Every now and again, we get a look, usually no more than a glimpse, at how the justice system really works. What we see—before the sanitizing curtain is drawn abruptly down—is a process full of human fallibility and error, sometimes noble, more often unfair, rarely evil but frequently unequal, and through it all inevitably influenced by issues of race and class and economic status. In short, it’s a lot like other big, unwieldy institutions. Such a moment of clear sight emerges from the mess we know as the case of the Central Park jogger.
She was horribly beaten and raped and left near death on an April night 13 years ago. Five Harlem teenagers who were part of a “wilding” spree by more than 30 youths in Central Park that night were accused of the rape. Other charges included sexual abuse, assault, riot, and robbery. Under intense questioning, they at first confessed, in written statements and on videotape, but shortly thereafter retracted everything—contending that they had been intimidated, lied to, and coerced into making the statements. There was no physical evidence linking them to the crime—no blood match, no semen match, nothing. The victim could not provide an identification of any assailant because the battering left her with no memory whatever of the episode or even of starting out on her jog. But in two court trials a year later, the juries were persuaded by the vivid confessions that each of the five had at least some role in the attack on the young woman. Four—because they were under 16—were sentenced under juvenile guidelines and served jail terms of five to 10 years. The fifth, Kharey Wise, who was 16 and thus classed as an adult, got a sentence of five to 15 years. He came out of prison just last August.
Sometime last winter a serial rapist and murderer named Matias Reyes, who is serving a 33 1/3-to-life sentence in state prison, sought out the authorities, told them religion had entered his life, and confessed that he and he alone had brutalized and raped the jogger. His DNA, it was soon learned, matched that of the semen found in the jogger’s cervix and on one of her running socks.
The public wasn’t told any of this for several months as the shocked “justice system” wrestled with the gargantuan problem.
Manhattan District Attorney Robert Morgenthau, whose office prosecuted the case, began an investigation. It was not as hurried as the first one. Nor were as many detectives assigned to it. Despite the new evidence, the police department, whose leadership is reported to believe still that the five teenagers had at least some connection to the rape, recently started its own investigation. Morgenthau has a court date of December 5 to deliver his recommendations on whether the convictions should be vacated. Unseen backstage, the two assistant district attorneys in charge of Morgenthau’s reinvestigation, Nancy Ryan and Peter Casolaro, are said to be under heavy lobbying from the players who produced those convictions. It’s now a tug-of-war between a fair decision and one that would try to protect some carefully crafted reputations.
State law would seem to favor the five convicted youths. New York’s Criminal Procedure Law—Section 440.10 (1) (g)states that if “new evidence” is produced that probably would have affected the original verdicts, then a court may “vacate” the convictions. There is no requirement for the court to rule that the confessions were coerced.
Back in 1989, the atmosphere surrounding this crime was, modestly put, emotional. The city was crackling with racial aggravation. And the mayoral campaign had begun—David Dinkins, who is black, would be opposing Rudolph Giuliani, who was already showing his disdain for many in the black leadership.
And then, on the night of April 19, in the city’s premier greensward, a white, 28-year-old honors graduate from Wellesley and Yale, a rising star at Salomon Brothers investment bank, was allegedly raped by a group of black and Latino youths who, the authorities said, had thrown her to the ground, stripped her of her clothes, and, as she struggled desperately, bashed her all over her body with a rock and other objects to stop her flailing. Her left eye socket was crushed and her skull broken through to the brain. She lost 80 percent of her blood. The doctors at Metropolitan Hospital, who initially told police her chances to live were almost nil, saved her.
Press coverage was wall-to-wall. The rape wasn’t the only crime committed in the same area that night. During the roving band’s hour or two in the park, a number of cyclists and pedestrians and joggers had also been assaulted. Two of them, both men, were beaten into the dirt and, like the jogger, left in pools of blood. In such crimes, given the media attention and the potential for community anxiety and even unrest, pressure on police and prosecutors is immense. The unwritten edict from on high is: Solve this case instantly and put the perpetrators behind bars. In less than 48 hours, the police had rounded up a dozen or so suspects and reported that a few had already confessed.
A week later, with five youths of color charged, Donald Trump, a loud real estate developer and casino operator whose kinship with either truth or justice has never been obvious, took out a full-page ad in each of the city’s four daily papers urging New Yorkers to ignore those like Mayor Koch and Cardinal O’Connor who had counseled against “hate and rancor.” Of the accused, he wrote: “I want to hate these muggers and murderers. They should be forced to suffer and, when they kill, they should be executed. . . . I am looking to punish them. . . . I want them to be afraid.” Ugliness was in the air.
