The Problem With “When They See Us”
The Netflix four-part miniseries When They See Us, a dramatization of the story of the Central Park Five—the black and Hispanic teenagers convicted in the 1989 rape of a white jogger in New York and later exonerated by a confession and DNA evidence—has revived intense interest in the 30-year-old case, which taps into the current political mood with its heightened sensitivity to racial issues. The repercussions from the series, created by prominent African-American filmmaker Ava DuVernay, have included possibly fatal damage to the career and reputation of former sex crimes prosecutor Linda Fairstein, a onetime feminist hero recast as a racist villain. The 72-year-old Fairstein, dropped by her publisher and pressured into resigning from several boards, has hit back in an interview and a Wall Street Journal op-ed, calling the film a “basket of lies.”
There are real questions about the film’s accuracy. But When They See Us, and the response to it, raises many other questions about perceptions of race and crime, attitudes toward sexual violence, and the way cultural attitudes have and haven’t changed over the last three decades.
The basic facts of the case are well-known. On April 19, 1989, more than 30 teenagers from East Harlem roamed through Manhattan’s Central Park late at night, many of them engaging in various kinds of mayhem such as assaulting and robbing joggers and bicyclists; the police soon entered the park in response to calls from victims and began making arrests. A few hours later, a young woman was found unconscious and naked in a wooded area of the park. An examination showed that the victim, a 28-year-old Wall Street executive and avid jogger, had been raped and savagely beaten, with multiple skull fractures; the initial prognosis was that she would die or remain permanently comatose. (The jogger, who publicly identified herself as Trisha Meili years later, regained consciousness after 12 days.)
The horrific assault shocked the crime-weary city, and the jogger became a symbol of fears of rampant urban violence—fears that were often racially tinged but were also shared by many blacks and Hispanics. Newspaper headlines shouted about a “wolfpack” of teens gone “wilding” in the park (a word that may have come from a misunderstanding of a detainee’s reference to “wilin’,” slang for “hanging out”). In this charged atmosphere, the news that several 15- and 16-year-old boys had confessed to the assault on the jogger and to several other attacks did not leave room for too many questions—even though no physical evidence tied the boys to any of the crimes. (The police described the laboratory tests as “inconclusive.”) In 1990, five defendants—Yusuf Salaam, Antron McCray, Korey (Kharey) Wise, Kevin Richardson, and Raymond Santana—were convicted in two separate trials, and the convictions were upheld on appeal.
In January 2002, when four of the five had already completed their sentences, there was a shocking twist. A man named Matias Reyes, already serving a life sentence for murder and for a series of violent rapes, confessed to the attack on the jogger and said he acted alone. His DNA matched the semen found on the victim; the way in which she was tied up matched the pattern of his sexual attacks; he also provided key details only the perpetrator would know. After reviewing the evidence, the office of New York County District Attorney Robert Morgenthau filed a brief agreeing with a defense motion to void the convictions; a Manhattan court granted the motion in December, and all the charges against the five men were dismissed. The following year, they filed a lawsuit against the city for malicious prosecution, racial discrimination, and emotional distress; that suit was eventually settled for $41 million, with an additional $3.9 million from New York state.
There are still those still believe the Central Park Five are definitely or probably guilty. It should be noted that their ranks include not only professional racial demagogues like Ann Coulter (and the current president of the United States) but the now-retired lead detective on the case, Eric Reynolds, who is black. The “guilters” believe that Reyes either acted in concert with the five defendants—despite his overall pattern of lone-wolf crimes—or raped and beat the jogger after she was assaulted by the boys. They claim that at least some of the boys made incriminating statements that clearly weren’t coerced—including an alleged statement by Wise to Melody Jackson, a friend’s sister, that he had not raped the jogger but merely held and fondled her legs during the assault.
These claims aren’t nearly as compelling as they may first appear. Jackson’s disclosure and the odd circumstances under which it occurred—months after the fact, when her brother was being questioned about Wise by the police—is examined in the district attorney’s motion to vacate the convictions. Reynolds’s assertion that Richardson spontaneously admitted the marks on his face were scratches made by the rape victim also sounds less than plausible, given the lack of his DNA under Meili’s fingernails and the peculiar, un-teen-like wording of his supposed admission: “The female jogger did it.” (One possibility is that Richardson said simply “jogger,” referring to one of the male joggers attacked in the park that night, and the cops construed it as a reference to Meili.)
