Netflix reports that 23 million subscribers signed in to watch When They See Us, the mini-series that dramatizes the harrowing experience of the five wrongly convicted young men now known as the Central Park Five.
At least 23 million pundits have published their reactions to the series, too.
Their prescription is straightforward.
Second, replace the demons with angel prosecutors.
What could be simpler? The problem is, it won’t work.
The important question raised by all the writing, blogging and podcasting is whether anyone is really serious about preventing a repetition of the tragedies that the series recounts.
Dispensing with Fairstein and Lederer is fine with me. While the going was “good” (that is, when things were moving in the wrong direction for the innocent defendants) both Fairstein and Lederer reached for and basked in the limelight.
But by now the two women have entered a special category of individual—along with, say, Richard III, Eric Trump, and Simon Legree—that we maintain principally to provide the rest of us with a delectable opportunity to savor our own moral superiority.
Putting them aside removes a dangerous distraction.
Systems, Not Devils
To begin with, the notion that Fairstein and Lederer are uniquely evil suggests that the Central Park Five were uniquely victimized. The fact is, the Central Park wrongful convictions were system failures in which many people—cops, defenders, judges, forensic scientists—had a hand, either by making a mistake or failing to catch one.
There was substandard evidence collection work, and there were dangerously outmoded interrogation techniques. There was poor crime scene analysis. Confirmation bias and groupthink characterized the investigation; bureaucratic silos impeded information sharing. A kind of fatalistic lethargy seemed to mark the defense. The specially appointed trial judge took a see-no-evil approach to the prosecution’s case.
And, yes, there was there was an absence of critical thinking by the lawyers directing the prosecution team.
Beyond these frontline deficits, there were the people who hired, trained, supervised, assigned, and funded (or didn’t) the practitioners—the people who created the environment.
Fairstein and Lederer were not swashbuckling renegades in their office; they were respected pros.
As Diane Vaughan said of the Space Shuttle Challenger launch decision, conformity, not deviance, was at the root of the problem. We have to come to grips with the fact that the Central Park Five fiasco was not the work of a pair of sociopaths— not a once-every-30-years lightning strike. These wrongful convictions were very much “normal accidents”.
The shortcuts and “workarounds” that When They See Us makes so clear in hindsight are what we could expect from individuals trying to make sense of their roles under extreme pressure to produce.
And we have to face the reality that the pressure to produce in the Central Park Five case was generated by a public attitude, by the broad societal stereotyping of young black men: a chronic weakness available for exploitation by the Donald Trumps of the world.
In the hysteria following the attack on the jogger, the racially biased coverage set Fairstein and Lederer up as candidates for angel status; it was the innocent defendants who were cast as the devils—or, at least, as Paul Butler points out, the apes.
These features took spectacular form in the Central Park Five case; but the same features are operating to a greater or lesser degree in hundreds of lower temperature, Kalief Browder, cases every month, with Fairstein and Lederer nowhere in sight.
The New Prosecutors’ Challenge
The point of all this is not to mitigate Fairstein’s and Lederer’s mistakes. It is to argue that when Kim Foxx, Larry Krassner, Rachel Rollins, or the other “progressive prosecutors” ride into town on the handsome white stallions issued to them by the commentators, it will be grossly unfair to expect any one of them to deal with all of this by waving a wand.
Reform-minded prosecutors can improve some things by taking action unilaterally within their own offices. They can, for example, raise the internal charging criterion from “probable cause” to “beyond a reasonable doubt.” They can order their staffs to provide open file discovery. They can decide as a matter of policy to avoid steps solely designed to enhance plea bargaining leverage.
For example, they can refuse to seek “trial tax” enhancements to sentences.
They can develop an internal culture that devises sentencing recommendations based on a careful consideration of the community safety implications of failing to address offender substance abuse, mental health, and educational and housing challenges, and that does not default to “longer is better” sentencing posture.
They can recognize that we are heirs to a long and pervasive history of racial bias (both explicit and implicit) and do what they can to train staff to be alert to those issues.
But the criminal justice system isn’t a simple linear, sequential process from crime to conviction. As the Central Park Five experience reveals, criminal justice is an extraordinarily complex environment in which scores of practitioners, in a dozen separate but interacting silos, are attempting to make sense of a cloud of swirling, overlapping, often contradictory influences.
Getting things right requires more than a chivalric individual moral code. It requires collaboration with numerous other practice communities and insight into the working lives of the people within them.
That is why leaders in the earliest generation of “progressive prosecutors” like Milwaukee’s John Chisholm and San Francisco’s George Gascon provided essays to the National Institute of Justice’s volume Mending Justice supporting the idea of all-stakeholders, non-blaming, learning reviews of criminal justice events that can reveal the connections—and the failures to connect—that are endemic to everyday criminal justice life.
Chisholm’s experience in convening a group of 30 stakeholders to learn from the mistaken release of Markus Evans, a Milwaukee juvenile who almost immediately after release killed a teenage girl, showed him that only these all-stakeholders collaborations can reveal the information gaps that prevented anyone with decision-making power to understand fully what was happening.
In effect, all prosecutors are entangled in a system that, as Diane Vaughan observed of the pre-Challenger NASA, embodies a “structural secrecy”: a system that threatens to keep secrets from itself.
This “structural secrecy” will remain a challenge to even the most ambitious prosecutorial reformers, and, paradoxically, it will be a greater challenge as our new data-driven environment generates more and more information.
In a forthcoming article , Andrew Guthrie Ferguson meticulously unpacks the implications of Manhattan District Attorney Cyrus Vance’s innovative “intelligence-driven prosecution” scheme in light of the constitutional requirement that evidence favorable to the accused must be turned over to the defense.
The powerful architecture of centralized data collection which Vance’s approach mobilizes was not designed to identify the exculpatory and impeaching material that prosecutors are required to provide to the defense.
Ferguson’s specific focus is on compliance with the discovery rule requiring disclosure but it seems pretty clear that evidence of innocence can unintentionally (but routinely) be converted into a “weak signal” that inevitably disappears from the screens of the practitioners making the decisions, just as the warnings about the effect of unusually low temperatures on the launch rocket’s “O-rings” on the eve of the Challenger launch faded into the background.
Everyone has some of the information; no one has all of it.
Think about how easily that could happen when an alibi was at issue.
Linda Fairstein has taken a pugilistic attitude toward the current attempts to demonize her, but it is hard to believe that—back then—she would not have welcomed the information about the actual rapist, Matias Reyes, that was somewhere in NYPD files but never foregrounded in the investigation.
Maybe she would have come to the same conclusions. Who knows? But it would certainly have been by a different route, and the odds in favor of accuracy would certainly have been improved.
The issue here is not the bad character of one prosecutor, or the better character of his or her replacement.
The question is not “Who” but “What” can be changed. The next prosecutor will need help with that one.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.