In my last post I started my thoughts on Ms Fairstein and the Central Park 5 going through the unsuccessful appeals of the 5 in the early 1990's. This post concludes my thoughts and provides links to reading material. Here is a link to my first post -
http://mysteriesandmore.blogspot.com/2019/06/linda-fairstein-and-central-park-5.html
http://mysteriesandmore.blogspot.com/2019/06/linda-fairstein-and-central-park-5.html
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Over 12 years after the appeals the case unraveled when the convicted rapist and murderer, Reyes, confessed to the assault and rape and his DNA was found in semen samples on the victim. There was no such DNA from the 5.I agree that the police and prosecutors, including Fairstein, had tunnel vision concerning the 5 that had them totally focused on the 5 such that they contorted the forensic evidence at the time of the assault and rape to conclude there was a further unidentified assailant such that it was really a Central Park 6. Rather than consider an individual attacker not a member of the 5 they came up with the implausible 6th attacker.
The case reminded me of a wrongful conviction in Saskatchewan where a false confession was obtained from a teenager, David Milgaard, in the rape and murder of a nurse, Gail Miller. He spent over two decades in jail before the actual killer was identified and ultimately convicted through his DNA.
In 2002 the DA consented to a defence application to vacate the convictions because of the convincing new evidence from Reyes and a full review of the case.
Ms. Fairstein has never admitted the convictions of the 5 were wrong.
She is not alone. The police, especially through the Armstrong report, have not accepted Reyes acted alone in assaulting and raping the jogger. However, their conclusions are based on such conjecture as considering him unreliable as a convicted felon. They speculate on his motives and believe he was the 6th man. Their conclusions lack evidence to support them. They dive into the incredible by suggesting there could have been an attack by the 5 and then a subsequent attack by Reyes. Had Reyes been identified at the same time as the 5 I do not believe the 5 would ever have been charged. The evidence against Reyes is solid.
Overall Ms. Locke overstates Ms. Fairstein’s role and Ms. Fairstein under emphasizes her role.
Ms. Fairstein’s greatest sin is her inability to admit she did anything wrong. She would have been well advised to have accepted there was wrongful conduct in the prosecution of the 5. Her superior the District Attorney, Robert Morgenthau, accepted there were wrongful convictions and unreliable confessions as his office consented to the convictions being vacated. She has a righteousness in real life as pronounced as in her fictional Alexandra Cooper. For Fairstein neither police nor prosecutors can do wrong.
Should the consequences have been as great as they have been for Ms. Fairstein?
I question judging writers for Awards by their personal lives. I favour making awards by assessing the writing not analyzing personal lives.
Ms. Fairstein has been harshly condemned. I agree she was wrong in this case. On how many cases was she right? She is now being condemned for how she approached prosecutions more generally.
I have seen no comparisons to Anne Perry who has had an extremely successful career writing crime fiction set in England. I greatly enjoyed the early William Monk novels.
A few years ago it was disclosed she had been convicted of participating in the murder of a friend’s mother in New Zealand in 1954 when she was 15 and served 5 years in jail. She continues to be published and I have never seen a public campaign against her. I do see a significant difference from Ms. Fairstein in that Ms. Perry was punished and has taken responsibility for her actions. On Ms. Perry accepting responsibility it was less certain for a time as evident in an interview with the New York Times. However, in a 2017 article from the New Zealand Herald she is direct in taking responsibility. She is quoted as saying:
Ms. Fairstein has never admitted the convictions of the 5 were wrong.
She is not alone. The police, especially through the Armstrong report, have not accepted Reyes acted alone in assaulting and raping the jogger. However, their conclusions are based on such conjecture as considering him unreliable as a convicted felon. They speculate on his motives and believe he was the 6th man. Their conclusions lack evidence to support them. They dive into the incredible by suggesting there could have been an attack by the 5 and then a subsequent attack by Reyes. Had Reyes been identified at the same time as the 5 I do not believe the 5 would ever have been charged. The evidence against Reyes is solid.
Overall Ms. Locke overstates Ms. Fairstein’s role and Ms. Fairstein under emphasizes her role.
Ms. Fairstein’s greatest sin is her inability to admit she did anything wrong. She would have been well advised to have accepted there was wrongful conduct in the prosecution of the 5. Her superior the District Attorney, Robert Morgenthau, accepted there were wrongful convictions and unreliable confessions as his office consented to the convictions being vacated. She has a righteousness in real life as pronounced as in her fictional Alexandra Cooper. For Fairstein neither police nor prosecutors can do wrong.