Linda Fairstein, who controlled the case as head of the Manhattan District Attorney’s Sex Crimes Prosecution Unit, says now: “I don’t think there was any rush to judgment.” Perhaps. But there certainly was a rush.
So intense was the push for confessions that Fairstein, who had sought and achieved celebrity from her sex-crime prosecutions, bullied and stalled and blocked the mother and two friends of one suspect, Yusef Salaam, from gaining access to him. Fairstein’s apparent purpose was to keep the suspect under wraps because she had been informed by the interrogating detective that the questioning was in a delicate phase where Salaam had begun to make some admissions. A short while later, Fairstein realized she could not bar the mother any longer, and the angry parent halted the interrogation.
Thus, unlike the four others charged with the rape, Salaam had not signed any written statement nor given a videotaped confession. The prosecution’s only evidence of what he said at his interrogation came from the detective, Thomas McKenna, who testified at Salaam’s trial a year later. (The case was split into two trials, with three of the defendants grouped in the first one—Antron McCray, 15, Yusef Salaam, 15, and Raymond Santana, 14and the remaining two accused—Kevin Richardson, 14, and Kharey Wise, 16in the second. These groupings were largely maneuvered by the prosecution so as to get information to the juries in the order the D.A.’s office preferred. Both trials were held in 1990 and both lasted two months.)
On the stand, McKenna, a detective for 20 years, openly acknowledged that he had used a ruse on the night after the rape to get Salaam’s “confession.” The boy, McKenna said, at first repeatedly denied having been in Central Park. Then, went McKenna’s testimony, he, the detective, made the following untrue statement to Salaam: “Look, I don’t care if you tell me anything. I don’t care what you say to me. We have fingerprints on the jogger’s pants. They’re satin, they’re a very smooth surface, and we have been able to get fingerprints off of them. I’m just going to compare your prints to the prints we have on the pants, and if they match up, you don’t have to tell me anything. Because you’re going down for rape.”
At this, according to McKenna’s testimony, Salaam blurted, “I was there but I didn’t rape her.” And then, said McKenna, the boy calmly proceeded to admit that he had hit the downed jogger twice with an iron bar and felt her breasts, but said it was four other boys who actually “fucked her.” Salaam identified two of them, Kevin Richardson and Kharey Wise, McKenna testified. He said he didn’t know the other two.
There never were, of course, any fingerprints on the jogger’s running pants.
As described by McKenna, his trick-playing on Salaam is, under present case law, quite legal. As are many other kinds of law enforcement distortions, misdirections, and veiled (and sometimes not so veiled) suggestions that leniency will be granted if the witness is forthcoming. The justice system’s premise for accepting these stratagems is that an innocent person will not falsely incriminate himself.
After the trial, some jurors said the detective had gained credibility with them by being so candid about his methods.
photo by James Hamilton
Probably the most blatant example of the prosecution’s contortions under pressure had to do with distorting the meaning of critical evidence—the DNA. To wit, the D.A.’s office all along, right up to the first trial in 1990, had told the press, and therefore the public, that the DNA results were “inconclusive” because they showed only a “weak” or “faint” pattern—leaving the impression that, while there was no match, the samples likely did belong to one or more of the indicted five, but were merely of poor quality. In fact, the semen samples taken from the victim were absolutely conclusive in ways important to the defense.
The prosecution never did reveal the true DNA results and analysis. The FBI did—at the first trial, more than a year after the crime. The disclosure was made by the witness from the FBI laboratory, Special Agent Dwight Adams. And it didn’t come in his direct testimony as a witness for the prosecution, because Assistant D.A. Elizabeth Lederer avoided any question to him that might lead to the whole truth. However, Adams told the story openly, with no reluctance, in his cross-examination by defense attorney Mickey Joseph.
Adams’s testimony was a major departure from the line the prosecution had spun. Answering Joseph’s questions, the FBI expert said that while there was no DNA match with the blood samples from any of the defendants or possible suspects in the wilding, or the sample from the jogger’s boyfriend, some firm conclusions could be made. True, there was no match, Adams said, but all 14 of the DNA samples could be excluded as belonging to the person or persons who penetrated the victim in Central Park that night. Answering Joseph’s questions matter-of-factly, the FBI expert explained that in DNA testing, it is easier to exclude than to match. He said the weak pattern obtained from the cervix and the stronger pattern found on the sock, though not as complete as needed for a match, were nonetheless clear and strong enough to determine that they definitely did not belong to any of the 14 people whose blood was tested.
