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City Is Adamant in Its Defense of Police, D.A.s in Jogger Case
New York Law Journal
Ten years ago, a Manhattan judge vacated the convictions of five men for raping and beating a jogger in Central Park. For almost the entire time since then, the city and the five have battledwith no hint of compromiseover the men's allegations that they were the victims of a malicious prosecution.
Facing claims of $50 million in damages from each plaintiff, the city's attorneys have aggressively defended the actions of police detectives and prosecutors in eliciting confessionsconfessions it says gave them plenty of probable cause to arrest and prosecute teenagers Antron McCray, Kevin Richardson, Raymond Santana, Jr., Kharey Wise, and Yousef Salaam.
The plaintiffs' lawyers counter that the confessions from four of the defendants, the central evidence in the controversial case of "The Central Park Jogger," were coerced by investigators under so much pressure to solve the crime that they overlooked evidence pointing to the man who actually perpetrated the assault.
Meanwhile, the strong emotions stirred by the case have been highlighted by a new documentary, "The Central Park Five," which is set to have its public premiere tonight at three New York City theaters and was co-directed by noted filmmaker Ken Burns, his daughter Sarah Burns and her husband David McMahon.
The film, and the book by Ms. Burns on which it is based, argue that the five young men were the victims of racism and a mob mentality in crime-ridden New York. In fact, Ms. Burns suggests in her book, that the case was comparable to lynchings in the South perpetrated by "angry white mobs, terrified and incensed at the spectre of their women in danger from black men."
"I hope this film makes you angry," Sarah Burns told one recent festival audience.
But the city, which has subpoenaed the film's outtakes for use in its defense against the civil claims in federal court, has offered no apologies.
"If there is probable cause, there is no malicious prosecution," Celeste Koeleveld, the city's executive assistant corporation counsel for public safety, said in a statement. "If there is no wrongdoing, there is no malicious prosecution. We don't believe the plaintiffs can make a case for either. There is no evidence to support the plaintiffs' claim that police and prosecutors conspired to falsely arrest them and coerce their confessions."
One of the defendants, who are now plaintiffs in the federal civil rights action, was 16, two were 15 and two 14 on April 19, 1989, a night of youth "wilding" in Central Park, when 28-year-old Patricia Meili was raped and left for dead.
(Meili, who later wrote her own book about the case, could remember nothing about the attack.)
By the time Matias Reyes told police in January 2002 that he had committed the crime, most of the five had finished their sentences. One served 13 years, three served 7 years each and one 7 1/2 years.
Reyes' admission triggered a review of the evidence by the office of District Attorney Robert Morgenthau, who ultimately joined with defense attorneys to move for vacatur of their convictions. Morgenthau's decision angered police, who said they were being scapegoated by the office and Assistant District Attorney Linda Fairstein, who was the lead sex crimes prosecutor at the time of the case.
Assistant District Attorney Nancy Ryan, the chief of Morgenthau's trial division, who conducted the review decried in an affirmation the activities of rampaging youth gangs in the Park "as grave and inexcusableunprovoked attacks on strangers, apparently undertaken for the fun of it, which left some terrorized, two knocked into unconsciousness, and one seriously injured."
Moreover, she acknowledged in the affirmation that, "It was logical for the people to suggest that the defendants' culpability and criminal intent could be inferred from the pattern of conduct engaged in by the group of which they were a part."
But the attack on Meili, Ryan said, was "of a far greater order of seriousness," and the "timing of events made it hard to understand when" the teens could have assaulted her.
Moreover, Ryan said that "none of the defendants accurately described where the attack on the jogger took place."
Applying the legal standard for the evaluation of evidence discovered after a judgment of conviction, Ryan wrote to the court that "we conclude that there is a probability that the new evidence, had it been available to the juries, would have resulted in verdicts more favorable to the defendants."
On Dec. 19, 2002, Justice Charles Tejada granted motions for vacatur and the state's motion to dismiss the indictments.
But a commission headed by attorney Michael Armstrong that had been appointed by Police Commissioner Raymond Kelly to evaluate the department's actions saw things differently.