Should the consequences have been as great as they have been for Ms. Fairstein?
I question judging writers for Awards by their personal lives. I favour making awards by assessing the writing not analyzing personal lives.
Ms. Fairstein has been harshly condemned. I agree she was wrong in this case. On how many cases was she right? She is now being condemned for how she approached prosecutions more generally.
I have seen no comparisons to Anne Perry who has had an extremely successful career writing crime fiction set in England. I greatly enjoyed the early William Monk novels.
A few years ago it was disclosed she had been convicted of participating in the murder of a friend’s mother in New Zealand in 1954 when she was 15 and served 5 years in jail. She continues to be published and I have never seen a public campaign against her. I do see a significant difference from Ms. Fairstein in that Ms. Perry was punished and has taken responsibility for her actions. On Ms. Perry accepting responsibility it was less certain for a time as evident in an interview with the New York Times. However, in a 2017 article from the New Zealand Herald she is direct in taking responsibility. She is quoted as saying:
[She] “made a profoundly wrong decision” and that “I was guilty and it [jail] was the right place for me to be.”
Lawyers will err in prosecuting and defending cases. I have greater concern with Ms. Fairstein’s lack of regret over the wrongful convictions and her efforts to minimize her actions in the obtaining of confessions. When she was a prosecutor she would have emphasized no regret and minimization as aggravating factors. Had she accepted her share of responsibility as Mr. Morgenthau accepted responsibility as set out above I would say she should have been a Grand Master, still have a publisher and remain on the boards from which she resigned. Confession and remorse would have been good for both her soul and her reputation.
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Appeal decision from 1993 - https://law.justia.com/cases/new-york/court-of-appeals/1993/83-n-y-2d-51-0.html
2002 District Attorney’s report consenting to vacating convictions -
Decision on application to vacate in 2002 -
Armstrong Report -
New York Times article of November 29, 2018 containing Attica Locke’s tweet:
Rap Sheet post from November 29, 2018 -
2019 reprint of Ms Fairstein’s 2018 letter -
2019 article in New York Law Journal -
Rap Sheet post of June 15, 2019 (there are numerous links in the post to other articles that I have read) -
New York Times Interview with Anne Perry in 1995 -New Zealand Herald article on Anne Perry from 2017-
Thank you, Bill, for your thoughts on this case. It is, among many other things, a stark reminder of how important it is to keep an open mind when investigating. Had there not been the 'tunnel vision' you describe, the outcome of the case might have been quite different back at the time it was first tried.
ReplyDeleteYou also make an interesting (and, I think, well-taken) point about the way we view authors. An author's talent at writing is separate from that author's personal life, whatever that may be. It makes me wonder whether readers do have those 'unforgivable sins' for which they will stop reading an author's work...
Margot: Thanks for the comment. I fear our current world is no more objective than it was 30 years when ago when the initial investigation occurred. Our legal system is not based on suspicion. Decisions should only be made in criminal investigations after a thorough investigation and a careful weighing of the evidence. When a theory of the crime becomes a decision in the midst of the investigation there is a major risk of wrongful convictions.
DeleteOn readers and authors I try hard to evaluate an author's work on my reading of the work and not be influenced by their personal lives. I hope I am not in a minority.
I agree that writing awards should be about the writing, not about the author. However, it is harder to separate the two when big-name authors capitalize on cults of personality. If their 'brand' is built around the perception of their legal wisdom and experience, and those are found to be flawed, and the individual takes no responsibility for those flaws, then their credibility as an author becomes also suspect. I don't know that I would strip the award from her but it would be forever tarnished.
ReplyDeleteJayne: Thanks for your comment. You raise an excellent point with "the cult of personality". Ms. Fairstein has certainly used her legal career in support of her writing career. You are right to say credibility is suspect when there no responsibility is accepted for flaws.
DeleteI agree with your comments about the Central Park 5 case and the fact that Linda Fairstein did not express remorse or apologize for her mistakes. She was zealous in the prosecutions of the innocent 5 young men and has not budged an inch despite Reyes' confession and DNA evidence. There was no forensic evidence against the 5 and there were coerced confessions which did not jibe with each other.
ReplyDeleteIf Fairstein had accepted the wrongful prosecutions and mistakes made and apologized to the 5 and their families and taken responsibility for her mistakes and arrogance (and perhaps some bigotry), things would be different.
