Former D.A. Linda Fairstein is suing director Ava DuVernay and Netflix claiming the 2019 award-winning four-part series, "When they see us", paints her as "a racist, unethical villain who is determined to jail innocent black kids at any cost".
Netflix has countered by calling the lawsuit "frivolous" and "without merit". [It] is fact-based and insisted that the series, and its creators, will be "vigorously" defended.
The series tells the story of the wrongly imprisoned Central Park 5 youths accused of raping a jogger in 1989. Fairstein, who was the head of the district attorney's sex crimes unit at the time and since found success as a crime novelist, was instrumental in their conviction.
The complaint claims that her portrayal in the series is based on a series of "complete fabrications" that are "readily contradicted by evidence in the public record".
"Throughout the series, Fairstein is portrayed as making statements she never made, taking actions she did not take – many of them racist and unethical, if not unlawful – in places she never was on the days and times depicted" the suit reads.
“Each time one of these cases occurred, her books probably went flying off the shelves”
"On a number of occasions, Fairstein is portrayed using inflammatory language, referring to young black men as 'thugs', 'animals', and 'bastards,' that she never used."
Fairstein was dropped by her publisher after resigning from the boards of two non-profits.
She is now seeking damages after claiming her career is over because of the series along with an apology and a disclaimer added to episodes which she also wants edited to remove offending portions.
"Fairstein wanted to make a name," appellate court judge Vito Titone later said. "She didn't care. She wasn't a human."
The convictions were later overturned when convicted rapist Matias Reyes confessed to the crime in 2002.
Zealot. Crusader. Probably not labels that former chief of the Manhattan District Attorney's Sex Crimes Unit Linda Fairstein would use to describe herself. Her preferred image is more likely the jacket-copy version of her career used to tout her bestselling mystery paperbacks (usually accompanied by an ultra-blond, airbrushed photo), which describes Fairstein as the "famed" prosecutor best known for her involvement in trying the "Preppie Murder" and Central Park jogger cases. But that might not sell books these days.
Following a confession to the Central Park attack by imprisoned serial rapist Matias Reyes, whose DNA links him to the brutal crime, the jogger case seems to be cracking open to reveal prosecutorial failures. Worse, this appears to be the third flub of a major case from the glory days of a prosecutor who was once a Clinton administration candidate for United States Attorney General and who is still considered by some a contender to replace current district attorney Robert Morgenthau should he retire.
The first case to come apart was that of the former gastroenterologist Patrick Griffin, who was convicted in 1996 of oral sodomy on a sedated patient during a colonoscopy and sentenced to up to 10 years in prison. His conviction was overturned in 1998 and he was acquitted in retrial in 2000 after judges ruled that crucial evidence was withheld. After a retrial, he was acquitted, but not before losing his medical license, which he has yet to regain.
“Each time one of these cases occurred, her books probably went flying off the shelves”
Then came Oliver Jovanovic, the Columbia University microbiology Ph.D. candidate, dubbed the "cybersex" attacker, who was convicted and sentenced to 15 years to life in prison for kidnapping and sexually torturing a Barnard undergraduate. After he served nearly two years of his prison term, an appeals court overturned his conviction in 1999, again saying that crucial evidence was withheld during the trial that could have shown Jovanovic and his accuser had a consensual sadomasochistic relationship, or that she simply fabricated the story. Morgenthau dismissed the case before a pending retrial in 2001.
As for the five men who were convicted in the Central Park case as teens and literally grew up in jail, Morgenthau says he may vacate the charges because evidence of a previous rape by Reyes two days before the jogger attack should have been presented in court. But the accused are holding out for the results of a reinvestigation now being conducted by his office, in hopes that a declaration of innocence will wipe their names from all public records.
The men in all of these cases, who were convicted despite the existence of exculpatory evidence, still see Fairstein and her minions as either zealots or headline seekers, pursuing verdicts that would appease the outraged public. Jovanovic thinks Fairstein was also making literary hay from her cases.
"Each time one of these cases occurred, her books probably went flying off the shelves," says Jovanovic. "She used what happened in that unit to make money, and that is wrong." After all, her Alexandra Cooper mystery series is about a hard-nosed woman prosecutor. While reviews never accuse her of great writing, and some complain of the "heavy-handed" use of shoptalk, she earned, according to The New York Times, $2.5M in sales by 1999. In the period between the 1989 jogger case and the 1998 cybersex trial, Fairstein produced two books, both of which were bestsellers.
