Thirty years ago, a 28-year-old jogger named Trisha Meili was beaten, raped and left for dead in New York City’s Central Park, and it wasn’t long before five teenagers-African-American and Hispanic, dubbed by the press as the Central Park 5-were arrested, tried and convicted of a crime they didn’t commit. It wasn’t until 2002 when another young man, Matias Reyes, confessed on videotape to being Ms. Meili’s sole assailant, and DNA testing confirmed his account.
Even at that, it took until 2014 before the five wrongly convicted men prevailed in a $41 million claim against the City of New York, and later still in a $3.9 million suit against the State of New York. And yet their story might well have ended there were it not for When They See Us, a hit Netflix miniseries that has reignited a national conversation about race, our criminal justice system, and the role of police, prosecutors and the press in the treatment and depiction of these men. More than that, the series has sparked public awareness about false confessions (a key factor in convicting the Central Park 5) and New York’s changing laws and reforms on interrogation tactics, identifications, and prosecutions. The key question, of course, is whether these laws and reforms will be enough to prevent future miscarriages of justice, or if there is more work to be done. This article will examine that question.
“We got something here with this (Netflix) series that is most certainly going to be a tectonic shift as it relates to the criminal justice system,” says Yusef Salaam, who was 15 when he was arrested along with Kevin Richardson, Raymond Santana Jr., Antron McCray, and Korey Wise, as police moved swiftly to solve what was known as the Central Park jogger case.
All five young men, who were among the group of over 30 teenagers hanging out in the park that night, were apprehended. In the beginning, detectives intended to bring them in and question them about a series of more minor crimes that occurred earlier that night and issue a desk appearance ticket for them to report to family court at a later date.1 Yet, once prosecutor Linda Fairstein heard of the attack on Meili, she instructed detectives to detain the teenagers and begin questioning them about the rape, a process which the teenagers initially described as seemingly professional, yet quickly turned aggressive and forceful.2 According to the teens, the detectives reportedly used various tactics in order to get them to confess to these crimes, utilizing techniques such as physical force, aggressive questioning, shouting, threats, and lies, to coerce a false confession on videotape (the questioning prior to the confessions was not put on camera).3
So many people in New York City are vulnerable and susceptible to this type of behavior from police officers, investigators, and detectives, even in 2019, 30 years after the Central Park jogger case. Just earlier this year, a man named Huwe Burton, 46, was exonerated after serving 20 years in prison for the death of his mother in 1989, which was the same year of the jogger case. At the time, a then 16-year-old Burton arrived at his home in the Bronx after school one day and discovered his mother’s body, but then later falsely confessed to the murder after detectives had interrogated him for hours.4 Burton was charged with murder, despite a lack of physical evidence, his timeline not matching up to the details of the crime, and his coerced confession,5 and was only recently exonerated, after leaving jail in 2009. Further, this past May, Keith Bush was recently exonerated after DNA evidence revealed that he did not commit the crime he was charged with as a 17-year-old in the 1970s: the murder and sexual assault of a 14-year-old girl in Bellport, NY.6 Mr. Bush stated he gave a false and coerced confession to police and served 33 years until he was released on parole in 2007.7
Cases like this make it clear why it is so critical for individuals to know and understand their rights during the interrogation process, especially people who may not know the options they have during interrogations, such as young children, teenagers, people of color, minorities, immigrants, or people who do not speak English as a first language.
Many efforts have been made to address this problem, including studies that have been conducted, new proposed legislation, and overseeing commissions. In 2009, the New York State Bar Association issued the Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, which detailed cases of wrongful convictions in New York.8 The report stated that one of the main causes of wrongful convictions was the use of false confessions, and in 23% (12 of 53) of the wrongful convictions analyzed by the Task Force, the accused had falsely confessed. This is troubling, as the report detailed that a “[c]onfession is likely the most potent evidence of guilt, and often sufficient in and of itself to secure a conviction.”9 The report suggested numerous proposed reforms to address this issue, such as (i) implementing specific training about false confessions to police, prosecutors, judges, and defense attorneys, (ii) advocating for further studies on false confessions, and (iii) urging for electronic recordings of custodial interrogations of felony-level crimes.10