But writers and readers objected to her getting the Award and they had a right to give their opinions. And the judges or board of the Award had a right to rescind it. No one is above the responsibilities of being an ethical person, especially one who has some power in prosecuting 5 innocent youth; some were quite young and spent years in jail, wasting their lives.
Fairstein chose to leave the boards. Her publisher must have felt a lot of public pressure to drop her as a writer, but they are responsible to the public, and if there is a public uproar, they have to respond to it. Also, the publisher would not publish a book if it was assessed that it would not sell because readers were angry. And they must have assessed their reputation.
And Fairstein could still have apologized before the film came out by Ava Duvernay. Apparently, she wanted final control of what was in the film! Huh? Who has that in any film except a studio head, producer, director. Not someone portrayed in a film.
All in all, I think she doth protest too much and she reaped what she sowed. The agony of what the 5 went through in prison, at their trials, in the press, etc. can't even be made up through the financial settlement they got. They have to live with the memories and pain. Fairstein doesn't have to do that. Her life was just fine. So now it isn't so fine. Fair play. It still doesn't make up for decades of painful imprisonment and slander.
And the resident of the White House wanted the 5 executed, even after they were exonerated.
Kathy D.: Thanks for a remarkable comment. I wanted a day to reflect on what I would say in reply.
DeleteI have difficulty in understanding why she did not accept there were wrongful convictions and that regret was in order. Lawyers are hardly immune from error. She would have made mistakes before and after this case as a lawyer. If she has never admitted being wrong as a lawyer she is truly living in a world of her own.
I agree we all have a responsibility to lead ethical lives. I am troubled if awards are defined by whether an award winner is leading an ethical life. Should one incident define a life? What constitutes an ethical life can be debated.
The only part of your comment with which I disagree is concerning the publisher. The right to free expression - to be offensive to some or many or most - is a hard earned right. For publishers to self-censor and deny publication because readers were angry would prevent the publication of many writers. If a publisher bases publishing decisions on its reputation it is no advocate of free speech.
I had not read of her desire for "final control". It sounds like her.
I agree her consequences are modest in comparison to the 5. Humility is a word with which Ms. Fairstein appears unfamiliar.
As for the WH I am not surprised. Do you think he read more the headlines about the case?
I have little to add to the comments above, or to your summary of the facts except to say that another difference between Anne Perry and Linda Fairstein is that Perry was a child while Fairstein was in a position of power.
ReplyDeleteThoughtful analysis, Bill.
Ilonka: Thanks for your comment. I appreciate your thoughts. You raise an excellent point on the distinction between teenage and adult responsibility. As I read about American court cases concerning teenagers I am often frustrated by an attitude that does not consider teenagers are not yet mature.
DeleteThanks for another thoughtful post Bill. It's hard to disagree with your conclusions. I doubt that Fairstein will ever be able to admit to her failings in respect of the 5, a bit of public vilification is still a small price to pay.
ReplyDeleteCol: Thanks for the comment. I expect Ms. Fairstein shall go into the future protesting she was wronged. Negative consequences shall continue.
DeleteJust read several articles that said that Linda Fairstein didn't want producers talking to the "exonerated 5" as they call themselves if they were talking to her.
ReplyDeleteAlso, I see in this article the 125,000 people signed a petition asking that Dutton no longer publish her books. I think public protest is the main way that things change and people's voices of opposition are heard and also that the powers that be learn how these people feel and themselves evolve in their thinking.
This is not a fair criminal justice system as Michelle Alexander says in her brilliant book, "The New Jim Crow." People are locked up for years, many unjustly, many for minor crimes. The Innocence Project has helped to get wrongly convicted people out of jail and off death row.
And this is one huge example of how five people's lives were ruined and that of their families because of the injustice of this system. Fairstein was one part of it as this article explains (attached link) There are prosecutors who take responsibility and listen and review evidence and make changes and release innocent people. That happened here, but despite Fairstein, not because of her.
And I might add that racism is very entrenched in this system as can be seen by who is in prison in disproportionate numbers, which communities.
https://variety.com/2019/scene/news/when-they-see-us-director-ava-duvernay-exonerated-five-talk-linda-fairstein-backlash-during-oprah-special-1203237772/
KathY D.: Thanks for your comment and the link to Variety.
