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Ava DuVernay vs. Linda Fairstein: Fact Checking 'When They See Us'

By Dustin Rowles | Streaming | June 11, 2019 |

By Dustin Rowles | Streaming | June 11, 2019 |


A couple of weeks ago, Ava DuVernay released her film about the Central Park Five, When They See Us, detailing the 1989 events that led to the arrest, interrogation, conviction, and imprisonment of the five boys between the ages of 14 and 16 years old. Yusef Salaam, Antron McCray, Kevin Richardson, Korey Wise, and Raymond Santana served between six and 13 years in prison for a crime that Matias Reyes eventually confessed to. After Reyes’ confession, the state of New York vacated the convictions against the Central Park Five. They sued, and the city of New York eventually settled for $41 million.

Since the release of When They See Us, the prosecutor in the Central Park Five case has come under intense heat for the role she played in wrongfully convicting the five boys. Initially, there was a call to boycott her books (she is an author of thriller novels), but eventually Fairstein had to resign from several boards, and a few days ago, even her publisher dropped her.

Yesterday, Fairstein penned an op-ed in the Wall Street Journal defending her actions and suggesting that DuVernay’s film is “so full of distortions and falsehoods as to be an outright fabrication.” Based on the power of Ava DuVernay’s film, and the ultimate outcome in the case — all five were exonerated — I am predisposed to side with DuVernay in this debate. My instinct is to go the route of Harold Perrineau and dismiss Fairstein out of hand:

Alas, I also know that Ava DuVernay took some “light” liberties, as she — and others — would agree. Moreover, in statements she made yesterday, DuVernay rightfully suggests that Fairstein should not be held solely accountable for what was an institutional problem:

“I think that it’s important that people be held accountable,” explained DuVernay. “And that accountability is happening in a way today that it did not happen for the real men 30 years ago. But I think that it would be a tragedy if this story and the telling of it came down to one woman being punished for what she did because it’s not about her. It’s not all about her.”

But I also wanted so very badly to know if there was any truth to Fairstein’s defense. So, let’s break it down, based on facts presented in the State of New York’s motion to vacate in 2002, which is probably the closest thing to fact that anyone is going to get.

The WSJ piece is behind a paywall (I read it via Apple News), but the gist of Fairstein’s defense is this: There were “riots” in Central Park on the night of April 19th, 1989. Fairstein claims that DuVernay missed “the larger picture of that terrible night: a riot in the dark that resulted in the apprehension of more than 15 teenagers who set upon multiple victims.” Eight people were attacked that night, and two were left severely injured.

Fairstein claims that there was compelling evidence that the five boys were involved in the riot itself, and used their involvement as a predicate for arresting them. She then claims that she made the leap from “rioting” to “rape” based on the Central Park Five’s actual confessions, the evidence of blood and dirt on their clothes, witnesses who claimed that some of the five boys were involved in the rioting, and hearsay testimony from another witness.

Basically, Fairstein’s defense is that the Central Park Five were definitely involved in the rioting, therefore it was justifiable to charge them for the rape of Trisha Meil, that their confessions gave her enough reason to prosecute, and that even though they ultimately were exonerated of the rape, it’s not fair that their convictions for participating in the riots were also vacated.

So, what is the truth? DuVernay’s film did present the riots, but I will concede that it also downplayed the boys’ involvement. There is a good reason for that, however, and that is because the boys’ involvement in the riot and the injuries of others is in dispute. According to the State, “the People’s proof was limited by one fundamental fact: None of the victims could identify any of the defendants.”

Yes, other defendants — many of whom were charged themselves — implicated the Central Park 5 in the rioting, but none of the victims did. Moreover, at trial, it was impossible to separate the rioting crimes from the rape, because the police in interrogating the five treated the rioting and the rape as “one single event.” During the trial, Fairstein used evidence of rape obtained in the coerced confessions to prejudice the jury on the rioting charges.

In other words, if a jury believed that the defendants raped Trisha Miele, it would follow that they’d believe that the defendants were involved in the riots. Why? Because if someone convinced a jury based on coerced evidence that the defendant committed a heinous act, the jury will be predisposed into believing that the defendant also committed a lesser act, regardless of the evidence. In short, on the rioting charges, the defendants never got even close to a fair trial, and therefore it was reasonable for DuVernay to downplay their involvement because there was no significant evidence separate from the rape confession to suggest they were even involved, because Fairstein was never interested in separating the two acts at trial. She was basically like, “If they did one, then they must have done the other.”