The prosecution had known all along that the tests were not “inconclusive.” They knew the results proved that the semen could not have come from any of the five defendants. And yet the prosecution stayed mute.
Adams revealed one more thing on the stand that the prosecution had never told the public: The FBI lab had compared the semen from the cervix and the semen from the sock—and they were from the same person. “They seemed to match,” he said clearly.
In hindsight, the FBI disclosures should have exploded a bomb in the heart of the prosecution case. But the testimony set off no fireworks. The disturbing confessions were what had captured the minds of the jury—and the press.
What Adams’s testimony meant was that only one person, still at large, had ejaculated inside the victim while keeping in mind that since some rapists are not able to function sexually during the attack, the possibility that both Reyes and a temporarily impotent group assaulted her cannot be absolutely ruled out. (The police have lately been searching for possible evidence of a link between Reyes and the five who were convicted.)
But the theory of the crime that the hard, forensic evidence most supports is that the group of five, or some of them, took no part, or no significant part, in the sexual assault. This raises the further possibility or likelihood, as counter-intuitive as this may seem given the confessions, that the five defendants were indeed “coerced” as the law defines the word—which would support their charges that they were intimidated, fed details about the rape, told that their friends had informed on them, and prodded with subtle hints that if they confessed about the others they would help themselves.
Penetration of the victim is a corollary legal issue here. Under the law, penetration is necessary before the crime of sexual assault rises to that of rape. In the case of a group of attackers, penetration by only one person (though, again, not necessarily ejaculation) is enough to implicate the rest of a group in a rape. Otherwise, in this case, the five could only be charged with other crimes committed during the wilding. The indictments did charge them with several other crimes, such as assault, robbery, and riot, but the pivot of the prosecution’s case—and the primary focus—was always the rape.
At the same time, it is important to remember, in any examination of the public record of this flawed investigation and prosecution, that even if these five youths, or at least some of them, were not guilty of rape or sexual assault, they were not innocents—having been convicted of a whole series of other crimes committed in the rampage that night. One need only recall that among those crimes, two men, John Loughlin and Antonio Diaz, were horribly beaten and left bleeding and unconscious.
Timothy Sullivan, then the editor of Manhattan Lawyer and now news editor of the Courtroom Television Network, wrote a book in 1992 titled Unequal Verdicts, the most authoritative account of the trials and the case as it stood at that point.
Sullivan’s book provides most of the now-forgotten details, and he goes behind the scenes a lot. He recounts several instances where the pressure and urgency felt by the prosecution showed through. Here are two of them.
(1) Sullivan writes that Elizabeth Lederer, a respected Assistant District Attorney whom Linda Fairstein had named as lead attorney for the trials, was fully aware of all the pieces the prosecution was missing, one of which was proof or a statement that penetration had taken place. The following excerpt shows some of Lederer’s questioning of Raymond Santana on videotape. Santana has told her that Kevin Richardson, 14, was the only one he had seen “having sex” with the victim.
“Did he penetrate her?” she asked, referring to Richardson. “Did he put his penis inside of her?” “Um hmm,” he confirmed. “Did he say that he had?” “No, he didn’t say it.” Santana scoffed. “But you could tell?” “Yeah.” “How could you tell?” “Because he was havin’ sex with her! That’s what you’re supposed to do when you havin’ sex!”
Lederer persisted. “Well, when he was doing that, was he moving up and down?”
“Yeah,” Santana replied and, rather than wait for her to ask again how he could tell, added: ” ‘Cause I seen it.”
“And so you could see that he was moving,” said Lederer, “thrusting up and down . . . thrusting into her?” “Yeah,” said Santana. “That’s how I knew he was havin’ sex with her.”
What leaps out from this interview is how Lederer, very frustrated, lapses into badgering to try to drag the information she needs out of him. Equally revealing is that Santana never actually says he saw Richardson’s penis inside the victim.
(2) In late November 1990, on the ninth day of deliberations in the second trial—of the two remaining defendants, Kevin Richardson and Kharey Wise—the press and players anxiously awaited the verdict (which didn’t come until December 11).
“If we don’t get a rape conviction,” said Detective McKenna, “we lost the case.” A reporter asked whether a conviction on attempted murder, technically a higher count, would not be considered a victory. No, said McKenna, it had to be a rape conviction. [Detective John] Taglioni nodded in agreement.
