There’s a bit of a trick lurking beneath the surface that you might miss if you’re unfamiliar with how such things happen when someone, say Ava DuVernay, produces a Netflix show about a highly, and rightly, volatile case like the Central Park Five.
In an interview with The Daily Beast, Ms. DuVernay said she reached out to Ms. Fairstein before she wrote the script. She said she asked if they could have a conversation so Ms. DuVernay would have Ms. Fairstein’s perspective in her head. According to Ms. DuVernay, Ms. Fairstein said she would sit down only if certain conditions were met, including approval over the script. Ms. DuVernay said no, and the conversation didn’t happen.
For someone as media savvy as Linda Fairstein to ask for script approval sounds ridiculous. There was no way she would get it, though there is good cause for concern given that the script for the new Netflix four-part series “When They See Us” was not only going to be a “dramatization,” but one that would certainly place the blame on Fairstein, who has gone from law enforcement hero as chief of Sex Crimes in the Manhattan DA’s office for 25 years to adored mystery writer to . . . the racist primarily responsible for convicting five young black men against whom there were no evidence save their botched false confessions.
But she also knew that any “perspective” she offered would be used against her, edited, re-contexted, and there was nothing she could do to prevent it.
It’s one thing to hold Fairstein accountable for what she actually said, actually did, and actually failed to do. To do so requires people to see and appreciate the times at which it happened. It was a hard time in New York City, and there was substantial fear and loathing of young minority men who had seized control of Central Park at night, including the night when a white female jogger was raped, beaten and left for dead.
To say there was pressure to close the case is obvious. To say a city was outraged that this happened is obvious as well. To say that Fairstein directed detectives to round up black kids, however, is not fair. It’s not fair because it’s not true, and DuVernay can’t possibly provide a source for her manufactured imputation of racism to Fairstein, which nails DuVernay’s perspective today but exists only in her wildest fantasy.
In Ms. DuVernay’s emotional and intimate series, Ms. Fairstein comes off as the primary villain, with numerous lines depicting her as bent on railroading the young men.
“Every young black male who was in the park last night is a suspect in the rape of that woman,” Ms. Fairstein’s character says early on.
Oh no, young black male? That’s…that’s…baseless. Not only is there no basis for the “dramatization” that it was ever said, no matter how passionately DuVernay wishes it were real and that the words emitted from Fairstein’s lips, but it’s inconsistent with the times. Back then, Central Park at night was known by everyone in New York to be a dangerous place, but it wasn’t just because of “young black males.”
To make it even remotely possible, it would have been black and Hispanic, or more specifically, Dominican, since those were the “young males” that were feared at the moment.* But that doesn’t fit the story, and DuVernay didn’t care enough about how things were in New York in the late 80s to let it get in the way of her “dramatization.”
Jonathan C. Moore, a lawyer who represented four of the five men in their lawsuit, said while “we don’t know for sure what she was saying to the prosecutors or to the detectives,” her depiction in the series “captures the essence of who she was.”
Whether true or not, DuVernay has put words in Fairstein’s mouth, deliberately racist words, because that’s the story in 2019 that she wants to tell. To viewers, these words will become real, as if they were actually said, and Linda Fairstein, who has already resigned from the boards of numerous charitable organizations, been stripped of a writing award, and is now being “cancelled” as the driving force in this flagrantly racism botch of the system. Except they never happened in real life, and only existed in Ava DuVernay’s fantasy until they appeared on the screen.
“So, there must have been another attacker,” she says to Ms. Lederer in the second episode. “One must have gotten away.”
“You honestly believe that?” a dubious Ms. Lederer asks.
“I do if it helps a jury believe what we know is true,” Ms. Fairstein responds.
Holy moly, conviction at all costs, even if it’s a lie to cover up the fact that the DNA found in the rapists semen failed to match any of the five young men? Outrageous! Except this never happened, and is hardly the sort of conversation a prosecutor would have with her chief. This is some fantastical outsider view of evil prosecutors, as no experienced prosecutor (and Liz Lederer was extremely experienced and good at her job) would need such a rookie “explanation” of how to deal with inconvenient facts.
In a statement, a lawyer for Ms. Fairstein, Andrew T. Miltenberg, accused Netflix and Ms. DuVernay of “misrepresenting the facts in an inflammatory and inaccurate manner” and threatened to take legal action. (John C.P. Goldberg, a Harvard law professor and expert on defamation law, said that Ms. Fairstein’s position as a public figure would make it difficult for her to win a defamation suit.)
Whether attributing words to Fairstein, certainly a public figure, that intentionally portrayed her as a racist when there was no basis to do so, is sufficiently malicious to satisfy Times v. Sullivan remains to be seen. But what is clear is that Fairstein had a long and distinguished career both as prosecutor and author that has all but disappeared because of this one case, this one dramatization.
The story of the Central Park Five reflects a tragedy of the legal system, as well as the paranoia of the times in New York City. Fairstein deserves no praise for what happened, or her persistent belief that these five young black men were guilty despite all evidence to the contrary, a remarkably common belief amongst prosecutors and cops whether they nail the right perps or poor random guys who were in the wrong place at the wrong time.
But the condemnation she, the cops, the District Attorney’s office, the judge, the juries, and the public deserve should be based on facts, the reality at the time. Instead, we get a “dramatization,” a fabrication that will delude viewers and tell the story DuVernay wishes happened instead of what really happened. We will walk away no more enlightened about the failings of the system, and instead have a villain to blame for things she never said or did.
*A slightly more “realistic” characterization, even though there would have been no need at all to tell the detectives who to look for, and the investigation wouldn’t have needed or heeded any prosecutor’s direction at that stage, would have been “round up everyone in Central Park that night.” There would have been no reason to mention race as it was a given as to who hung out in Central Park at night.