Many other activists, attorneys, and other individuals are working to implement some of these suggestions, both within New York and across the country. While it appears that the tactics that detectives and police use when interrogating people have remained the same in the past three decades, it seems that change is on the horizon, in many ways thanks to the efforts of the men who were exonerated of the crimes that took place on that night in 1989.11 Kevin Richardson, Yusef Salaam, and Raymond Santana launched the #EndNYWrongfulConviction campaign in partnership with the Innocence Project in 2016, “which pushed for mandatory recording of the interrogations and eyewitness identification reforms – two of the top contributors to wrongful convictions in New York.”12 In April 2017, the New York Legislature passed the FY18 budget, which incorporated numerous reforms in an effort to reduce wrongful convictions in New York.13 On April 1, 2018, one of those reforms in that bill, a New York state law that mandates law enforcement agencies “statewide to video record interrogations of people accused of serious non-drug felonies, such as homicides and violent sex offenses,” was implemented, and this is a new requirement that applies to “all custodial interrogations that occur in police stations, correctional facilities, prosecutors’ offices and holding areas.”14 Many advocate for this because a recording will offer “a permanent record of what was said and done, how suspects acted, and how officers treated suspect”15 and “those who may be inclined to use improper tactics cannot do so because their actions and words are being recorded.”16 Advocating of recordings of custodial interrogations has been one of the most popular choices for criminal justice reform of false confessions, because it offers multiple benefits: accuracy (“a videotaped rights-waiver and confession will be more accurate and completed than a signed sworn statement by the investigator”),17 judging credibility (“a fact-finder who observes an accused’s gestures and facial expressions, and hears an accused’s own words, will be better able to judge the credibility of the accused”),18 and most important, assessing voluntariness. Further, many believe that if detectives know and understand that their behavior and questioning will be recorded, it will serve as “not only as a deterrent to improper behavior, but also as a tool to critique his performance and improve his technique.”19 However, one drawback many point to is that if a recording is eventually mandated by law, then “a failure to record in violation of that law makes an otherwise lawful and voluntary confession inadmissible in court.”20 Yet bearing in mind the future effects of a law like this, it is clear that most of the benefits outweigh the cons and concerns, and recording interrogations will bring many positive changes to the criminal justice system, including lessening the amount of false confessions that are elicited from individuals.
Aside from mandating recording of interrogations, in July 2017, New York state began to allow juries to consider photo arrays shown to a witness by police officers, often viewed as “the most reliable evidence that identified the perpetrator of a crime,”21 as evidence in criminal trials.22 Before, New York had been the only state that prohibited the introduction of photo arrays 23 and, particularly, blind photo arrays (which is when police detectives do not know who the suspect is) that would allow for a less biased means of attempting to identify potential perpetrators. When a crime occurs, if a victim gets a good look at the perpetrator, then “photo arrays can be highly effective at confirming whether a person was, in fact, involved in a crime. This helps to protect innocent people from arrest and conviction, and holds guilty individuals accountable.”24 It has “been widely recognized that photo arrays offer the best opportunity to obtain fair and accurate identifications,”25 and if there are no other means of identifying the perpetrator, a photo array would be the most reliable option in allowing police and detectives to track down a suspect. The only potential downside would be if a victim does not accurately remember the perpetrator of a crime, the victim may misidentify him in a photo array, but that is a risk that has always been present, and allowing photo arrays would not do anything to increase that possibility. Most of the time, photo arrays will be able to allow for correct identifications, and therefore the pros by far outweigh the cons.
Finally, in August 2018, Governor Andrew Cuomo signed legislation to establish the first State Commission on Prosecutorial Conduct in the nation,26 which is designed to “review and investigate prosecutorial conduct to address allegations of misconduct which lead to among other things including malicious prosecutions and wrongful convictions, frequently impacting people of color and marginalized communities.”27 The Commission was formed on January 1, 2019 and is tasked with overseeing New York State’s 62 district attorneys and their assistant district attorneys, investigating prosecutorial misconduct, and looking into prosecutors’ qualifications and professional fitness.28 While many applaud this initiative, many of the state’s district attorneys initially moved to block the commission, arguing that the legislation is unconstitutional and “impermissibly intrudes on core law enforcement functions.”29 The attorneys also tried to argue that the Commission would “expand the power of certain judicial officers” and “deny due process and equal protection rights to the state’s prosecutors.”30 Despite these voiced concerns, Governor Cuomo signed this bill in March 2019 in an effort to closely monitor prosecutors’ actions and motives when working on various criminal cases.31 It is clear that the effort of the Commission is to lessen the corruption that exists within certain prosecutorial conduct, and there can still be oversight of this behavior without interfering with prosecutors being able to do their jobs properly.