The “guilters” also elide the numerous discrepancies and improbabilities in the boys’ confessions, first discussed (at least in a mainstream venue) in a 1991 New York Review of Books article by veteran writer and journalist Joan Didion. Their accounts of the attack—the location, the scene, the specific acts—did not match, and they named several accomplices who were never charged. Given the totality of the circumstances, to insist on the guilt of these five young men is a blatant affront to the presumption of innocence.
What happened to McCray, Richardson, Salaam, Santana, and Wise was, most of us will agree, a horrific miscarriage of justice. But how and why did it happen? When They See Us offers a simple answer that fits the current cultural moment with its hyper-awareness of race and racial oppression: When white people in positions of power look at young dark-skinned males—especially black, but also Latino—they see potential violent criminals. The point is brought home when the miniseries’ smirking, self-righteously malevolent version of Fairstein (Felicity Huffman) declares that “every young black male who was in the park last night is a suspect in the rape of that woman.”
The link to modern-day racial issues is further stressed when the miniseries highlights Donald Trump’s role in whipping up hysteria about the case with a full-page New York Times ad calling for the death penalty. Meanwhile, Reynolds, the arresting officer in the case, is only briefly glimpsed. And the film makes no mention of the fact that Manhattan Borough President David N. Dinkins, who became the city’s first African-American mayor in January 1990, also condemned the Central Park attack during his 1989 campaign in terms that presumed the boys’ guilt—and even proposed “anti-wilding” legislation in response.
The miniseries’ narrative of white guilt and black innocence also markedly downplays the brutality of the mob that roamed Central Park on that fateful night. The opening scenes show a large group of teenagers strutting boisterously but harmlessly through the park. An assault on a bicyclist is shown in a way that suggests he provoked it (some kids shove him after he zips through the group, almost grazing the boys and brusquely telling them to “back off”). In reality, several cyclists were harassed and attacked. When we do see several youths surrounding a white man who is punched, knocked down, and kicked, even this assault is treated as a kind of fighting back: One of the attackers says, “Bunch of white dudes jumped me in the Bronx last week” and taunts, “Payback’s a bitch.” (The miniseries also stresses that the five boys were not involved in the beating: We see them watching the confrontation in alarm and fleeing when it turns violent.)
A subsequent scene clearly implies that Fairstein is blowing the rampage in the park out of proportion. Assistant D.A. Nancy Ryan, who is treated as the voice of reason here (she later wrote the brief that recommended vacating the convictions), dismisses it as “a dozen kids harassing bicyclists” and, bizarrely, rolls her eyes when Fairstein says that a schoolteacher (John Loughlin) is at the hospital “with a fractured skull.” (The actual Nancy Ryan noted in her 2002 brief that “[t]he other crimes committed on April 19 were grave and inexcusable—unprovoked attacks on strangers, apparently undertaken for the fun of it, which left some terrorized, two knocked into unconsciousness, and one seriously injured.”)
Whether the Central Park Five were guilty of other crimes—in particular, the attacks on Loughlin and another male jogger, to which they also confessed and which they did not deny until much later—is a discomfiting question. Those convictions were thrown out along with the ones for Meili’s rape. Yet, notably, Ryan’s brief does not exonerate them on those charges. Ryan notes that the teens’ confessions to those attacks did not have the same issues as the rape confessions; she even adds that “[i]n interviews in 2002, both Richardson and Santana candidly acknowledged involvement in criminal incidents that occurred on April 19, while steadfastly asserting their innocence of rape.” However, Ryan argued that those convictions at the 1990 trials should also be set aside, since they were hopelessly tainted by the wrongful rape charges and the emotion generated by them.
By contrast, When They See Us takes the unequivocal view that the boys were innocent bystanders. There is enough ambiguity on this point to grant DuVernay the license to tell their story as she chooses to tell it, especially since their faults hardly erase the injustice that was done. But minimizing the April 19 crime spree is an indisputable distortion, and it skews the story: Fear of crime in 1980s New York is seen almost entirely through the prism of racism rather than actual fear of crime.
The miniseries also gives short shrift to the complex racial politics that surrounded the case. As Didion noted in her 1991 essay, those who championed the boys’ innocence before and during the trials did so in a way that was often counterproductive.