Only obviously, they didn’t do the one crime, so how can anyone now reasonably deduce that they did the other?

Fairstein also suggests in her op-ed that DuVernay unfairly characterized her as an “overzealous bigot.” How could she be characterized as anything other than an “overzealous bigot”? This is illustrated in When They See Us, but the actual facts are much worse for Fairstein, because they illustrate that only an “overzealous bigot” would prosecute this case.

To wit:

— Each of the boys initially denied any knowledge of the attack.

— After extensive questioning, however, there were five confessions, but none of the five defendants ever admitted to raping Trisha Miele. They all only confessed to minor roles in the crime: Touching a breast, grabbing a leg, kicking her, etc. As the State of New York writes, “Each spoke about the crime with a view toward becoming a witness rather than a defendant.” (Emphasis mine) In other words, none of the boys actually admitted to the crime; they played along so that they could go home and, at worst, have to return as a witness.

— The five confessions “differed from one another on the specific details of virtually every major aspect of the crime — — who initiated the attack, who knocked the victim down, who undressed her, who struck her, who held her, who raped her, what weapons were used in the course of the assault, and when in the sequence of events the attack took place.”

— In describing who was involved in the rape, every single confession was different, identifying a completely different set of individuals (some of whom were not even charged). The only person named in all of the confessions but his own as the rapist was Kevin Richardson, the young 14-year-old. However, he was also the first to falsely implicate other members of the group, thereby giving the other four a reason to implicate him.

— None of the defendants could state from which way the victim was running. None of the defendants — except for Korey Wise, who had been taken to the scene of the crime before he provided evidence — could even identify where the victim was raped. THEY HAD NO IDEA WHERE THE CRIME OCCURRED. None of the defendants mentioned the victim’s keys, her Walkman, or any efforts made to rob her, even though they all did accurately remember other details from the night.

— In describing the victim, the boys all got it wrong, falsely stating that she was naked, that her clothes had been cut off, that her bra had been ripped off, that her legs had been cut with a knife. None of that was true. Some of the defendants claimed a brick was used in the attack. There was no evidence of that at the crime scene.

— The prosecution’s timeline was not just terrible but impossible. “It is difficult to construct a scenario that would have allowed the defendants the time to interrupt their progression south, detour to the 102nd Street transverse, and commit a gang rape.”

— There was almost no physical or DNA evidence at the time linking the five kids to the rape. All that Fairstein had forensically linking the five boys to the victim was ONE hair on Richardson’s clothes that experts claimed could have possibly belonged to the victim (by 2002, testing was able to rule that possibility out).

Only one of the hair fragments was suitable for testing. The other fragments were too small. The fragment tested yielded only a partial DNA sequence, with a number of differences from the jogger’s DNA.

That’s it. The sum total of the forensic evidence linking one of the Central Park 5 to the victim.

In other words, it was all bullshit. Linda Fairstein knew it was bullshit, and she prosecuted five black kids for a crime she reasonably knew they could not have committed. How is that anything other than the act of an “overzealous bigot”?

Is When They See Us 100 percent accurate? No. Did Ava DuVernay take some light liberties? Yes. But did she, in any way, unfairly depict Fairstein as an “overzealous bigot.” Absolutely not. In fact, all of the evidence seems to point to that incontrovertible conclusion. Fairstein constructed a narrative that she knew could not be true to convince a jury that five kids raped Trisha Meili and then used the prejudicial nature of that crime to convince the jury that defendants must have also committed the lesser rioting and assault crimes, which Fairstein now insists should not have been vacated. Why? Because 30 years after the original trial, and 17 years after the Central Park 5 were exonerated, she’s still an overzealous bigot.

Verdict: Fairstein deserves zero sympathy.

Source: The People of the State of New York against Kharey Wise, Kevin Richardson, Antron McCray, Yusef Salaam, and Raymond Santana

Dustin is the founder and co-owner of Pajiba. You may email him here, follow him on Twitter, or listen to his weekly TV podcast, Podjiba.

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