ReplyDeleteI continue to fear the consequences of not publishing authors about whom there are protests. I can easily see protests of 125,000 or more protesting authors who support the causes of progressives and liberals. It is not long ago many books were banned by conservatives. Certainly protest about books and authors a person dislikes but differing views should still be published.
I agree no justice system is perfect. It is appalling how many Americans are in jail for relatively minor offences. It would not happen in Canada.
In my posts I avoided talking about systems of justice. It is a multi-book long topic. My life as a lawyer has been, for most of my career about individuals. And if we are to talk of systems in relation to the 5 we inevitably to get into what else they did that night. I did not and do not want to get into those charges.
In Canada we have disproportionate numbers of indigenous peoples in prison. I consider the reasons less related to the criminal justice system and more connected to societal issues.
Very interesting and thoughtful post, Bill. I agree on separating author's writing from their personal lives, but still I would have a hard time reading one of Fairstein's books now. (I have not read any of them yet.)
ReplyDeleteTracyK: Thanks for the comment. Every reader chooses and rejects authors for their own reasons. I try to do it on what I anticipate will be the quality of the book.
DeleteI think that all that the public has to protest injustices in the criminal justice system is their voices. They don't have control over cases or meting out justice or preventing/ending injustices -- that is, not unless they protest. It's all that the people have -- their voices and their feet. And, in the case of convictions and imprisonment, good attorneys are needed, too.
ReplyDeleteI just read about the Elaine 12, 12 Black men convicted and sentenced to death in Elaine, Ark., for defending their community from racist terror in 1919 -- in what was known as Red Summer because it was so bloody. I just learned about this as it's the centennial of that terrible period.
But I also learned that in addition to public protest by the NAACP and other civil rights groups and the Black press, that the Elaine 12 had a terrific attorney provided by the NAACP -- Siprus Africanus Jones. He got half the convictions overturned and got indefinite furloughs for the other six. So there was justice in the end.
But if there hadn't been public pressure applied and a press that was telling the truth, as well as a good lawyer, those poor men might have been executed.
The Scottsboro case is another famous case of injustice which got tremendous public support. Results were mixed for the nine defendants.
I think the 125,000 petition signers had every right to sign those petitions. Then Dutton executives had to decide what to do. Probably the bottom line was a big factor. Would they lose readers, respect, sales? Would it affect other book sales and their reputation? I'm sure they took all into consideration.
No one is stopping Fairstein from self-publishing or from speaking. But a company made a decision, whether due to their conscience or their profit margins.
I believe people's protests can make change as the Civil Rights Movement showed and the women's movement and many more. And sometimes pressure has to be put on companies as well as government entities.
Kathy D.: Thanks for the comment.
ReplyDeleteIf someone is going to protest they should make an effort to learn the facts as you do in your comments.
Protests have a role in getting cases reviewed and appealed but I fear mob mentality. No system is perfect but I have more confidence in a judge and jury than I do in a group who has not seen the witnesses and heard all the arguments.
I will continue to disagree with you on publishers. Making publication decisions based on public opinion frightens me. I do expect to see 125,000 conservative Americans protesting a liberal author in the next few months.
Had a member of the 5 written a book before the convictions were vacated I expect there would have been protests over a criminal profiting from his crime. Laws have been passed in jurisdictions such as Saskatchewan to prevent criminal authors being paid. I believe those imprisoned should be able to write that they were wrongfully convicted. I do not think a public reaction against a publisher of such a book should prevent publication.
"Ms. Fairstein’s greatest sin is her inability to admit she did anything wrong."
ReplyDeleteWhy is this so prevalent in the law and medicine? What is it about ego that prevents lawyers and physcians from recognizing the fundamental concept of being human also includes the concept of fallibility? These are puzzles that continue to mystify me more than anything I read in fiction. It is frustrating and often infuriating to be surrounded by people in the hospital where I work who are exactly like Fairstein in their inability or refusal to admit to making mistakes. It is costly to everyone on so many levels not just the financial ones that seem to be of most importance in hospitals these days. Often lives are ruined in the aftermath of these egos that cannot withstand the minor bruising that would come from saying "I was wrong. I own up to it." In fact, to do so is the braver act and the wiser choice.
John: Thanks for the comment. My general observation of the medical profession is that it has become engrained that you never admit wrong. It must be proven independently after being defended up to and after judgment. With regard to lawyers I see some recognition of responsibility for mistakes.