The commission concluded in a report released on Jan. 27, 2003, that the police interrogation of the Central Park Five was properly conducted and the police could not be blamed for failing to connect Reyes to the attack.
While it acknowledged that the evidence could "afford a reasonable basis" for the contention that Reyes acted alone, it said similarities in the defendants' statements, taken together with other evidence, "leads us to conclude that it is more likely than not that the defendants participated in the attack upon the jogger."
The most likely scenario, the report said, was that "the defendants came upon the jogger and subjected her to the same kind of attack, albeit with sexual overtones, that they inflicted upon other victims in the park that night."
"Perhaps attracted by the victim's screams, Reyes either joined in the attack as it was ending or waited until the defendants had moved on to their next victims before descending upon her himself, raping her and inflicting upon her the brutal injuries that almost caused her death," the report states.
'A Very Simple Case'
The police department's defense of its actions set the stage for the hard-fought litigation that has lasted almost nine years. Fairstein, Morgenthau, police detectives, line prosecutors Elizabeth Lederer and Arthur "Tim" Clements were among those sued in In re McCray, 03-cv-09685 on Dec. 8, 2003.
Beldock Levine & Hoffman represents all of the plaintiffs save Wise and his family, who are represented by Fisher, Byrialsen & Kreizer.
"Actually, it's a very simple case," said Jonathan Moore of Beldock in an interview. "We know that Reyes did this and we know of no evidence connecting our guys to the crime."
Moore noted that the Law Department's Koeleveld has said the agency believes the confessions were sound.
"Which means they still think they're rapistsand that's devastating," Moore said. "That's one of the most outrageous things in that the city continues to fight the evidence marshaled by the D.A. showing that Reyes acted alone."
Moore said he believed the tenacity of the city's defense is that its "ego-driven by police and prosecutors who think their reputation is on the line."
The Law Department responds that the five were not exonerated and that the lawsuit fails on its central allegationsthat the police or prosecutors coerced the confessions and withheld evidence.
The city has argued that both the presence of probable cause and an absence of misconduct defeats the malicious prosecution claim.
As for probable cause, the city says that the teens implicated themselves in some of the other attacks that took place in the park that night, and it was common sense for the detectives to believe that the attack on Meili was related to those other attacks.
And city lawyers insist that the evidence shows Reyes did not act alone.
Some of the attorneys involved in the litigation from the city have said privately that nothing has rankled them more than the suggestion that the city railroaded the teens out of racial animus.
They point to the fact that black and Hispanic detectives were among those who questioned the teens and the juries that convicted the five in two trials were racially and ethnically diverse.
They note that Justice Thomas B. Galligan, who presided over the criminal trial, held a six-week hearing before pronouncing the confessions voluntary and said the police officers in the case were "duty-bound" to make the arrests.
Motion to Dismiss
The Law Department's defense began in earnest in the fall of 2004, when the city filed motions to dismiss for failure to state a claim and lack of subject matter jurisdiction.
The city's memorandum of law argued that claims of false arrest and coerced confessions were barred by collateral estoppel because the plaintiffs raised identical issues at their criminal trials and lost.
Despite understandable inconsistencies between the statements given by the five teens, the city said the critical fact was that all five placed themselves at the scene of the rape of Meili, so the decision to arrest and charge them was firmly anchored in probable cause.
The plaintiffs had also challenged the failure of the city to turn over alleged Brady material on Reyes.
But the city countered that evidence regarding Reyes was not exculpatory or material because the prosecution's theory included the presence of another rapist and the police did not "conceal" any evidence of Reyes' rapes from the district attorney's office.
Ms. Fairstein, the brief argues, was shielded by the 11th Amendment and the doctrine of absolute immunity. And it said that the allegations of a conspiracy under 42 U.S.C. §§1983 and 1985 were "wholly conclusory."
But in an 87-page opinion on Dec. 12, 2007, Batts let the bulk of the claims survive.
