Central Park Five prosecutor Linda Fairstein may sue Netflix for defamation over its portrayal of her in its 2019 series about the case.
Judge Kevin Castel of the U.S. District Court for the Southern District of New York ruled that Fairstein has satisfactorily alleged defamation as to five scenes in the series. Fairstein initially alleged 11 scenes were defamatory, but five remain after the court’s review.
Netflix’s “When They See Us” retold the story of the Central Park Five and Fairstein’s involvement in the prosecution of the five Black and Hispanic teenagers wrongfully convicted of a violent attack on a jogger named Trisha Meili. The teenagers’ convictions were vacated in 2002, 13 years after the attack, after DNA evidence connected another man to the crime.
The five scenes in question depict Fairstein withholding exonerating evidence, instructing police not to use “kid gloves” when questioning the Five, and directing a racially discriminatory police roundup of young men in Harlem. One scene depicts the existence of “tapes” showing Fairstein “coercing” the Five into confessions. Judge Castel determined that the average viewer could plausibly believe the scenes were based in fact and did not merely reflect the creators’ opinions.
For example, one scene shows Fairstein discussing a DNA-marked sock that has not been disclosed to the defense. She suggests the prosecution will “surprise” the defense by testing the sock on the eve of trial. Later when the DNA on the sock is found not to match any of the Five, Fairstein is shown suggesting that a sixth attacker was involved “if it helps a jury believe what we know is true.” Judge Castel noted that these statements and actions have a precise meaning, are capable of being proven or disproven, and the average viewer could reasonably believe these depictions were based on undisclosed facts known to the filmmakers. Further, concealing evidence would likely be a violation of the law and a lawyer’s professional responsibility and scenes depicting such behavior may be defamatory.
Fairstein was dropped by her publisher and forced to resign from boards of her alma mater Vassar College and three nonprofits after the Netflix series started streaming and a hashtag, #CancelLindaFairstein, began trending.
The series’ director and producer, Ava DuVernay, and writer and producer, Attica Locke also face defamation claims.
Additional Reading
Netflix must face ex-prosecutor’s defamation lawsuit over Central Park Five Series, Reuters (August 10, 2021)
Netflix Must Face Central Park Five Prosecutor’s Defamation Suit, Bloomberg Law (August 10, 2021)
Defamation Law, Justia
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