If you haven’t watched Ava DuVernay’s Netflix miniseries When They See Us, or Ken Burns’s documentary The Central Park Five, you need to. Go ahead, grab some tissues. I’ll wait.
We good? What you just saw was a story of how gross prosecutorial misconduct and racism can lead to wrongful convictions. The story, sadly, is not just about those boys but about black and brown boys everywhere, and the dangers they face at the hands of a racist criminal-justice system, every time they leave their houses.
There is enough villainy to go around: The police, the media, Donald Trump—lots of society’s moving parts intersect to bring injustice upon children of color. But a consistent tool deployed against black and brown youths is the prosecutor’s office. You just can’t miscarry justice without it.
In the films, Linda Fairstein comes off as one of the principal villains. She was head of the sex-crimes unit in the Manhattan district attorney’s office at the time of the attack on Trisha Meili, the woman long known as the “Central Park jogger.” It was on her watch that Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana, and Korey Wise, all 16 or under at the time, were rounded up. The boys were questioned without an attorney or parent present, tricked into false confessions, pre-tried in the court of public opinion, convicted, and sentenced for crimes they did not commit. She, as much as any single lawyer-type can be, is responsible for this legal travesty.
The Central Park Five were exonerated by DNA evidence in 2002 after convicted serial rapist Matias Reyes confessed to the crime. Reyes went on to assault and rape many other people after the Central Park attack, before he was finally caught.
In real life, Fairstein appears to be an even worse person than she is portrayed to be. You’d think Fairstein would be inconsolable, ashamed, or just plain embarrassed after learning that her actions not only put five innocent boys in jail but also allowed the real perpetrator to go on raping people for that much longer. But, no, she’s not humiliated—she is defiant.
This week, The Wall Street Journal gave her editorial space to attack the Central Park Five again. It’s so very on-brand for the Journal to allow a disgraced prosecutor to write a soliloquy against people of color. That’s the kind of news we need so we can determine whether to hang on to our “unrepentant white supremacy” stocks for another day.
In her op-ed, unmitigated scientific evidence that she prosecuted the wrong people does not stop Fairstein from insinuating the boys still had something to do with Meili’s rape. She starts: “At about 9 p.m. April 19, 1989, a large group of young men gathered on the corner of 110th Street and Fifth Avenue for the purpose of robbing and beating innocent people in Central Park. There were more than 30 rioters, and the woman known as the ‘Central Park jogger,’ Trisha Meili, was not their only victim. Eight others were attacked, including two men who were beaten so savagely that they required hospitalization for head injuries.”
Do you see what she did there? Let me slow it down so we can all experience this fetid example of opening drivel prosecutors regularly shovel at juries.
First, she put the Central Park Five with the group of “young men” just outside the park. She didn’t specifically invoke their names as part of the group of young men. She can’t, because she can’t prove that they were there. There’s no physical evidence putting any of those five boys outside the park among a “large gathering” at 9 pm. But we know she’s talking about the Central Park Five, because this is her first sentence in her op-ed, titled “Netflix’s False Story of the Central Park Five.” We’re not stupid, right? We’re all supposed to know who she’s talking about even though she doesn’t name them.
Then she ascribes a motive to the gathering: the “robbing and beating of innocent people.” She can’t prove that either. There were a series of attacks in the park that night, but, as we learned, she can’t prove that some large gathering of “young men” (mostly teens) formed a common purpose outside the park at 9 pm to conduct those attacks in an unprovoked fashion. Much has been written about the police misinterpretation of the boys’ use of the word “wilin’”—which was slang at the time for “hanging out”—with “wildin’”—which is a term made up by police that’s supposed to indicate a conspiracy to commit random acts of violence. But, remember, Fairstein can’t prove that the Central Park Five were part of the alleged rampaging groupthink, even if one existed.
Then she specifies her terms, changing “large group” to “more than 30” and “young men” to “rioters.” Are you frightened yet? She’s counting on you to misinterpret increased specificity as additional facts.
Then she gives them a victim. Note that the first and only named victim is Trisha Meili, who we know was not raped by the Central Park Five. Doesn’t matter. Even though we know she was not raped by the Central Park Five, we’re now told Meili was “not the only victim” of the Central Park Five, whom Fairstein can’t name because she can’t establish they were even there as part of the rioters. She’s written two sentences, by the way, and has already subtly re-accused the boys of crimes she knows they did not commit.
Then she ramps up the body count. Eight victims, savage beatings, hospitalizations, head trauma! Just who are these monsters (we’re supposed to think) who maybe didn’t technically rape a woman that evening, but beat up and terrorized an entire park? Were they the Central Park Five? No. Remember she has no idea where those five boys were while this was all going down; it’s a huge park, and the boys claimed they were just hanging out. She can’t prove that they were part of the group of rioters, can’t prove that they participated in the riots, has no physical evidence of them laying a hand on Meili, and can’t prove that they touched any of the other victims either. In fact, the only thing Linda Fairstein can prove about the Central Park Five is that they were nonwhite and in Central Park at some point on the night of April 19.
