A changing America finally demands that the Central Park Five prosecutors face consequences

Near the end of the first episode of Netflix’s When They See Us — a four-episode dramatization of the 1990 Central Park jogger case and its infamous aftermath — Linda Fairstein (Felicity Huffman), who oversees the Manhattan District Attorney’s sex crimes unit, and prosecutor Elizabeth Lederer (Vera Farmiga) meet in a dimly lit library to discuss the case, which has led to the arrests of five teenagers and left New York a tempest.

“I’ve got to face the judge and prosecute this, Linda,” Lederer says to Fairstein. “What is your case?”

Fairstein sits forward, her hands folded on the table. “Our case,” she says, “is they’re all guilty. Each of these boys assaulted Patricia Meili. They all raped her. And we know this because in each of these boys’ confessions, they all bear eyewitness against each other.”

Lederer looks at her closely. When Fairstein asks if she thinks it’s too weak, Lederer replies steadily: “I’m imagining myself walking into that courtroom armed with a stack of wildly conflicting statements, no physical evidence, no weapon.”

“All we need is for one of these little shits to tie this whole thing together,” Fairstein replies. Lederer can only raise her eyebrow.

It’s this image of Fairstein — as a pugnacious figure cramming the confessions of five teenage boys into the mold she’s already determined they’ll fill — that has rocked the viewers of When They See Us. And it has rocked Fairstein too.

Since the series’ May 31 debut, Fairstein, a best-selling mystery novelist, has been dropped by her book publisher. She resigned from the board of Vassar College, her alma mater. Glamour magazine, in a letter from editor-in-chief Samantha Barry, all but rescinded her 1993 Woman of the Year award. A viral Twitter campaign has sprung up using the hashtag #CancelLindaFairstein, and petitions have called for readers and booksellers to boycott her novels.

Fairstein was head of the Manhattan DA’s sex crimes unit from 1976 until her retirement in 2002. During her time there, she prosecuted numerous high-profile cases, including the 1986 “Preppy Killer” case against Robert Chambers. But the flawed Central Park jogger case, with Lederer as lead prosecutor, may now be the one that defines her. When They See Us has shifted public opinion about Fairstein and her role in the prosecution of the five Harlem teens — after Fairstein had a long and fruitful career in the public eye. The question is, why now?

Some have argued that the consequences Fairstein is suddenly facing are unmerited, while others have characterized them as justice finally catching up with Fairstein. The teenagers — Raymond Santana, Kevin Richardson, Antron McCray, Yusef Salaam, and Korey Wise, who came to be known as the Central Park Five — confessed to and were convicted of brutally beating and raping Meili, a 28-year-old jogger in New York City’s Central Park in April 1989. The boys’ confessions conflicted with and contradicted one another, and there was no material evidence to suggest they were involved with the rape, but no matter: They were convicted of the crime. Twelve years later, another man, Matias Reyes, a convicted serial rapist, confessed. DNA evidence backed up his account. The Central Park Five were exonerated, and their convictions vacated.

Marilyn Church/Associated Press

Why didn’t Fairstein, or Lederer for that matter, face backlash and damage to her reputation on this scale after Reyes’s 2002 confession? Or when a prominent documentary about the case premiered at Cannes in 2012, then had a healthy 10-week run in theaters later that year? Or after New York City settled a wrongful conviction lawsuit in 2014 for $41 million?

Why some reevaluations of public figures that seem long overdue only happen after the release of a film about them — the aftereffects of the 2018 Lifetime documentary Surviving R. Kelly is a good example — is nearly impossible to trace to one cause. The political climate can contribute, as can public sentiment about issues such as criminality, race, and justice. Even technology can make a difference, since people all over the world can watch a miniseries on their TV or computer or smartphone, and then connect over their shared fury on social media.

Public image vs. reality

In early June, Fairstein wrote in a Wall Street Journal op-ed that the Ava DuVernay series was an “outright fabrication” that attempted “to portray me as an overzealous prosecutor and a bigot, the police as incompetent or worse, and the five suspects as innocent of all charges against them.” (Lederer, meanwhile, resigned her post as a part-time lecturer at Columbia Law School, though she will continue in her role as a prosecutor in the Manhattan District Attorney’s Office.)

Fairstein’s career has not been without controversy and question marks; she was, for example, one of several high-profile attorneys who helped pave the way to silence one of Harvey Weinstein’s accusers, Italian model Ambra Gutierrez, in 2015.

But she has regularly served as a sex crimes expert for media outlets, vocally supported Christine Blasey Ford during Brett Kavanaugh’s Supreme Court hearings, and sat on the board for Safe Horizon (which advocates for domestic abuse victims) until the public outcry following When They See Us. She is credited with helping shift the conversation around sexual violence in the United States. “When I started doing this work, violent crimes against women was something people didn’t talk about — not in mainstream media or at dinner parties,” she told Vassar’s Alumnae/i Quarterly magazine in 2012. “Now, there is no stigma. People who have been victimized are not seen as participating in the crime, and to me that is so wonderful.”