For one, their most visible champions—activist preacher Al Sharpton and attorneys C. Vernon Mason and Alton Maddox—had not-undeserved reputations of unscrupulous race-baiters, i.e. mirror images of Trump. (Sharpton rates one passing mention in When They See Us; Mason and Maddox, none at all.)
As it happens, only a year earlier, the three men had played lead roles in another racially charged saga that involved rape accusations against innocent men: the Tawana Brawley hoax, in which a black teenager claimed she was abducted and raped by several white policemen. A grand jury investigation eventually concluded that she fabricated the story to cover up an absence from home and school. As advisers to Brawley, Sharpton, Mason and Maddox accused a New York prosecutor of participating in Brawley’s rape (he later won a defamation suit against all three) and spun bizarre conspiracy theories about a cover-up implicating the Ku Klux Klan, the Mafia, and the Irish Republican Army.
In 1989, the trio was back in the spotlight as advisers to the families of the Central Park defendants; Mason and Maddox also served on the defense team at various times. Their presence boosted public perceptions that those advocating for the boys’ innocence were merely playing the race card. Meanwhile, the defense decision to stress racism more than the problems with the evidence hurt the boys’ chances in the courtroom.
There was also the gender angle. While it’s currently fashionable to portray the 1980s as woefully benighted about sexual violence, it was actually an era of energetic and remarkably successful feminist advocacy and reform carrying over from the 1970s. By the early 1980s, nearly all states had enacted rape shield laws, which barred most inquiries into victims’/accusers’ sexual past; the concepts of “date rape” and marital rape became part of the common language. The Accused, the loosely fact-based film in which Jodie Foster gave an Oscar-winning performance as a barroom gang-rape victim fighting against the “slut was asking for it” mentality, was a critically acclaimed box office hit in 1988.
In this cultural climate, many people who would normally be sympathetic to claims of racial injustice against a group of black boys were alienated by their supporters’ actions that came across as anti-woman. New York’s black-owned media—the newspapers The Amsterdam News and The City Sun and the radio station WLIB—made the controversial choice to use Meili’s name, ostensibly in response to the mainstream press naming the accused teens despite their status as juveniles. The defense tactics also frequently crossed the line into what we would nowadays call slut-shaming, with speculation that the semen found on the victim came from her boyfriend or that her attacker was a man she had picked up for a casual sexual encounter.
It also didn’t help that Maddox had, only a couple of years earlier, earned infamy for his questioning of model Marla Hanson in another sensational case—the trial of two men charged with slashing her face at the behest of her landlord, enraged by her sexual rejection. Maddox not only suggested that Hanson had accused two innocent black bystanders out of “racial hang-ups,” but portrayed her as an ambitious sexual manipulator. At one point, he asked Hanson if the landlord’s characterization of her as a “[C-word]” was an accurate description of her personality. (Really, he did.) To be sure, Maddox’s behavior in the Central Park case came nowhere near such outrageous antics, but memories of that case probably reinforced the impression that the boys’ advocates were using misogynistic tactics against the victim.
In the end, it wasn’t just feminists but black progressives such as New York Daily News columnist Bob Herbert who celebrated the convictions in the Central Park case, won by two female prosecutors—Fairstein and Elizabeth Lederer—as victory for women. “In the end, Yusef Salaam, Antron McCray and Raymond Santana were nailed by a woman,” Herbert wrote after the first three guilty verdicts, praising the “petite, soft-spoken” Lederer as “the jogger’s avenger.”
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Three decades later, the wheel has turned. Fairstein is being skewered in the media and on Twitter as a “blinkered woman of white privilege” and the epitome of “white feminism.” Lederer, too, has taken a hit, surrendering a part-time teaching gig at Columbia Law School under pressure due to fallout from the Netflix miniseries.
While the portrayal of Fairstein in When They See Us is a nasty caricature—exacerbated by the karmic casting of real-life privileged lawbreaker Huffman—the backlash against the veteran prosecutor is at least somewhat deserved. (The sincerity of Fairstein’s current defense is questionable: Her new Wall Street Journal piece asserts that she always fully supported the voiding of the rape convictions but stuck by the defendants’ guilt on other charges, yet in an interview to The New Yorker in late 2002 she insisted that “Reyes ran with that pack of kids” and “stayed longer when the others moved on.”) But the exclusive fixation on racial issues has obscured another lesson of the Central Park Five tragedy and of Fairstein’s reckoning: the feminist war on rape, though an eminently worthy cause, can turn into an attack on the presumption of innocence—especially when questioning the guilt of an accused man comes to be seen as an attack on women.
