Ken Burns’ new documentary, “The Central Park Five,” about the aftermath of the 1989 rape of a jogger in Central Park, promises to offer a revealing look at the racially charged case that sent five teenagers to jail for a crime we now know they did not commit.
Few are as eager to see the film as New York City officials. In fact, officials are so interested in the documentary that they have subpoenaed Burns’ notes and outtakes. But the officials are looking for something more than just a thought-provoking and cogent analysis of the case; they are hoping to find evidence they can use to defend themselves against charges of police and prosecutorial misconduct.
The five men who were convicted and later exonerated have sued the city for $50 million each in damages, on the grounds that their confessions were coerced. Despite the fact that the convictions were reversed in 2002, when DNA evidence confirmed that the crime was committed by someone else, the city maintains that its law enforcers did nothing wrong. According to the city, the means used to induce five young men to give false confessions were completely appropriate.
The victim in the case was a 28-year-old white investment banker, who was attacked and raped while she was jogging in Central Park. The five suspects who were arrested were teenaged black and Latino males. The young men were separately held and interviewed by police for more than 24 hours before they confessed, four of them on videotape. Those confessions were filled with inconsistencies, and all five men soon withdrew their statements. Furthermore, no solid physical evidence emerged to support the retracted claims. But, in two trials, the five young men were all convicted.
Detectives claimed the attack had been part of a series of random acts of violence allegedly perpetrated that night by a group of around 30 to 40 nonwhite teenagers. Newspapers ran headlines describing the incident in lurid, racially divisive terms. Reporters told of a phenomenon called “wilding,” in which, they said, minority youth engaged in widespread motiveless violence. The exposure of this practice came as a shock to the city, most likely because “wilding” did not actually exist until detectives and the press dreamed it up. But New York City was a different place then, one with much more crime and much more fear than today. The public was prepared to be shocked and to respond to that shock with anger, rather than with reason.
Jurors faced the question of why five teenagers, four of whom were accompanied by adult relatives at the time they confessed, would admit to something they had not actually done. That is the same question posed by the current lawsuit, and it is the one the city hopes Burns’ footage can help them answer.
But the footage that could truly provide the answer is not what Burns shot 20 years after the fact; it's the footage that police failed to tape during the original interrogations. While four of the five final confessions were recorded, none of what the police officers said to lead to those statements was captured on camera. Without those recordings, we can only make the same assumption that the jury did at the time - if five people separately confessed to a crime, there was probably a reason. We know now that the reason was not that they were guilty. The other likely reason is that police coerced them into making their confessions.
My guess, and it is purely my own speculation, is that it went something like this: “Your buddy has given us a full statement. He said you were the ringleader and you were the one who really hurt that lady. He says he just hung back and pretended to be a lookout. We’ve got good evidence that he was really the bad guy, but unless you tell us everything, in detail, you’re never going to see the outside of a cell again - and that’s if you’re lucky.” Repeat five times in five separate interrogations, and you can get five false confessions.
Shortly after Burns received the subpoena, New York City Police Commissioner Raymond Kelly announced a plan to begin recording all post-arrest interrogations in sex crime and murder cases - something that the city still does not do routinely. Kelly’s announcement followed the introduction of a bill that would have mandated recording of interrogations statewide, which stalled in Albany earlier this year. So far, 18 states and Washington, D.C., have passed such laws, which are, not surprisingly, unpopular in police circles.
While Kelly focused on the benefits for innocent people who may be coerced into making confessions, police department spokesman Paul Browne also commented that the measure would protect the city against “specious” accusations of misconduct. That is a fair point, and is a good secondary reason why recording interrogations should be standard procedure.
The legal question of whether Burns must surrender his raw footage has come to turn on the application of New York State’s “shield law,” which protects journalists from having to reveal sources or notes. As I have written before, shield laws raise a set of thorny questions about who is and is not a journalist. Burns and others involved in the making of the film claim that they are journalists as defined by the law. City officials, on the other hand, claim that because the filmmakers “have publicly sided with the plaintiffs and their families,” they should be considered advocates rather than journalists. One has to wonder whether the city’s lawyers have ever watched cable television news channels.
Regardless of whether the subpoena stands, however, Burns’ footage cannot possibly be more than a poor substitute for the recordings police themselves could have made 23 years ago. The proof of what happened to those five young men in police custody never made it out of their interrogation rooms.
At least now, with the new recording policy, when the city wants evidence of what happened during its own interrogation sessions in the future, officials won’t need to sue independent filmmakers to get it.