Fouling cases, though, is still not part of her reputation. Even some former colleagues who admit a personal distaste for her tendency to flaunt her wealth say she is a skilled prosecutor with an eye for the truth. She has earned her stripes, having been one of seven women to join a staff of 175 prosecutors in 1972 after being told by former D.A. Frank Hogan that the job was too "tawdry" for females. For nearly 30 years as an assistant district attorney Fairstein taught rough-and-tumble cops and prosecutors to treat sex crime victims with respect, and she advocated for rape shield laws prohibiting grilling women about their sex lives in court. Oddly enough, before the Jovanovic and Griffin cases, Fairstein even took on the very politically incorrect position of criticizing false accusers-which she describes in depth in her nonfiction opus, Sexual Violence.
"The question one might ask," says one attorney who asked not to be named, "is how she turned megalomaniac" after her younger years when she had "an unyielding zest for prosecution." According to several people close to the case, it was Fairstein's ego and her quest for fame that drove her to elbow Assistant District Attorney Nancy Ryan out of the Central Park case. Ryan had originally been assigned the case because the jogger was expected to die, but Fairstein pushed the sex crime angle of the case and her division got it. Ryan is also considered a likely candidate for the D.A.'s seat. "Prosecutors fight for the big cases, that's what they do," says another lawyer, shrugging off the competition between the two women. Other critics have said Fairstein was overly zealous about the Central Park case to save face after personally prosecuting the preppie murder case, which ended in a deadlocked jury followed by a plea-bargained manslaughter charge.
While Fairstein appears to have been seeking power, she has plenty already. In the D.A.'s office, she moved into an important role quickly, and continued to build on that over the years. She summers on Martha's Vineyard, where she has hobnobbed with the Clintons. She is married to the extremely wealthy and influential Justin N. Feldman, a major player in the Democratic Party who sits on the character and fitness committee of the New York Supreme Court Appellate Division. Even one of the two attorneys appointed recently by the police department to independently review the Central Park case is a junior partner at Kronish Lieb Weiner & Hellman, where Feldman is a senior partner.
But those who accuse Fairstein of zealotry describe a passion that can go beyond maneuvering for power.
"She came bounding at me in the police station like some Joan of Arc crusader type," recalls Sharonne Salaam of the first time she encountered Fairstein, at midnight in the police precinct where her son was being held for the Central Park jogger attack. "I had never seen anything like it."
“She came bounding at me .... like some Joan of Arc
Fairstein believed she had her perps and, says Salaam, was willing to do anything necessary to prove it. Fairstein gruffly dismissed Yusef Salaam's aunt and threatened his mentor, Brooklyn federal prosecutor David Nocenti, in refusing to let them see the teen while he was being interrogated. According to both Sharonne Salaam and Timothy Sullivan's book on the case, Unequal Verdicts, Fairstein then called her husband to demand the home number of Nocenti's then boss, Brooklyn U.S. Attorney Andrew Maloney, so she could get the young attorney fired. According to court records, Fairstein even tried to block Sharonne Salaam from interrupting the interrogation, despite Sharonne's claims that Yusef was 15 and too young to be questioned without an adult. "They really wanted us to leave so they could complete their process," says Salaam. "At one point, I was hyperventilating and I asked for water and Fairstein said there was just no water in the building. It was very strange."
Fairstein's behavior seemed so outrageous that in the 1993 appeals decision on Salaam's case then appellate court judge Vito Titone specifically named her in his dissenting opinion and blasted the entire interrogation process. He recently told Newsday, "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. . . Fairstein wanted to make a name. She didn't care. She wasn't a human."
“deliberately engineered the 15-year-old's confession
Jovanovic had his own strange journey with Sex Crimes Unit prosecutors. He was kicked into a bizarre reality when Fairstein appeared at his arraignment, calling for bail to be set at $500,000, likening him to Ted Bundy and invoking images of serial killer and cannibal Jeffrey Dahmer, saying Jovanovic had material about the murderer in his home. That evidence was never produced. Even stranger, Fairstein allegedly threatened to arrest Jovanovic's mother if she appeared at the arraignment, accusing her of destroying evidence. "I was half in shock during all of this," says Jovanovic, who believes Fairstein threatened his mother so that it would seem Jovanovic had no supporters at his arraignment.
The prosecutors' quest for convictions never wavered, even when there was no clear forensic evidence to prove any of these crimes. In the Central Park case, prosecutors never could link any of the five accused to DNA samples found at the scene. There was no physical evidence linking Jovanovic to his crime, and, in fact, while his accuser claimed she had been brutally attacked and left bleeding, there were only a few fading bruises later found. "If she [Fairstein] couldn't tell this was a false report, well, I am just shocked," says former New York City sex crimes detective John Baeza, who worked in defense of Jovanovic after leaving the force. Baeza said he had previously known Fairstein to be a "powerful woman" with "great judgment."