Paul Hawthorne/Getty Images

Fairstein was honored professionally for her work on the Central Park jogger case and others. In 1991, she became the first woman to win the Federal Bar Council’s prestigious Emory Buckner Award, presented “for outstanding public service.” In 1993, she was Glamour’s Woman of the Year and published Sexual Violence: Our War Against Rape, which was named a New York Times Notable Book. In 1998, her former law school classmates from the University of Virginia established the Fairstein Public Service Scholarship in her honor. In 1996, Fairstein began to write novels about a sex crimes prosecutor named Alex Cooper. They became international best-sellers.

After Reyes confessed to raping Meili in Central Park, saying he had acted alone, DNA evidence from semen found on Meili’s clothes corroborated Reyes’s account. The convictions were vacated, and Richardson, Santana, and McCray sued the city in 2003 for malicious prosecution, racial discrimination, and emotional distress.

Lederer remained largely quiet on the case in the years following. But Fairstein periodically defended the police and the prosecution to the press. In 2002, she told the New Yorker’s Jeffrey Toobin that her office’s handling of the case was solid, even in the face of criticism that the boys had been railroaded into making false confessions. “Fairstein understands that their convictions may have to be vacated, but she is adamant that such a finding shouldn’t be taken as proof of their innocence,” Toobin wrote.

“I am probably responsible for exonerating more people falsely accused of rape than any fifty prosecutors in the country,” Fairstein told Toobin. “We all did here what we did every day. We were there to find out who did it.”

A decade after the men were exonerated, with the civil case against the city of New York still pending, the documentary The Central Park Five — co-directed by Ken Burns, his daughter Sarah Burns, and Sarah’s husband David McMahon — caused a stir with audiences and critics, premiering at the Cannes Film Festival in May and then opening in theaters in November.

New York Daily News Archive

The case became an issue during the 2013 mayoral race in New York, and it reared its head during the 2016 presidential campaign. Donald Trump had called for the death penalty in the case in 1990 via full-page ads in the New York newspapers, and still refuses to admit he was wrong about the Central Park Five’s guilt. New York City finally settled with the five men in 2014 for $41 million, which they divided among themselves; as part of the settlement, the city did not admit wrongdoing.

But none of these developments made much of a dent in Fairstein’s public image. She continued writing novels, speaking, and consulting with media outlets during high-profile cases (including the 2004 molestation charges against Michael Jackson). She spoke at her alma mater, signed her latest book releases at major events, and gave interviews to national and international media. She was interviewed about her art collection in the New York Times as late as 2017. Her 20th Alex Cooper novel came out this March.

However — in a sign of things to come — in November 2018, the Mystery Writers of America announced it would recognize Fairstein with its prestigious Grand Master Award, given in the past to figures such as Stephen King and Sue Grafton. Then two days later, it rescinded the honor. Intense objection from prominent writers, including Attica Locke’s accusation that Fairstein was “almost singlehandedly responsible for the wrongful incarceration of the Central Park Five,” had changed the organization’s mind.

According to one of the producers of When They See Us, Jane Rosenthal, Fairstein had exchanged emails with the series’ creative team about offering her perspective while the project was in development. But she didn’t end up participating. While speaking at a recent panel about the series, Rosenthal said Fairstein’s “point of view was clearly that she didn’t want us talking to the five men if we were talking to her.”

It is clear, after all this time, that something measurable had changed. America in 2019 is different than it was in 1990, when the teenagers were convicted. It’s different than it was in 2002, when the convictions were vacated, and in 2012, when the Burns and McMahon documentary was released.

The air has shifted in a way that reveals changes in broader American culture — in what we’re willing to talk about, our confidence in long-entrenched power structures, and in how the media covers crime stories. And when you couple that evolution with Netflix’s broad reach, you can understand why people watched When They See Us and were moved to do something, or at least to express outrage about what happened.

Fairstein, as she is portrayed in the film, was in the crosshairs.

The case that consumed the American imagination

It might be easy to assume that Burns’s and McMahon’s Central Park Five documentary entered into a world that was ripe for outrage over the treatment of the five Harlem teenagers. After all, it was 2012. Barack Obama was seeking reelection. The audience that would go see the film was likely aware of the some of the details of the case, or already sympathetic to the film’s arguments about Fairstein’s tactics — documentary audiences tend to be.

The city of New York felt threatened by the film: In September 2012, after its Cannes premiere and subsequent screenings at film festivals like Telluride and Toronto, the city served the production with a subpoena demanding its notes and raw footage. The city claimed the film was “biased,” and that it contained “evidence” meant to impact the decade-old wrongful conviction lawsuit that had stalled in court. (The subpoena was later blocked by a federal magistrate court judge, who ruled that the filmmakers were protected by reporter privilege laws.)