DeleteMore specifically, in prosecutions where Ms. Fair-stein spent most, if not all of, her legal career there was a long established principle that prosecutors did not see themselves as seeking victory but presenting the facts and law in support of conviction. They were neither winners nor losers. That attitude especially in America has changed as prosecutors styled themselves as advocates for victims and out to win convictions. I wish, but doubt it will happen, that the public would protest in favour of prosecutors returning to an approach where acquittals are not defeats and convictions are not victories. Had Ms. Fairstein that attitude admitting wrong would not be a problem.
Thank you Bill - I have dipped in and out of this case and the ramifications since it first arose but obviously being a long way off and its being a foreign justice system I wouldn't be certain of all my facts, let alone the legal nuances. Your two posts contain the facts to make me feel better-informed. Conclusions are, as we can all see, more difficult and of course I don't have the answers!
ReplyDeleteShe comes over as an arrogant woman with an inferior sense of right and wrong - ironic considering the post she held.
In my experience (in much less important situations!) if you admit you are wrong and apologize convincingly, it is almost embarrassing by how much people will accept you and forgive that - I have been in the position of almost saying 'No you shouldn't be so nice to me, I did make a mistake!' But it certainly makes everyone feel better, and is better for us all as people. A pity she never learned that along the way.
Moira: Thanks for the comment. I like your phrase "an inferior sense of right and wrong". I anticipate using it in the future with attribution to yourself. I know it is hard to say I was wrong. I agree that admitting wrong is powerful. Within the Catholic Church going to confession is a vital part of our faith. Your example reflects the power of taking responsibility.
DeleteWithin the judicial system I see every day people admitting they are wrong by pleading guilty to crimes they have committed. For many admitting fault and expressing remorse is the most important part of the sentencing process.
Ego is an amazing thing. I have known people for years, decades, who would not admit being wrong and apologizing, when so much was at stake.
ReplyDeleteI think everyone has to look at the big picture, society, one's family, friends, groups, and think how one's taking responsibility would ameliorate an injury, or at least help to do so.
There are so many times that an individual has to look at the bigger picture and be honest with how they conducted themselves. If they made mistakes, then taking responsibility for those supersedes ego or the self. On to some humility, honest self-examination and thinking of the greater good first.
I guess on the publisher, I see things as someone who sees constant injustices in this legal system from long sentences for minor crimes to the death penalty to the use of long years of solitary confinement, considered torture by human rights groups.
When public pressure can make a difference and overcome (or try to) a real injustice, then I say "Brave." Then there are the other thousands of wrongs that need to be made right which good lawyers and prisoners' rights organizations and humanitarian groups work on every day.
Kathy D.: Thanks for your comment. Ms. Fairstein heard many defendants as a prosecutor admit they were wrong and be punished and move ahead in life. I have yet to read or hear she has engaged in honest self-examination. She has set an example of how not to respond when you are wrong.
DeleteAgree with that comment. What could Fairstein lose by apologizing? Maybe she thinks she'd lose her reputation as a tough prosecutor of sex crimes. Or maybe she just believe what she has believed and cannot change despite the evidence.
ReplyDeleteDon't know if it's ego or inflexibility or refusing to see reality or bigotry. And the inability to evolve based on evidence, as well as the unwillingness to take any responsibility here.
Well, she doesn't see the big picture, the need to look at the harm caused these 5 young men and the big social picture of what is called by many the criminal injustice system.
Some people are just dug in and won't change. She's right and that's all she sees. No willingness to change and see what the needs of society are. She has caused so many people to be very angry and think justice is impossible for the many unfairly incarcerated because of people like her.
Well, my attitude is tough: She made her bed and now has to lie in it. It's her own doing.
This is why the Innocence Project is so important and other groups like it. But it's inadequate for all of the wrongs, just isn't large enough to deal with them. The ACLU does what it can. RAICES helps migrants with legal cases.
Lots of good groups around with dedicated lwwyers and legal workers.
But Fairstein is not on their side. She has shown how she thinks. And that's the last time I'm even thinking about her.
I think the Ava Duvernay film has opened a lot of people's eyes and raised consciousness about injustice. So, good for her.
The role of film is so important these days.
Kathy D.: Thanks for the comment. A good penance for Ms. Fairstein would be to go to work with the Innocence Project. She has a wealth of experience in criminal prosecution. Thinking about criminal cases from another perspective would be good for her. I expect she would bring the same fierce advocacy to working for the wrongfully convicted as she did in seeking convictions.
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