Today, none of the players are talking. The D.A.’s office says that the judge handling the reopening of the case, State Supreme Court Justice Charles Tejada, has asked them to make no further public comments until the December 5 hearing before him, when Morgenthau will produce his report and make his recommendations.
One central unanswered question about the rape case falls completely on Morgenthau’s office. Why didn’t he and his people—when they received the FBI’s final DNA results, just before the first of the two trials—ask the judge for a postponement? They could simply have told him they needed more time to identify and arrest the missing man they had now determined, from the semen tests, had penetrated the victim. The judge may have been annoyed with them and chewed on them a bit, but he would almost certainly have recognized the legitimacy of their request and granted it.
Matias Reyes has now confessed to being that missing man, and his DNA shows him to be right. He has also confessed to the rape and beating of another woman two days earlier—on April 17, 1989—in the same northern quadrant of the park. The authorities reportedly have tied Reyes to that April 17 rape as well.
Why, back in 1989, didn’t the authorities look into a possible link between the April 17 and April 19 rapes? If they had, the April 17 victim, a 26-year-old woman who had full memory of the assault, could possibly have identified her attacker early on or provided other critical information.
Was it simply human oversight, to which we are all susceptible, or were they in too much of a hurry? Or was the D.A.’s office actually aware of the April 17 rape, which happened in daylight, and simply dismissed it as different in pattern?
In any event, the prosecutors cannot argue it wasn’t right in front of their collective noses. On April 29, 1989, 10 days after the jogger rape, The New York Times ran a long story about the 28 other first-degree rapes or attempted rapes reported across New York City during the week of the Central Park crime. Fourth on the list was the following entry for April 17, now tied to Reyes.
3:30 P.M. As she walked through the northern reaches of Central Park on the East Side, a woman, 26, was hit in the face, robbed and raped. The suspect escaped.
It’s not uncommon for criminal cases to have a few unknown elements, inconsistencies, or gray areas. But the jogger case was shot through with them. Portions of the defendants’ statements, for example, were flat-out contradictions of the accounts given by their co-defendants.
If the authorities had just paused somewhere along the way and expanded the investigation to deal with some of these gaps, the case would likely have been turned upside down. What really explains the failure to delay the trials? Was it the pressure for quick results? Or the public embarrassment of having to admit gray areas and missing pieces after going too far? Whatever the explanation, the failure to pursue the loose ends surely altered the outcome.
Now there will be a second outcome. And a number of human dramas are playing out in the background.
The five convicted youths, now in their late twenties, and their families are obviously hoping their rape convictions will be set aside. They want to remove the stigma of being listed as sex criminals in the government registry and being required to report their whereabouts to the authorities every three months. They’re surely also hoping their convictions on all the other charges—assault, robbery, attempted murder, and riot—will be vacated as well. City officials are bracing for huge damage suits should any of the counts be overturned. It bears repeating that, even if the five are found not guilty of involvement in the rape, we may never know the full story of what happened that night. It’s not likely we’ll hear any more confessions from the young men or any admissions of wrongdoing from the players on the prosecution side.
The rape victim has said that though she has no memory of the awful attack, she would like to know who did this to her. Her wish for all the answers may not be granted, either. She fought her way back from near-death to resume her post at Salomon Brothers, more quickly than anyone predicted. She’s not the same, though, and won’t be. She suffers from double vision and is wobbly on her feet. She has a hard time walking in a straight line. Of late, she is said to be writing a memoir.
Linda Fairstein, a fiercely competitive, driven professional who was 41 at the time of the jogger rape, has since left the D.A.’s office to write novels about an assistant district attorney who prosecutes sex crimes. When the rape occurred, she raced into the fray to wrest the case away from Nancy Ryan, 39, another upward A.D.A. who was Fairstein’s chief rival in the Morgenthau constellation. Now, Morgenthau has put Ryan in charge of his reinvestigation of the case. Those who know Fairstein say she harbors a dream of succeeding Morgenthau as Manhattan D.A. The latest developments could wreck that dream.
Nancy Ryan is said to be under lobbying siege now from police and prosecutors, former and current, who believe her report will call for the rape verdicts to be vacated. With their reputations at stake, they’re trying to talk her into a less drastic decision. Fairstein is reported to be lobbying Morgenthau. If it all weren’t so real, it would be a soap opera.
