates those who induce the commission of a criminal offense, Mizuno’s role in the execution of Deadman suggested a shared responsibility for the work’s outcome that was tested not only on the night of the performance but also in the court of law.

Mizuno was an early supporter of Burden, allowing him to stage Deadman as part of a week of performance and film that included the work of Chuck Arnoldi, Jud Fine, Ed Moses, and Tom Wudl. As a result of exhibiting this work and soliciting viewers for Burden’s performance, her involvement as Burden’s Los Angeles gallerist expanded to something more akin to that of an abettor. Her authority as a known gallery owner was exploited (1) to attract an audience for the piece; (2) to direct them to leave the gallery building to view the work on the street; and (3) to negotiate with the resulting legal authorities both on the night of the performance and at the subsequent trial. Whether or not the actions that comprised Deadman would be legally considered a crime would be predicated on the testimony of figures like Mizuno.

According to Smith, Mizuno was the first witness called by the defense to the stand. In her testimony, Mizuno emphasized that she and the artist jointly discussed the piece prior to its execution, even considering the possibility of police intervention, which they determined to be unlikely given the artistic context. While Burden did not typically give advance notice of his performances and often organized participants largely through word of mouth, the fact that Deadman was one of the few works by the artist to date to be staged “in” a commercial gallery meant that Mizuno was aware of the work’s parameters and therefore knowingly agreed to go ahead despite potential legal implications.

The next witness was Helene Winer, the former director of the Pomona College gallery and an art critic for the LA Times. Noting that she was likely asked to serve as a witness for the defense due to the fact that “I was one of the only people at the event who wasn’t an artist and had a respectable job,” Winer recounts that on the stand, she underscored “that despite the resemblance to an accident scene, I did not think that it could be mistaken for one or posed any danger to the artist or to cars driving on the street. While this was not an entirely honest testimony, it was not far off.”¹³

Finally, the Los Angeles County Museum of Art curator Jane Livingston took the stand. Her defense of Burden’s work touched on the way in which he utilized legal transgressions in his performances to explore shared responsibility with others. Livingston stated that “artists, like Chris, use their bodies in a way that is a direct experience for the artist himself and incidentally perhaps for other people.”¹⁴ She stressed that Deadman was conceptually in line with other works by the artist in which he foregrounded a “generally passive use of his body achieving the maximum amount of psychic reaction, a simple act with complex ramifications.”¹⁵ While Livingston focused on the centrality of Burden’s body, her recognition of the work as opening outward to involve the experience of others suggests that expanded forms of accountability in the work was at least unconsciously acknowledged.

James G. Butler, Burden’s defense attorney, was a Los Angeles–based drug products lawyer as well as a prominent art collector during the late 1960s and 70s.¹⁶ Butler’s legal reputation was built on his participation in significant class-action civil cases against pharmaceutical companies and being the founder of the Compton NAACP in 1955. Although his identity had not been attributed in scholarly or critical texts on Burden’s performances to date, he plays a significant role in Deadman.¹⁷

Despite being charged with the criminal offense of falsely signaling a police emergency based on his use of flares, Burden faced accusations by the deputy D.A. during his trial that he was exploiting the circumstances for fame, publicity, and money, or simply playing a hoax. Butler’s defense strategy was to explain the artistic context for Deadman, offer evidence that Burden was an established artist (despite being only three years out of his MFA), and provide a brief overview of the significance of performance and conceptual art for the jury. According to Smith, Butler “argued the necessity for an avant-garde which challenges current ideas of what art and life is about, saying that such challenges are part of the right of free speech and that this right must leave room for controversial ideas.”¹⁸ Butler denied accusations of the artist’s criminal intent, stressing that laying in the street and setting up flares was—in itself—lawful. His closing statements added that the police had overreacted without thorough investigation; Butler therefore claimed that they “had caused the emergency report and the law does not deal with a false emergency, but only with a false report of an emergency.”¹⁹ Furthermore, he emphasized that “the police had never ascertained at all if indeed any emergency existed.”²⁰

This last point is significant. The lack of a proper police investigation at Deadman necessitates an acknowledgment of the artist’s white privilege—upon which his engagement with illegality was often predicated. The fact that the primary suspect for a “crime” that occurred in a white, middle-class neighborhood in Los Angeles was a young man of a similar demographic allowed Burden to engage with tactics of criminality in ways that artists from marginalized groups could not readily or safely access.

