NEW YORK (Legal Newsline) – Linda Fairstein, the longtime head of the Manhattan District Attorney’s Sex Crimes Unit who oversaw the prosecution of the “Central Park Five,” has plausibly alleged defamation by a critically acclaimed Netflix series.
New York federal judge Kevin Castel ruled on Aug. 9 against Netflix and When They See Us director Ava DuVernay and writer/producer Attica Locke. The 2019 series received 11 Emmy Award nominations, but Fairstein says the show’s portrayal of her has caused her post-prosecutor life as a best-selling novelist to crumble – not to mention death threats.
Castel found that five scenes in the series could be construed as defamation, and Fairstein’s lawsuit will continue towards trial. Attorneys on both sides have already told Castel that a settlement is unlikely.
The crime at the center of When They See Us was the violent rape of jogger Trisha Meili, who was jogging in Central Park in 1989. Five Black and Latino youths were convicted but were exonerated after someone else confessed to the crime.
They sued New York City and settled for $41 million. Fairstein supervised the prosecution of the case but was not one of the DA’s trial attorneys.
“Fairstein is portrayed as a central villain of When They See Us,” Castel wrote. “As depicted in the series, she quickly concludes that the Five are responsible for the attack, and is thereafter portrayed as a zealous, win-at-all-costs prosecutor.
“In one sequence, she intentionally delays the production of critical DNA evidence to defendants until the eve of trial, and in others, she instructs members of the New York City Police Department to engage in harsh investigative techniques.”
Fairstein alleged defamation took place in 11 scenes, but some of those show routine activities that fall short of that claim or convey opinions that would be understood by the average viewer not to be a literal recounting, Castel wrote.
But five could be found to have defamed Fairstein, he wrote. They:
-Show Fairstein withholding evidence;
-Reference “tapes” that show she coerced confessions;
-Show Fairstein telling officers not to use “kid gloves” when questioning suspects; and
-Directing a racially discriminatory police roundup of young men in Harlem.
“The average viewer could conclude that these scenes have a basis in fact and do not merely reflect the creators’ opinions about controversial historical events,” Castel wrote.
“Separately, the Court concludes that defendants have not demonstrated the substantial truth of a scene depicting Fairstein’s creation of an attack timeline because they rely on public remarks that are inconsistent with her depiction in the scene.”
Castel is also letting Fairstein move forward with her claim for civil conspiracy by the defendants. The complaint adequately alleges the defendants collaborated in the writing, production and publication of defamatory material, he wrote.
Fairstein says prior to the development of the series, she expressed her concerns that she be portrayed accurately to DuVernay and Netflix and provided them with a list of publicly available sources like trial transcripts and deposition testimony.
She says DuVernay and Netflix disregarded her concerns. After the series aired, her publisher dropped her and Glamour Magazine publicly expressed regret for awarding her its 1993 Woman of the Year Award.