While it is clear that many injustices have occurred and still sometimes occur during police interrogations, many are relieved to see the reform that has begun to be implemented in New York to prevent wrongful convictions in the future. This represents a hopeful turning point for criminal law in New York, which has had the third largest number of wrongful convictions in the U.S. for years.32 Legal reform like this and the conversations that have been sparked by the miniseries regarding wrongful convictions, police interrogations, and knowing your rights could ensure that the world will never see a case like this again. In fact, that is the hope that many of the men now known as the Exonerated 5 have, particularly Kevin Richardson, who stated in a televised interview with Oprah Winfrey: “I’m so happy and ecstatic that we can start the conversation now and to make sure that there will never be another Central Park Five.”33
- Graham Rayman, Lead Police Officer on the Central Park 5 Case Looks Back on the Savage Crime That Rocked the City, New York Daily News (July 19, 2018), https://www.nydailynews.com/new-york/ny-news-eric-reynolds-detective-central-park-20180713- story.html.↵
- Paul Callan, Ava DuVernay’s Compelling Look at Tragic Injustice of Central Park Five Case, CNN (June 1, 2019), https://www.cnn.com/2019/06/01/opinions/when-they-see-us-central-park-five-opinion-callan/index.html.↵
- Central Park Five Prosecutor Linda Fairstein Calls Netflix Series An ‘Outright Fabrication’, CBS News (June 11, 2019), https://www.cbsnews.com/news/when-they-see-us-central-park-five-prosecutor-calls-mini-series-an-outright-fabrication/.↵
- Jan Ransom, He Spent 19 Years in Prison for Murder. Now Prosecutors Say His Confession Was Coerced., The New York Times (January 24, 2019), https://www.nytimes.com/2019/01/24/nyregion/huwe-burton-exoneration-bronx-murder.html.↵
- Bronx Man’s 1991 Murder Conviction Vacated, Innocence Project (January 24, 2019), https://www.innocenceproject.org/bronx-mans-1991-murder-conviction-vacated/.↵
- Arielle Dollinger, ‘No One Would Listen’: Cleared of Murder, After 33 Years in Prison, The New York Times (May 22, 2019), https://www.nytimes.com/2019/05/22/nyregion/murder-conviction-vacated-keith-bush.html.↵
- N.Y. Judge Overturns Conviction of Innocent Man Who Spent 33 Years In Prison, CBS News (May 22, 2019), https://www.cbsnews.com/news/long-island-ny-judge-overturns-conviction-keith-bush-spent-33-years-prison-2019-05-22/.↵
- Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, New York State Bar Association (April 4, 2009), https://www.nysba.org/wcreport/.↵
- Lauren Cook, Central Park 5 Case, When They See Us’ Raise Questions About Criminal Justice Reforms, AM NY (June 14, 2019), https://www.amny.com/news/ central-park-5-wrongful-convictions-1.32366206.↵
- New York Passes FY18 Budget with Powerful Reforms to Prevent Wrongful Convictions, Innocence Project (April 10, 2017), https://www.innocenceproject.org/new-york-wrongful-convictions/.↵
- Eyewitness Identification Reform, Innocence Project, https://www.innocenceproject.org/eyewitness-identification-reform/.↵
- Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 JCRLC 1127, 1129 (2005).↵
- Major Edward W. Berg, Videotaping Confessions: It’s Time, 207 MILLR 253, 256 (2011).↵
- Maurice Chammah, Bill Would Require Police to Record Interrogations, The Texas Tribune (December 5, 2012), https://www.texastribune.org/2012/12/05/bill-would-require-police-record-interrogations/.↵
- Governor Cuomo Announces New Law Permitting Photo Identifications as Evidence at Trial in Effect Starting Today, New York State (July 1, 2017), https://www.governor.ny.gov/news/governor-cuomo-announces-new-law-permitting-photo-identifications-evidence-trial-effect.↵
- Corinne Ramey, New Law Allows Identification of Suspects by Photo as Evidence, The Wall Street Journal (July 17, 2017), https://www.wsj.com/articles/new-law-allows-identification-of-suspects-by-photo-as-evidence-1500338152.↵
- Governor Cuomo, Manhattan DA Vance Announce $500,000 for Law Enforcement to Purchase Equipment to Video Record Interrogations (July 6, 2016), https://www.governor.ny.gov/news/governor-cuomo-manhattan-da-vance-announce-500000-law-enforcement-purchase-equipment-video.↵
- Governor Cuomo Announces New Law Permitting Photo Identifications as Evidence at Trial in Effect Starting Today (July 1, 2017), https://www.governor.ny.gov/news/governor-cuomo-announces-new-law-permitting-photo-identifications-evidence-trial-effect.↵
- Governor Cuomo Signs Legislation to Establish Nation’s First Commission on Prosecutorial Conduct, New York State (August 20, 2018), https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-establish-nations-first-commission-prosecutorial-conduct.↵
- Dan M. Clark, NY State DAs Move to Block Creation of Prosecutorial Conduct Watchdog, New York Law Journal (April 1, 2019), https://www.law.com/newyorklawjournal/2019/04/01/ny-state-das-move-to-block-creation-of-prosecutorial-conduct-watchdog/.↵
- Nicholas Chan, New York Governor Signs Bill Creating Prosecutorial Misconduct Review Panel, Jurist (March 28, 2019), https://www.jurist.org/news/2019/03/new-york-governor-signs-bill-creating-prosecutorial-misconduct-review-panel/.↵
- Barry Scheck, Ending the Era of Wrongful Convictions in New York State: Pass Desperately Needed Reforms to Prevent False Confessions and Eyewitness Misidentification, New York Daily News (June 16, 2015), https://www.nydailynews.com/opinion/barry-scheck-ending-era-wrongful-convictions-n-y-article-1.2260259.↵
- Lauren Cook & Nicole Brown, Central Park 5: Where Are They Now?, AM NY (June 14, 2019), https://www.amny.com/news/central-park-5-1.31716496.↵