This is particularly clear when compared with the contemporaneous work of the Chicano artist collective Asco, whose LA-based performances of the early 1970s used similar tactics of public intervention with radically different results. For instance, Asco’s Decoy Gang War Victim (1974) also comprised a fake crime scene, with one member—Glugio Nicandro, also known as Gronk—playing the role of a cadaver laying on the pavement. While Burden staged Deadman on a main throughfare in the predominantly white area of West Hollywood, where it received immediate police involvement, Decoy Gang War Victim was staged multiple times in largely Chicano neighborhoods struggling with local gang violence. Anticipating the lack of art audiences or even police presence, Decoy Gang War Victim was photographed by Asco member Harry Gamboa Jr., whose images were then distributed to the mainstream local media with a caption suggesting the victim was a gang member. Gamboa Jr. explained the motivations thusly: “The project was a response to the incendiary tabloid-style journalism of the two major Los Angeles newspapers, which often listed the names, addresses, workplaces, and gang affiliations of the victims or their family members in an effort to maintain high levels of reciprocal gang violence, thus selling more newspapers. The desired effect of Decoy Gang War Victim was . . . to rob the newspapers of their daily list of victims.”²¹

The fact that law enforcement did not intervene in the staging of the Asco work, as was the case within minutes for Burden, highlights the racial discrepancies over police protection affecting marginalized communities. Burden’s deliberate choice to stage Deadman in a highly populated throughfare also speaks to his relative confidence in being able to negotiate potential legal fallout from the events that might transpire from his work. Moreover, Burden had a substantial network of associates to protect him, as his witnesses called to the stand had proven; these abettors mark a significant contrast to the lack of onlookers and police involvement for Asco’s work.

Despite their contextual differences, both Burden and Asco put forth a simulation of a fatally injured person at a time when the rights of the body had recently undergone—or were undergoing—substantial public debate and legal battles. Burden would later produce sculptural works that addressed authoritative power and police violence; for instance, L.A.P.D. Uniforms (1994), in which he produced thirty enlarged replicas of Los Angeles Police Department uniforms and installed them along the perimeter of the exhibition space to visually suggest an impenetrable cordon, was made in the wake of widespread social unrest that erupted in 1992 following the acquittal of the Los Angeles police officers on charges of excessive force who brutally beat and killed the unarmed Rodney King during the course of an arrest.

Other Los Angeles–based artists working in the early 1970s shared this interest in how the representation of the body intersected with the court of law. David Hammons, for instance, created Injustice Case (1970) as part of his series of body prints in which he coated his clothed form in margarine and imprinted a record of his body on a sheet that was then dusted with pigment. This work depicts a figure bound and gagged; Hammons staged himself in the image of the Black Panther leader Bobby Seale, who was denied both an attorney of his choice and the opportunity to represent himself while on trial for conspiracy in 1969 as part of the Chicago Eight. When Seale contested such silencing, the judge—operating in a closed courtroom without cameras—ordered that Seale was physically restrained in front of the jury deciding the trial. When Injustice Case was first shown at the Brockman Gallery in Los Angeles, the work appeared inside a glass case with a judge’s gavel—dramatizing the disturbing scope of legal power that hung over Seale’s proceedings.²² Even seen without such details, Hammons’s portrayal of the courtroom scene in Injustice Case bears witness to an event in which photographic documentation was explicitly banned.