Griffin, the former head of internal medicine at St. Luke's-Roosevelt Hospital, who is now a researcher for a New Jersey pharmaceutical firm, wouldn't comment for this story, except to agree his ordeal was horrendous. But news accounts confirm that prosecutors were determined to prove his case despite an unusually large number of patients, physicians, and friends coming forth in his defense. They overlooked that the accuser had been angry with Griffin for refusing to testify for her in a civil landlord-tenant case. Prosecutors did, however, choose to take into evidence a tape secretly recorded by Griffin's accuser, who attempted to snag a confession. Prosecutors also advertised an 800 number on the radio and in the New York Post for information about Griffin.
Fairstein would not return calls to the Voice and has commented little since Reyes confessed except to say there was not a rush to judgment in the Central Park case. Calls to a number of former prosecutors were not returned, and the D.A.'s office refused comment.
Though Fairstein retired from the D.A.'s office last spring, many attorneys agree that she still has devotees both in that office and among detectives. And according to some close to the case, the rivalry between her and Ryan, who is said to believe the Central Park Five were not linked to the crime, still exists.
But there is the possibility that Fairstein's power is beginning to diminish. She recently pressured producers at ABC's Primetime not to run a story featuring interviews with a few of the Central Park Five. ABC not only ran that show, but aired a clip of it on Good Morning America, which is co-anchored by Diane Sawyer, a longtime Fairstein friend who wrote praise for her first book. Of course, her staying power remains to be seen in February, when the D.A.'s office is scheduled to release its final decision on the Central Park case.
On Monday, December 3, 2001 I met with Linda Fairstein, NYC prosecutor and head of the special victims unit, along with one of her ADA's, as a final effort to dissuade her from either prosecuting a felony for assault, or forcing a misdemeanor plea bargain in a case in Manhattan in which both parties state the activity was consensual SM. Her position remains unchanged, and she is proceeding with felony criminal charges unless the potential defendant accepts the misdemeanor plea bargain. After meeting with Fairstein and then the defense/defendant to discuss the options, I met with as many NYC SM-leather-fetish community activists as we could muster up on very short discuss to discuss strategies. I want to personally thank them for rearranging their busy schedules to discuss this issue with me with only a few hours notice.
National Coalition for Sexual Freedom has had extensive discussions with the potential defendant and the defense attorney, and key NCSF personnel and legal/political advisors, including me, have viewed the videotape Linda Fairstein provided to the defense attorney as the key piece of evidence. While the caning and use of the single tail in the video are heavy and produce a fair amount of blood, it is activity NCSF believes falls within the accepted SSC community standards, and activity comparable to what I've seen others do, and to activities I've done myself both as a top and bottom. NCSF believes that even a forced plea bargain to a misdemeanor, which would not set a legal precedent, would still have a serious "chilling" effect on the national and local NYC communities related to heavy scene play.
We are calling on NYC community members and supporters to attend the community meeting on Thursday, December 6, to discuss potential strategies and ways to deal with this case and this issue. We are also alerting national community members to be on the alert for actions which NCSF and the NYC community may need your support on in a very short period of time. Charges have not yet been filed, but it is possible that Linda Fairstein may indict on felony charges at the end of business on Friday if the individual does not accept the misdemeanor plea offer. Linda Fairstein knows the activity was consensual, and admitted to prosecuting because she doesn't believe that "one human being should be allowed to do that to another, even if it is consensual". Here are the facts, as we know them:
It involves a fortyish man and woman in NYC who were involved in a two year committed relationship, which included SM. The man video-taped scenes, not just involving this woman but others, and including tapes which show him as a bottom in heavy scenes with some women (although not the woman in Fairstein's video). About 70 videos were confiscated. The couple broke up in 99, but has remained close friends. The involvement of the DA's office resulted from a "telephone fight" between this woman, and the now current girlfriend of this man.
The ex-girlfriend went to the DA in what we believe was an attempt to get back the videos involving her (this is not totally clear to the defense either, and Fairstein doesn't have to disclose everything since charges haven't been filed). Three days later, the police showed up at this man's residence and confiscated the videos and play equipment.
Linda Fairstein called NCSF to ask our thoughts about the videos a short time later (August), and we suggested in a letter (attached) that the case should not be prosecuted if it met certain criteria. We further suggested that an experienced SM practitioner, John Weis, help Linda's office sort through the activity so they could more clearly understand it from a "community standards" standpoint. We suggested John do this because of his previous work with Fairstein related to the dangerous top case, and because of his community leadership credentials and involvement with the AVP. Linda never contacted John.