Current rhetoric, such as a New York Times op-ed by feminist law professor Linda Hirshman, suggests that this conflict primarily poses a risk to “marginalized” defendants such as minority men. But another controversial case from Fairstein’s career shows otherwise.
Seven years after the Central Park rape, a Columbia University Ph.D. student in microbiology, Oliver Jovanovic—who is white—was arrested for allegedly kidnapping, raping and torturing a 20-year-old Barnard College student he had met in an Internet chat room. The female student, later identified as Jamie Rzucek, said that 30-year-old Jovanovic lured her to his apartment after a dinner date, tied her up and held her captive for about 20 hours, during which he sexually assaulted her and tortured her with hot wax and various implements. Since she waited several weeks to report the alleged assault, there was no physical evidence of the injuries she said she had suffered; Jovanovic said that the encounter had been consensual and that he had electronic messages to prove it.
As the case took off, Fairstein personally appeared at Jovanovic’s arraignment and asked for bail to be set at $500,000. She compared the nerdy, bespectacled grad student to serial killers Ted Bundy and Jeffrey Dahmer. (She even suggested that Jovanovic had a stash of Dahmer materials; nothing of the kind ever turned up). She asserted that this was almost certainly not his first attack, generating such tabloid headlines as, “Prosecutor: Cyber fiend struck before” and “How Many More Victims?”
In April 1998, Jovanovic was convicted and sentenced to 15 years to life. Then, after he had been in prison for about 20 months (during which he was violently assaulted by a fellow inmate), the New York State Court of Appeals overturned his conviction, saying that rape shield law had been misapplied by the trial court to suppress emails in which Rzucek discussed her desire for a bondage/sadomasochism encounter and her prior involvement in such activity. What’s more, prosecutors, who were well aware of the existence of this material, essentially allowed Rzucek to lie on the stand: She testified that she had never given Jovanovic any indication she was interested in a BDSM relationship. (Notably, some of Rzucek’s own family members told the press she was a chronic liar who had previously made false accusations of sexual abuse.)
After the ruling, Fairstein announced her intent to retry Jovanovic, giving up only after Rzucek repeatedly asked for postponements, saying she could not go through another trial at that time. In November 2001, the charges against Jovanovic were finally dropped.
Jovanovic sued Fairstein and other officials for malicious prosecution and other misconduct, claiming, among other things, that Fairstein had whipped up a media frenzy around his case for self-promotion not only as a prosecutor but as a crime novelist. The lawsuit was dismissed in 2012, partly on the grounds that there was no proof Fairstein’s inflammatory statements affected the outcome of the trial.
Interestingly, in late 2002, while the Central Park case was under review following the Reyes confession, The Village Voice, the left-wing New York weekly, ran an article discussing both the Central Park Five and Jovanovic (and Patrick Griffin, a white gastroenterologist convicted of sexual assault on dubious evidence but later exonerated) as examples of Fairstein’s descent into prosecutorial “zealotry.”
Today’s progressive left would no doubt regard such parallels as racially insensitive and privilege-blind. And yet the parallels are there. If the frenzy around the Central Park Five tapped into fears of urban crime (primarily by black and Hispanic young males), the frenzy around the Jovanovic case tapped into then-widespread anxieties about perils lurking on the Internet. It’s not for nothing that Jovanovic, typecast as the sinister geek, was quickly labeled “the cybersex fiend.”
The Central Park Five story is a story of racial stereotyping, to be sure. But it’s also a story of many other things: very real crime fears and sex crime panic; media sensationalism and rush to judgment; and, last but not least, prosecutorial tunnel vision and reluctance to admit mistakes. (That tendency also manifested itself when the notorious day care sex abuse cases of the 1990s began to fall apart and prosecutors fought tooth and nail to keep obviously innocent defendants—nearly all of them white and many of them women—behind bars.)
Today, the release of When They See Us and the renewed interest in the Central Park Five case coincides with a new surge of moral panic about sexual violence, stemming from the #MeToo movement. At least part of this message should be a reminder that zeal for such a noble cause can result in new and terrible injustice—and, while the disadvantaged are more likely to suffer as a result, no one is immune.