Others close to the case say it’s silly to think the city would spend so much on this because of Fairstein’s book sales; they claim the real reason is that people believe the Central Park Five are guilty and acted in concert with the serial rapist who confessed to the crime. An in-depth report from the DA’s office argues that an extensive investigation turned up no evidence of the rapist having ever known any of the five, but some from the prosecution side see a riot in the dark involving a group of young men who did not all know one another. They point to blood on some of the boys’ clothing, though none of this blood matched the jogger’s. Meili lost an extraordinary amount of blood, but they say little got on the boys because she bled from the back of her head. People from the city’s side also point to semen on the boys’ underwear, yet none of their DNA was found on the jogger. Ultimately, though, these evidentiary questions are about attempting to prove their guilt, and people from the city maintain that whether the boys are guilty is not the central question.
“It’s not about guilt or innocence,” says Howard Wolfson, former counselor to Mayor Michael Bloomberg, “but was purposeful judicial misconduct committed?” Michael Cardozo, who was corporation counsel—the city’s top lawyer—under Bloomberg, answered my questions with a written statement: “While we recognize this case has generated strong reactions, our role as attorneys representing the city is to consider the specific, core question raised by these claims: whether there was any deliberate wrongdoing by police and prosecutors. The answer to the question, as shown by all the evidence, including evidence that is confidential and not available to people outside the case, is no. We have an obligation to protect all taxpayers. We are therefore moving forward with the litigation.”
Sources familiar with the city’s case dismiss the notion that the lawsuit has taken a long time or that there is a strategy to slow the wheels of justice. They say this is a case with more than 100 witnesses, three major investigations and hundreds of pages of discovery, so it’s understandable that it has taken this long. There was also a motion to dismiss filed in 2003 that was not decided until 2007. But sources I spoke to maintain that the city has spent more defending the suit than the price of a realistic settlement.
People close to the case also say that even if one accepts, for the sake of argument, that a confession is false, it does not necessarily mean it was coerced or obtained illegally. They say police interrogators took great care to interview the boys in a sensitive manner because they were young. They also feel there are enough consistencies within the statements of the five, and among the total of 39 who were questioned, to justify the conclusion that the boys were involved and that there was probable cause, given the information the police and prosecutors had at the time. As proof of the boys’ violent intentions, they point to the several other assaults in Central Park that night.
The lawsuit could turn on the plaintiffs’ ability to prove a lack of probable cause and to prove actual malice in prosecution. Should the facts have led a reasonable person to believe the accused had committed the rape? Were the confessions the product of illegal coercion? It’s a civil lawsuit, so the jury must weigh whether there is a preponderance of evidence; that is, whether the charges are more likely than not—rather than beyond a reasonable doubt, the higher standard of a criminal trial. If a jury believes the police used threats, lies, false promises and violence to induce the false confessions, then the police and prosecutors could be liable. If the jurors find the police and prosecutors did not induce false confessions through improper coercion, then they could conclude there was probable cause to charge and prosecute and no constitutional deprivation occurred. It’s impossible to predict which way a trial will go, because different eyes have drawn different conclusions from this evidence: A 1990 review by Judge Thomas Galligan rejected the idea of coerced confessions and found all constitutional accommodations had been provided; however, Galligan presided over the original trial, so his report was a review of his own work. In 1993 Salaam appealed his conviction from prison; it was upheld, but Judge Vito Titone dissented, noting significant problems with the interrogation process. Judge Titone’s harsh dissent blasts the work of Fairstein and her officers when they interrogated Salaam, deliberately keeping him apart from three adult family members, including his mother.
“What emerges from these facts is a picture of law enforcement officers who were so anxious to extract a full and complete confession that they did everything within their power to keep this youthful suspect isolated and away from any adults who might interfere,” Titone wrote. “Furthermore, there can have been no other reason for the decisions of Detective [John] Taglioni and Assistant District Attorney Fairstein to prevent defendant’s aunt, ‘Big Brother’ and mother from speaking to him other than to capitalize on his youth and isolation and to assure that he did not receive aid and advice from the supportive adults.”
In an interview with Newsday, Titone said, “I was concerned about a criminal justice system that would tolerate the conduct of the prosecutor, Linda Fairstein, who deliberately engineered the 15-year-old’s confession.” He added, “Fairstein wanted to make a name.”
It was not the first time the NYPD of that era had been charged with cutting corners when they thought someone was guilty. The 1994 report of the Commission to Investigate Allegations of Police Corruption, commonly known as the Mollen Commission, concluded that falsification was common. The report spoke of “a deep-rooted perception among many officers of all ranks within the department that nothing is really wrong with compromising facts to fight crime in the real world.” As one dedicated officer put it, police officers often view falsification as “doing God’s work”—whatever it takes to get a suspected criminal off the streets. This attitude is so entrenched, especially in high-crime precincts, that when investigators confronted one recently arrested officer with evidence of perjury, he asked in disbelief, “What’s wrong with that? They’re guilty.” But what if they’re not?