Robert Morgenthau, it is fair to say, is a haloed icon in the New York establishment. At 83, he has probably spent more years in public service here than any other active government official. For the past 28 years (he began his eighth consecutive term in January), he has been the Manhattan D.A. Some admirers call him “America’s D.A.” He has been an advocate for good government and has lent his name and time to many worthy causes. That said, he is, like all the other players in this story, a mortal being, not a deity. Like any D.A., he has in his time covered up lots of his office’s mistakes. Like other big-city D.A.’s, he has also swept under a large carpet the misdeeds of myriad well-known personages. They owe him. Not long ago, his office buried an investigation into Charles Gargano, the state’s economic czar, who has a recurring habit of giving big state contracts to people who make big campaign contributions to his friend Governor George Pataki. Some Morgenthau watchers think that he may have been too long with power and that with age, he may have lost his touch.
People sometimes use the phrase “the game” to describe how big systems like government and multinational corporations often get manipulated not for the common good but for the good of the people who run them. It’s not a description of evil, but rather of human nature. It explains what happens when individuals have been doing things a certain way for a long time and come to believe this is always the right way. One symptom is when a player begins to focus only on winning, on trouncing the opposing side. Another is when people become so habit-formed and sure of themselves that they stop asking the question: “Could I possibly be wrong about this?”
The story of the Central Park jogger case may be in large part a story about people in the justice system playing the game—when they should have been doing the right thing.
“Ash-Blond Ambition: Prosecutor Linda Fairstein May Have Tried Too Hard” by Rivka Gewirtz Little
“Marked as the Enemy: Central Park Five Members Speak” by Dasun Allah
“Across 110th Street: Changed Lives Among Central Park Five Family Members” by Rivka Gewirtz Little
“Rage Before Race: How Feminists Faltered on the Central Park Jogger Case” by Rivka Gewirtz Little
Sydney H. Schanberg, an internationally known
journalist, has written extensively on foreign affairs—particularly Asia—and on domestic issues such as ethics, racial problems, government secrecy, corporate excesses and the weaknesses of the national media.
Most of his 40 years in journalism have been spent on newspapers, but his award-winning work has also appeared widely in other publications and media. The movie, The Killing Fields, which won several Academy Awards, was based on his book, The Death and Life of Dith Pran – a memoir of his experiences covering the war in Cambodia for The New York Times and of his relationship with his Cambodian colleague, Dith Pran. For his reporting on the fall of Cambodia to the Khmer Rouge, Schanberg was awarded the Pulitzer Prize for international reporting “at great risk.” He is also the recipient of many other journalism awards – including two George Polk awards, two Overseas Press Club awards and the Sigma Delta Chi prize for distinguished journalism.
Schanberg’s first journalism job came after college and a two-year stint in the army. The New York Times hired him in 1959 as a copy boy and he spent the next 26 years there. After rising through the clerical ranks to the reporting staff and doing local and national news for eight years, he was posted overseas – first to New Delhi, where his reporting included the 1971 war between India and Pakistan. In 1973 he moved on to Singapore, from which he covered all of Southeast Asia, but Cambodia and Vietnam in particular.
In 1975, he was one of a handful of Western correspondents to witness the collapse of Cambodia. In the final days, he filed dozens of stories from Phnom Penh about the advancing communist army and the rising anxiety in the capital, where food was short and the few hospitals overflowed with the wounded. When the Westerners were allowed to leave Cambodia after two weeks of detention, he wrote a lengthy account of the barbaric takeover.
Soon after, Schanberg returned to The Times‘ home office to become the Metropolitan Editor, and, later, a columnist on the opinion page. In 1986, he left The Times to write his column for New York Newsday, which had decided to expand into New York City. There, he wrote on a range of subjects, from police corruption and real estate scandals to the press’s invasions of privacy and the fate of American POW’s still missing in Vietnam.
After a decade at New York Newsday, Schanberg departed to work on his own projects. He lectures extensively, usually on the press, and writes for magazines, including a Life piece on child labor in the third world that led to reforms by Nike and other multinationals in their overseas factories.
To better understand the world of the Internet, he spent a year (1999-2000) as investigations editor for APBNews.com, a website that won several press awards for aggressive pursuit of government records and other in-depth reporting. APB also developed radio and television capabilities before it went into bankruptcy in August 2000 in a wave of dot.com financial failures.
Schanberg’s articles have been reprinted in many anthologies and journalism textbooks. Last year, he taught journalism at the New Paltz campus of the State University of New York, as the first fellow appointed to the James H. Ottaway Sr. Visiting Professorship.
Schanberg was born on January 17, 1934 in Clinton, Massachusetts. He attended Harvard College, graduating with a B.A. in government in 1955. He lives in New York City with his wife, Jane Freiman, a writer and editor. He has two daughters by a previous marriage – Jessica and Rebecca.