Fairstein engages in this literary sleight of hand throughout her op-ed. She points out that 15 teenagers were apprehended, among them members of the Central Park Five. She offers this as proof that they did something, when an arrest is not proof of anything. She seamlessly transitions from picking nits with DuVernay’s dramatization of the story, and then attacking the innocence of the real-life men. Investigative journalist David Heath has a great thread on Twitter knocking down every one of Fairstein’s unfair conjectures based on his encyclopedic knowledge of the case file.
This is what prosecutors do. This is how wrongful convictions happen. We watch courtroom dramas and listen to true-crime podcasts and we think a trial is about evidence, but they’re really about narrative. In this case, you know Fairstein has no evidence. You know that the people she’s talking about were actually exonerated. And yet, in one opening paragraph, Fairstein has tapped into that most familiar of tropes: Them black folks were guilty of something; they had it coming, for one reason or another.
Good prosecutors construct an argument. Good writers construct a narrative. Fairstein is neither. She’s just constructing a smear. She is attacking these men, again, trying to revictimize them after already trying to ruin their lives, and The Wall Street Journal is letting her do it in their pages.
In a courtroom, as the prosecutor, Fairstein would have to convince people that the Central Park Five were guilty beyond a reasonable doubt. But in the Journal, she’s managed to invert her role. Now, she’s the one casting reasonable doubt on the innocence of the Central Park Five. She wants to make the exonerees the ones with the burden to prove their innocence.
Her theory is that the Central Park Five were part of a “pack” which participated in the attack on Meili and others, even if Reyes was the only one who physically participated in the rape. Her theory is wrong, but here’s the heart of her case in the op-ed:
Ms. DuVernay would have you believe the only evidence against the suspects was their allegedly forced confessions. That is not true. There is, for example, the African-American woman who testified at the trial—and again during the 2002 re-investigation—that when Korey Wise called her brother, he told her that he had held the jogger down and felt her breasts while others attacked her. There were blood stains and dirt on clothing of some of the five. And then there are the statements of more than a dozen of the other kids who participated in the park rampage. Although none of the others admitted joining in the rape of Trisha Meili, they admitted attacking male victims and a couple on a tandem bike, and each of them named some or all of the five as joining them.
This paragraph is a pile of garbage. The confessions weren’t “allegedly” forced, they were actually forced. We know that because of science. We know that because the real rapist, Reyes, says he acted alone, which lines up with the fact that he acted alone in his other rapes. We know that there’s no evidence Reyes knew any of the Central Park Five at the time of the attack, based on the 58-page motion to vacate the convictions of the Central Park Five filed by Fairstein’s boss in 2002. We know that any confessions to the contrary were fabricated. We know that the Central Park Five’s confessions contained inconsistencies with physical evidence of how the crime was committed, while Reyes’s confession included details unknown to the public. So, we know, and Fairstein knows, that her entire theory of the case that Meili was assaulted by a “pack” of boys which included the Central Park Five has been rejected by science, the real criminal, and her own prosecutor’s office.
And yet she resurfaces her phantasmagorical theory here.
Fairstein is full of it. She’s been full of it for 30 years. If The Wall Street Journal wanted to smear these guys again, they should have just let Donald Trump do it. At least that would have distracted him from ruining the rest of the country for a day.
I have no more questions for Linda Fairstein. It’s above me now. But I do have questions for New York State Governor Andrew Cuomo, if Cuomo can pull himself away from laughing at Bill de Blasio’s presidential campaign long enough to look at other train wrecks. In March, the governor signed a bill creating a prosecutorial review board, empowered to review misconduct in the district attorney’s office and impose sanctions. Naturally, it’s being challenged by district attorneys.
The bill is a good first step, but until we see whether it has any teeth, it seems inadequate to deal with the problem. Linda Fairstein is not the only prosecutor to put innocent people behind bars. She wasn’t even the only prosecutor on this case. Elizabeth Lederer was the trial prosecutor who presided over this tragedy. She was every bit as complicit as Fairstein, and thus far has been every bit as unrepentant. She was quietly teaching at one of the best law schools in the country, Columbia Law School, until this week, when the shame of it all finally forced her and Columbia to part ways.
After leaving the prosecutor’s office, Fairstein became a crime novelist. I guess the Central Park Five case was good training for her in the art of making stuff up. Since the release of When They See Us, she’s been dropped by her publisher and removed from the board at Vassar.
But she’s not in jail. Lederer won’t be going there either. Documentaries and miniseries and state review boards are great for bringing about social shaming, but people like Fairstein will not truly pay for their crimes until we make what they did crimes.
Otherwise, they’ll keep doing it. Fairstein is, quite literally, continuing to try to prosecute the Central Park Five in the media. She used the legal system to destroy the lives of five people, and somehow that legal system still protects her from justice instead of protecting the Central Park Five from her or The Wall Street Journal.
A good-faith prosecutorial mistake is a tragedy. But what happened to the Central Park Five was not done out of an abundance of good faith. Fairstein’s continued attacks against them prove her lack of good faith. What she did to them, what she keeps doing to them, is not an accident. It is a crime.