I did not hear back from Linda, and called her as a follow-up a short time prior to September 11th. She said that she had received my letter, but that two of my four assumptions were wrong. She couldn't remember what they were, and suggested that she a copy of the letter and then get back to me. Then, September 11 happened, and we did not hear back.
Later in August, by doing web research, the potential defendant called NCSF separately, and we opened a dialogue first with him, and then with his defense attorney. During our ongoing discussions, we were told that Fairstein had provided the defense with a video that is comprised of a couple of heavy portions of scenes involving a cane and single tail, and had threatened criminal felony prosecution for assault unless the individual accepted a plea offer to a criminal misdemeanor. We were told that the woman involved (the alleged victim) was a defense witness, and had provided Fairstein with letters/affidavits stating that everything was consensual, and that she did not want the case prosecuted. (It states she "loved every minute".) Further, we were told that the defendant had letters of recommendations on his expertise as a top from former girlfriends and some of the other women in the video, as well as from some experienced long time scene players from the area, sent to Linda Fairstein. The defense also sent the video to Dr. Charles Moser, got an opinion letter saying that the activity was heavy but essentially okay, and provided that to Fairstein.
We had NCSF's legal director review the video tape, and his opinion was that the behavior fell within SSC community standards, but the that the video was likely to be highly inflammatory with a jury and would be quite shocking to those unfamiliar with this type of activity. We wrote a second letter to Fairstein in early November, asking for a second meeting since we had now viewed the video and were in a better position to discuss this activity with her. Last week, the defendant notified us that Fairstein had given the defense a two-week deadline to accept the plea or she would indict on the felony charges. She refused to meet further with the defense attorney, and I started to try to get an immediate appointment with Fairstein.
Linda finally called me back last Thursday, and agreed to meet with me on Monday. The phone conversation was tense, and the mention of my words "media scandal" prompted what I can best describe as a "hysterical response". I believe the reason she agreed to the meeting was because we implied media action, although she says she doesn't care about this and could just go to the media first and release the video. She also indicated that there was "permanent scarring" on the woman. I asked the defense attorney to get a medical assessment of the woman sent to Fairstein before my meeting and to overnight a copy of the video to me so that key NCSF personnel could review it before the Fairstein meeting. Late Friday night, he provided a medical report to Fairstein that included photos of the woman confirming that there was no permanent injury or scarring.
We believe this to be a ludicrous prosecution, and indicative of behavior by Fairstein that is essentially "prosecutorial blackmail" to force a plea bargain in a case that should not be criminalized solely because she does not think "one human being should be allowed to do that to another, even if it is consensual." Further, this is totally inconsistent and contrary to assurances she gave NCSF in our June meeting related to her views on SM, in which she lauded the fact that she had not prosecuted a consensual SM case in 25 years.
Yesterday, the defense attorney wrote a letter to Fairstein's boss, which included statements about how NCSF views the activities, and was successful in getting a meeting with him on Thursday. Today, NCSF will fax a strong letter expressing outrage, and letting Fairstein know that NCSF will make this a major social issue, if any criminal prosecution or plea occurs, and we will copy the DA. We will push for a reduction to a non-criminal violation, or a delay to force examination of further evidence and information. We will send a copy of the letter to the lists.
Also, as a separate issue for SM-leather-fetish practitioners, NCSF wants to urge people to consider carefully that photos and videos can be very damaging evidence. It was also the key evidence in Spanner. A picture is worth a thousand words...
Please refrain from speculation on the facts of the case, particularly if anyone knows the individuals involved. We don't want the case itself discussed on the chat boards either, if possible. But feel free to discuss potential strategies, what this means to our community, and the case in generalized terms.
The National Coalition for Sexual Freedom (NCSF) is a national organization committed to protecting freedom of expression among consenting adults. NCSF works through legal initiatives, lobbying, outreach, and education to promote greater understanding of sexuality and human rights. Founded in 1997, NCSF mobilizes diverse grassroots communities to help change antiquated and unfair sex laws, and to protect free speech and advance privacy rights. NCSF is dedicated to ensuring that all consenting adults can express their sexual identity freely and openly, without fear.
National Coalition for Sexual Freedom
822 Guilford Avenue, Box 127, Baltimore MD 21202-3707 410.539.4824
From the University of Missouri at Kansas City School of Law: A whole list of famous trials prepared by Dr. Douglas Linder