Returning to Burden’s trial, after a full day of deliberation, the twelve jurors could not come to a unanimous decision, resulting in a hung jury. While the deputy D.A. sought a retrial, Judge Zucher decided to dismiss the case due to the fact that he believed “Chris was a serious artist, had intended no emergency, nor was his art merely a prank, and that he did not deserve further inconvenience in as much as he was being tried under the wrong section of the law and he was not a criminal.”²³ According to follow-up discussions with the jury, despite a 9-3 verdict in favor of conviction, three jurors cited reasonable doubt over whether Burden had knowingly caused a false emergency, which led to the case being thrown out. 

Although charges against Burden were ultimately dropped, the legal dimension that underlies this work and Burden’s deliberate involvement of auxiliary participants recurs in other key performances by Burden conducted over the following years. Placing his freedom in the hands of the jury, Deadman serves as a key example of distributed agency: rather than being centered exclusively on his personal actions, the work in fact comprised a network of individuals whose authority and culpability were tested under the purview of the law. If prosecuted, those who abetted the artist in the construction, documentation, publicity, and legal protection of the work could be potentially charged as accomplices. Moreover, if Burden won the case, the jury could become further embroiled in the work, as the presumed illegality of Burden’s actions would be unpunished because of their verdict. One of the juror’s votes in favor of Burden’s conviction for Deadman came from a local flight attendant, who was reported as saying afterward “if she ever saw him under a tarp again, she’d run him over herself.”²⁴

Deadman set into motion a relay of ethical involvement that, for the first time in Burden’s career, had actual legal consequences both for the artist and his network of accomplices. At its core, the work Deadman explores to what extent a person is responsible for another’s actions and how much that accountability can be shared with others. Such a sentiment was expressed by Smith, who rhetorically asked “What is the responsibility of the art gallery to the artist? . . . To what degree should the art community or art establishment come to the support of an artist?”²⁵

Similar questions were being probed on social and political levels throughout America in the 1970s. According to historians like Laura Kalman and Bruce Schulman, in the wake of the tremendous leftist victories of the 1960s, the following decade was marred by numerous crises that weakened support for liberal agendas, including the U.S. defeat in the Vietnam War, the rise of the religious right, soaring inflation, the de-industrialization of the Rust Belt, and a series of energy crises. This fracturing of the leftist coalition and the disillusionment with the government’s ability to effect positive change led to a growing sense of individualism and entrepreneurialism, but also disenchantment, that set the stage for the conservatism of the 1980s. The sense of community felt by Americans in the sixties—both in mainstream and countercultural groups—became splintered. Similarly, many “feel-good” or collaborative forms of participation and performance that characterized the late 1950s and 1960s—such as [Allan] Kaprow’s attempts to integrate everyday life into the field of art through his Happenings or Fluxus invitational instructions for audiences to become participants—was ostensibly replaced by body art practices by the early 1970s, which maintained a distance between the viewing audience and the artist-performer, often through the mediated image. Yet, as I argue throughout Artist, Audience, Accomplice, many of these works—such as those by Burden—did in fact continue to explore the role of others in their work, albeit through an alternative model of auxiliary participation that exceeds the current discussions in the participatory art genre.

Extending Anne Wagner’s analysis of 1970s art presented in the book’s introduction, the role of witnessing that historically had been central to art-viewing now took on the function of interpretive judgment, which is construed in legal terms in Burden’s practice. The expanded circumstances constituting Deadman foregrounds the agency and accountability of Burden’s accomplices, demonstrating that the role of the witness opens a relay of ethical and legal involvement moving beyond the conventional responsibility of an audience. And yet, Burden structures this distribution of potential liability so that the negative costs that might accrue from such actions are transferred to others, thereby mitigating personal risk, while retaining artistic credit for the work’s success.²⁶ That is, to bear witness in Burden’s work is to participate and accept complicity in its consequences, thereby assuming the role of an accomplice with all the risks and implications that this produces.