Soon after, the settlement became an issue in New York’s hotly contested 2013 mayoral race, which Bill de Blasio ultimately won (and once he took office, he saw to it that the city settled with the men). So clearly, people cared.

But the environment around When They See Us feels different. Even Sarah Burns, who co-directed the documentary and wrote a 2011 book on the case, acknowledges it.

Jason Kempin/Getty Images

In a phone interview, Burns noted that even though The Central Park Five played at film festivals, in theaters, and ultimately on PBS, its reach couldn’t match Netflix’s, which has millions of subscribers worldwide. Netflix’s viewership data is notoriously difficult to parse, but two weeks after its release, the company announced that When They See Us had been the most-watched series on the platform every day since its release.

That means a lot of people watched (and tweeted about) DuVernay’s series. And they did so in a political and social climate that was ripe for a reevaluation of the case.

“We’re in a different place today than we were in 2012 and 2013, in terms of how we talk about issues of race, police brutality, the challenges of our criminal justice system, and mass incarceration,” Burns said. “These are topics that are very much in the air today, in a way that I don’t think they were as much back then. This was pre-Ferguson. It was pre-Black Lives Matter.”

Additionally, the 2016 election of Trump — who has continued as recently as June to insist that their punishment was just — has galvanized public opinion about this specific case.

In 2014, after New York City settled with the Central Park Five, Trump — then a reality TV star, real estate developer, conspiracy theorist, and serial entrepreneur mulling a presidential run — wrote an angry op-ed for the New York Daily News decrying the settlement. Two years later, as a presidential candidate, Trump reiterated his insistence that the Central Park Five “weren’t angels” and deserved their punishment, even if they did not commit the crime for which they were convicted.

What happened to the Central Park Five now aligns with what audiences see in the news every day. Seeing how little things have improved is enraging.

Casting some as villains, others as saviors

When the Central Park Five were arrested and charged, the narrative sold to the broader public about them — not just by police or figures like Trump, but by the mainstream media — reads, from the vantage point of 2019, as shocking and dehumanizing.

“WOLF PACK’S PREY” read the headline of an April 21, 1989, New York Daily News article. On April 22, the New York Post described how “packs of bloodthirsty teens from the tenements, bursting with boredom and rage, roam the streets getting kicks from an evening of ultra-violence.” This was “wilding,” a term that was picked up across American media to describe the events of the assault. On April 23, for the New York Post, columnist Pete Hamill described the attacks in terms that read as overtly racist now:

They were coming downtown from a world of crack, welfare, guns, knives, indifference and ignorance. They were coming from a land with no fathers. ... They were coming from the anarchic province of the poor.

And driven by a collective fury, brimming with the rippling energies of youth, their minds teeming with the violent images of the streets and the movies, they had only one goal: to smash, hurt, rob, stomp, rape. The enemies were rich. The enemies were white.

In her landmark 1991 essay on the case, “Sentimental Journeys,” Joan Didion wrote that because attacks, particularly in Central Park, often made the news, the feeling of fear among well-off, white New Yorkers was pervasive at the time. And the media narrative about the boys, drawn from the police’s version of events, fit right in with that fear: “The apprehension of such danger, exacerbated by street snatches and muggings and the quite useful sense that the youth in the hooded sweatshirt with his hands jammed in his pockets might well be a predator, had become general.”

As the New York Times’s Manohla Dargis noted in her 2012 review of The Central Park Five, even African Americans and prominent left-leaning columnists, who often were highly skeptical of police, had accepted the NYPD’s account of what happened. If you were following the case in 1989, she wrote, “You knew that the unfolding story and New York were more complex than any tabloid headline. You knew life was shaped by race (as it always is), but also by class and by sex. And you also knew that the fears that gripped so many were not necessarily hysterical but grounded in lived, sometimes terrifying experience.”

And regardless of intent, the media fanned that flame. For instance, the word “alleged” rarely appeared in coverage of the case, as Marshall Project president Carroll Bogert pointed out in a recent LA Times op-ed. The Marshall Project is a nonprofit news organization that focuses on media coverage of crime and criminal justice. “We operate under the assumption that media coverage does change public opinion, and that the information that people get through their eyes and ears is what helps them make decisions, like voting decisions,” Bogert said in a phone interview.

“For politicians, the media are often like a stand-in for public opinion,” Bogert continued. “If a politician sees a lot of media coverage that’s going one way, then the assumption is that the public believes that, and the politician has to be responsive to that.”