IV: A SEMBLANCE OF JUSTICE
Some believe this case asks hard questions about what sort of city New York is—and what sort of society we are. At times it seems we are a nation that can overlook the destruction of black bodies and black lives while ensuring all possible protections for white citizens. It seems a stretch to think that, even though the wrong people were convicted despite a paucity of physical evidence, everyone in law enforcement was working with the best of intentions. But maybe they were. In New York the entwined issues of race and inequality never really go away. In recent years, they have resurfaced around the police practice of stop-and-frisk, which in large part decided the Democratic mayoral primary in favor of Bill de Blasio. De Blasio, New York’s mayor since January, will have a great deal of influence over the future of the Central Park Five.
Many people close to the case say Mayor Bloomberg was among those who believed the Central Park Five should not be remunerated and his recalcitrance is why the suit has dragged on for years. The de Blasio administration may approach this matter differently. In a phone interview in February 2013, early in his mayoral campaign, de Blasio told me he sees the Central Park Five as emblematic of some of the racial inequalities he talked about in his campaign. “Such willful miscarriage of justice by folks who worked for the city,” he said. “It’s unacceptable what’s happened to these now not so young guys, and they deserve some semblance of justice.” Asked what he would do about it if he were elected, de Blasio, a former public advocate in the Bloomberg administration, said, “I’ve spent four years of my life in the mayor’s office, and I cannot believe this couldn’t be solved by a mayor. This is the kind of thing that in the first week in office, if I were mayor, I would order a settlement. I think if the mayor says that it has to be resolved, it’s solved. The Law Department doesn’t tell the mayor what to do; the mayor tells the Law Department what to do. I certainly would order a settlement immediately.” In October, after winning the all-important Democratic primary, he said, through his communications director, that he stood behind those words.
To Salaam, Richardson, Santana, Wise and McCray, the men trapped in this Kafkaesque journey, the new mayor’s promise must seem like the glimmer of an endpoint. But even if the lawsuit somehow finds its way to a settlement, the men can never really move on. They speak of themselves as living members of history—Salaam calls the group “the modern Scottsboro Boys.”
None of them envisions a future that takes them far away from this terrible episode in their lives. Salaam says if the city were ever to pay him, the money would go to help others who are wrongly convicted. “A lot of people think we want to be sitting on some beach somewhere sipping mai tais,” he says. “The reality of the matter is this will allow us to continue to fight against these types of atrocities. We don’t want to see 10 years from now another Central Park Five. We don’t want a Trayvon Martin in New York City. If you have money, you can choose to join the cause. You can help pay for people’s legal defenses. It would make it a lot easier for me to be an activist.”
Santana echoes this sentiment. “We feel like the Central Park Five have to transcend [our fate] and go into a different direction to help people with programs to take care of our kids in Harlem, something that could get them off the streets. In 1989 nobody wanted to invest in us. We have to give back and invest in them. Somebody has to look out for them.”
Central Park was the starting point of their journey, but understandably the men say they don’t go there anymore. “And it’s a shame,” says Richardson, “because it’s a park that’s open to the public. But I am not comfortable whatsoever. My mother to this day lives across the street, but I don’t want to walk next to the park. I’ll just go in a different direction.” Wise longs to leave the city, the only place he’s ever lived, longs to get away from the pain of being here. He dreams of moving an hour into New Jersey, which he speaks of as if it’s far away. He says he’s been stopped and frisked more than 10 times, and he senses a vendetta against him by cops who want to harass him or catch him doing something. Even when he’s surrounded by his legal team in the middle of working through the case, he doesn’t feel safe because the lawyers on both sides and the psychiatrists keep asking him to relive it, to talk about how he feels. He can’t escape it; it remains present in his life. And the deep dives into his past keep him bitter.
“Shooter bias” is the principle, established in studies, that people are more likely to say they see a gun in the hand of an unarmed black person than in the hand of an unarmed white person. This is like the notion of the crimalblkman (from “criminal black man”), a word coined by Katheryn Russell-Brown, a law professor and director of the Center for the Study of Race and Race Relations at the University of Florida’s Fredric G. Levin College of Law. The word highlights how blackness and criminality have become synonymous in the public consciousness—and how black men are too often assumed to be guilty until proven innocent. These sorts of deadly assumptions allowed stop-and-frisk, a policing policy that encouraged police to place their hands on as many young black and Latino men as possible. For years in New York hundreds of thousands were stopped each year. More than 90 percent were found to be not guilty of any crime, yet they had to submit to a humiliating form of profiling before they were let go.
In 2013 a federal judge found the policy to be unconstitutional, but in countless incidents black men are approached with the presumption of guilt. This is perhaps why Trayvon Martin died. George Zimmerman spotted him in the distance and told a 911 dispatcher that Martin was up to no good, on drugs and had his hand on his waistband, implying he had a gun. It turns out he did not have a gun, was not a criminal and had just a trace amount of marijuana in his system. But Zimmerman’s assumptions set in motion a deadly chain of events. The Central Park Five were caught in a web spun from the assumption of guilt. And no matter what happens—even if the Central Park Five are paid millions—their lives were tragically altered because they were assumed to be guilty. Indeed, no matter what happens to them, there is no reason it couldn’t happen again today, no reason another group of black and Latino boys couldn’t be rounded up for a crime they didn’t commit, presumed guilty despite a dearth of evidence, convicted amid a heightened sense of civic tension and then marched into prison. It could happen anywhere in the country, and without a stroke of luck that brings the truth to light, these boys could languish in prison for a long, long time. And who would believe them?