From Columbia Law Professor and Nation columnist Patricia Williams, cross posted from the May 6, 2013 issue of the Nation:
On April 16, PBS broadcast The Central Park Five, a film by Ken Burns, Sarah Burns and David McMahon. The documentary, based on Sarah’s book of the same name, reviews the hysteria that accompanied the 1990 trial of five young men accused of raping and beating Trisha Meili as she was jogging. Those young men—Yusef Salaam, Raymond Santana, Antron McCray, Korey Wise and Kevin Richardson—were exonerated in 2002 when convicted murderer Matias Reyes confessed, and his DNA was found to match the evidence from Meili’s rape and a string of other unsolved rapes in or near the park.
I sat in on the trial and have written in these pages about my concern that there was no evidence linking the defendants to the crime (“Reasons for Doubt,” December 12, 2002). The footprints and semen didn’t match; there was no blood or mud on the defendants’ clothing; their supposed confessions were factually wrong; and one police officer testified that the wording in three of the written confessions was his own. A forensic expert testified that the hair samples were “more consistent” with Caucasian than African-American hair, but the prosecution successfully argued that this meant they were not inconsistent. Even after their exoneration, prosecutor Linda Fairstein maintained that the young men had to have been responsible for a number of other park muggings that night, but the timeline does not add up, and none of the victims of those muggings were able to conclusively identify any of the defendants. Finally, no less than Bob Herbert called the victim “the single most effective and sympathetic witness I have ever seen.” Sympathetic she surely was. Except that she didn’t “witness” anything related to the defendants; her injuries were so severe she could remember nothing about the attack.
If ever there was a cautionary tale about why our system presumes innocence, this was it. Yet as Herbert has reflected, in 1990 New Yorkers, including himself, “wanted them to be guilty. And when a desire is strong enough it can overwhelm such flimsy stuff as facts and truth. Reality is a funny thing. It is what we say it is.” Alas, that’s not the definition of reality: it’s the definition of a lie, imposed violently, carelessly, with the full power of the state. So what is the takeaway from the ruined lives of five young men?
First, in direct response to the case, Donald Trump mounted a successful campaign to reinstate the death penalty in New York. But the only thing that could have made this miscarriage of justice worse is if the defendants had been executed with the dispatch Trump howled for. We must rethink myths about the infallible catharsis of the death penalty.
Second, the convictions resulted from a corrupt process. In a clear breach of ethics, the prosecution directed the police investigation from the moment Meili was found, even questioning the defendants before they were charged and in the absence of counsel. The police, too, broke more rules on collecting evidence and questioning suspects than I can list here: but, most unusual, they also testified to much of it—it’s right there in the court record.
Worst of all, the defense attorneys were beyond dismal. Only one was a public defender with real criminal experience. Like many unfamiliar with the criminal justice marketplace, the defendants mistakenly believed that a private attorney is better than a (generally more practiced) public defender. At one point in the film, Yusef Salaam recalls his alarm when he saw Robert Burns, his lawyer, sleeping through crucial testimony. Indeed, Burns fell asleep nearly every day. He slept in full view of the judge and the press. He slept so hard, he once woke up and objected to himself. I fault the judge in this: no responsible officer of the court should have allowed Burns to continue. Competency of counsel is a basic constitutional right. At a moment when law, lawyers and even law schools are under political assault, we ignore their role in a democratic system at our collective peril.
Third, why is it still so hard to make this case the focus of serious public reflection? Given that it was one of the best-covered criminal trials in our history, the 2002 exoneration slipped by with relatively little notice. There is also a great deal of hand-wringing about why “no one” saw the flaws in the case when it was prosecuted. This ignores the fact that the courtroom was visited daily by throngs of people who did see those flaws—and proclaimed them loudly: family, friends, neighbors, residents of Harlem. But they were poor and black and relentlessly mocked in the media as deluded apologists. There were also small cadres of activists who marched in the streets for the defendants, most visibly Al Sharpton. But sadly, a number of them, including Sharpton, squandered that spotlight by blaming the jogger’s boyfriend, for which there was no evidence.
Ultimately, identities of raced gender and gendered race mediated who was heard saying what. Bob Herbert, writing for the Daily News, was hailed not just for his belief that the defendants were guilty, but for his exemplary black manhood, a finger-wagging counterpoint to Sharpton. I got calls from reporters who wanted to know what I “as a black feminist” thought but who hung up when I expressed concern about the strength of the case. To worry that the state had arrested the wrong people was called knee-jerk and Afrocentric; it was heard as an indictment of the victim, as siding with race over gender, rather than as a concern that the real perpetrator might still be loose. Even today, I wonder if this film would be having the same reception had a black filmmaker made it. Would a Charles Burnett or John Singleton have had to negotiate suspicion about motives and sympathies that white directors, positioned in not a few minds as inherently neutral and unbiased, do not? That’s a terrible thought all by itself: if in 2013 we remain as quietly committed to the same counterfactual presumptions of veracity, guilt and “reality” that we did in 1990, then this film documents only a terrible history repeating itself over and over again.