Andrew Burton/Getty Images

And indeed, politicians in New York City capitalized on the language used by the media about the case. As David Dinkins ran against incumbent Ed Koch in the 1989 Democratic primary for mayor, he made “anti-wilding” legislation part of his appeal to voters, and it worked. Two months later, he beat US Attorney Rudy Giuliani in the general election, promising to be “tough on crime.” (Dinkins was also New York’s first black mayor.)

Foregrounding in dramatic fashion the startling way the media covered the attacks in 1989 and 1990, When They See Us rewrites the narrative for 2019 perspectives, following the lead of some journalists who covered the case in real time and reconsidered the way it was handled after the convictions were vacated years later. By the time the boys reached the courtroom, the idea that they’d confessed to the crimes was inextricably linked with the media’s depiction of them as animals, hungry wolves whose enemies were white people. That kind of storytelling has power.

But in DuVernay’s rendering of the story, that’s sharply contrasted with the boys themselves. The actors playing the Central Park Five as teenagers really seem like teenagers, as opposed to the vicious predators the news made them out to be.

They’re depicted as kids caught up in a large group who were, indeed, roaming around Central Park that night. Some of the large group attacked joggers. But the series makes it clear that these five boys, who were all between the ages of 14 and 16 when they were arrested, didn’t rape anyone. It’s hard to imagine them doing anything of the sort, and extremely difficult (and understandable) to watch them break down and “confess” to the rape in response to the confusion and stress of the interrogation.

Atsushi Nishijima/Netflix

Burns noticed this filmmaking choice as well, and found it to be accurate to what she knew of the Central Park Five from years of research and making her documentary. “They were kids,” she said. “It’s one thing to say, ‘Oh, well, Donald Trump took out those ads. That was terrible. They were wrongly convicted.’ But this makes it more personal — to see them played by actual children, to have to confront the fact that this is what happened to them.”

The court of public opinion steps in

In one sense, then, the responses of the people who followed the trials in 1990 and the people tweeting #CancelLindaFairstein and signing online petitions in 2019 have one thing in common: They’re influenced by good storytelling. But one of the stories in question follows at least some verifiable facts — the boys didn’t rape the jogger, and Fairstein and Lederer were undeniably involved in putting them in jail — whereas the other turned out to be, in some key respects, entirely fabricated.

Still, why it that Fairstein and Lederer have become the scapegoats for what seems a systemic and cultural problem? What made them — and not the police or media figures — the target?

About two weeks after When They See Us debuted, Oprah Winfrey taped a one-hour special about the series with DuVernay, the cast, and the five men who made up the Central Park Five. It premiered on Netflix on June 12.

DuVernay told Winfrey that she believes Fairstein is fairly depicted in her film, and that its wide reach has brought about new consequences. “I think it’s important that people be held accountable,” she said. “And that accountability is happening in a way today that it didn’t happen for the men 30 years ago.”

Burns agrees. “There is this sense that there haven’t really been any repercussions for any of the people who were involved in these wrongful convictions,” she said. For example, it was New York City that paid to settle with the five men — meaning, the taxpayers — rather than the people responsible for the wrongful convictions.

That a lot of the anger has been directed toward Fairstein also makes some sense, Burns says, because Fairstein has repeatedly defended the work of the police and her office. As recently as June 10, in her Wall Street Journal op-ed, Fairstein maintained that though the DNA evidence exonerated the boys’ rape charges, they still should have been held responsible for other charges related to the attacks. “The other charges, for crimes against other victims, should not have been vacated,” she wrote. “Nothing Mr. Reyes said exonerated these five of those attacks. And there was certainly more than enough evidence to support those convictions of first-degree assault, robbery, riot and other charges.”

But Fairstein isn’t legally liable for the wrongful conviction. So the court of public opinion stepped in, says Burns. “Social repercussions become the only avenue that a frustrated public has to say, ‘We don’t want you occupying these privileged spaces of sitting on boards, and being able to go out and have book talks and signings, when you have not only not acknowledged that this was wrong but have not atoned for it in any way, have not worked to make things better, and haven’t even acknowledged that the wrong occurred.’”

Emma McIntyre/Getty Images for Netflix

In her discussion with Winfrey, DuVernay urged the audience to be cautious in thinking justice had been done. “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,” she said. “She is part of a system that is not broken; it was built to be this way.”

Would things have been different for Fairstein in the court of public opinion if she’d offered an apology for the wrongful convictions and become an advocate for change in the system in the years following the exonerations? It’s impossible to say for sure. But calls for powerful figures like Fairstein, and even President Trump, to publicly own up to misjudgments and call for reform are unlikely to abate, even in the wake of the changes to Fairstein’s public stature.

Which was, in the end, kind of the point. Talking to Winfrey, DuVernay explained her mission. “Our real goal is to be able to say, ‘Go America! Let’s do this, let’s change this.’ And you can’t change what you don’t know,” she said. “So we came and showed you what you may not know. And now that you know, what will you do?”

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