On the assumption that the plaintiffs' claims were accurate, Batts noted that "Commissioner Kelly ratified the allegedly wrongful conduct of City Defendants."
"Additionally, in establishing the Commission, publishing the Armstrong Report and accepting its findings, Defendants participated in a conspiracy; the aims of this conspiracy were to propound the belief that Plaintiffs are in fact guilty of the attack on Meili, to brand publicly Plaintiffs as rapists, and to absolve the New York Police Department of Liability," Batts said.
Batts dismissed official capacity claims under the Eighth Amendment, federal and state claims for false arrest as well as claims against the district attorney defendants for prosecutorial misconduct and a host of other state claims.
Batts also dismissed, but allowed the plaintiffs to replead, several claims, including claims for malicious prosecution, claims against the district attorney defendants based on non-prosecutorial conduct, federal racial discrimination claims, and state law claims for intentional infliction of emotional distress and due process.
The plaintiffs filed their amended complaint on April 21, 2008.
Since then, the parties have been fighting over discovery, taking dozens of depositions, and arguing over questions of privilege and the confidentiality of documents in a sex crimes investigations with regard to other victims of Reyes as well as to Meili.
Reyes himself was brought from the Clinton Correctional Facility to the courthouse at 500 Pearl St. on Sept. 8, 2010 to be questioned.
On Dec. 6, 2010, Magistrate Judge Ronald Ellis, overseeing discovery, declined to apply the deliberative process privilege to opinions, deliberations and recommendations of personnel assigned to the Armstrong Commission's investigation of the arrests.
The plaintiffs' moved for the city to turn over a host of documents in unredacted formhandwritten notes, to-do lists, thoughts about the admissibility and discoverability of certain evidence, analysis of evidence and witness testimony, drafts of direct and cross-examination questions, communications with experts, legal research and draft opening statements and summations.
The city opposed on the grounds that the documents were attorney work product.
In an Aug. 31, 2011 memo, the Law Department argued the documents were "generated in anticipation of and preparation for litigation; they reflect the mental impressions, conclusions, opinions, or legal theories" of Lederer, Clements and Fairstein.
On Nov. 22, 2011, Ellis found the notes were indeed protected by the work product doctrine and plaintiffs had failed to make the necessary showing to overcome the privilege in most instances.
But Ellis also found the plaintiffs had made a "highly persuasive showing" on notes related to the prosecutors' assistance with the police investigation, especially in light of Batts' decision to allow claims against the prosecutors in their non-prosecutorial capacity to go forward.
The "ADA Defendants' behavior during the investigation has been placed squarely at issue by Plaintiffs' claims, and documents generated in connection with the investigation are clearly relevant," Ellis said.
But discovery is nowhere near complete and motions for summary judgment and a possible trial are far off.
Saying the "city has fought us on every little thing," Moore said there are still some 60 depositions to go20 for the plaintiffs and 40 for the city.
Moore said some of the depositions that have been taken have produced "very powerful testimony" as to "how they were manipulated by police to get these confessions."
The most recent conflict in discovery has been over the Burns film, which includes replays of the confessions. The Law Department first issued a subpoena in September for outtakes from the film that they said go right to the heart of the litigationthe claim that the confessions were coerced.
The Law Department contends that the film's point of view, and that statements by Ken and Sarah Burns saying they believe the city should compensate the Central Park Five, show that the filmmakers are now aligned with the plaintiffs' lawyers and have forfeited any claim of journalistic privilege on the outtakes.
The directors and their company, Florentine Films, have filed a motion to quash the subpoena before Ellis (NYLJ, Nov. 9).
At a status conference last week, Ellis expressed exasperation at the slow pace of discovery, lamenting that far too much time had been spent arguing over issues of confidentiality and redactions in document handovers. He faulted the city for what Myron Beldock of Beldock Levine & Hoffman said was the routine practice of labeling documents confidentialeven news articles. Ellis, Beldock said, ruled that, henceforth, the party seeking to tag a document as confidential had the burden of showing why it should be so marked. The next conference in the case is on Dec. 17.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.