A horrible story appears in the NY Press. An 18 year old woman is reportedly raped in a Brooklyn park by 5 men – their ages ranging from 14 to 18. The woman’s father was reportedly threatened with a gun and chased away when he tried to protect her and stop the crime from occurring. Initial media reports that several suspects were arrested and that at least two of them “confessed to involvement in the crime.” The media and the populace immediately go into vigilante-posse mode and decry the perpetrators and demand that they be treated as adults in adult court (as permitted by NY law). Talking heads appeared on cable news shows talking about the psychology of group violence.
Simultaneously, the nation was in the grips of an obsession with the Netflix documentary series “Making a Murderer” chronicling the arrest and prosecution of Steven Avery and his nephew Brendan Dassey. While the series was dealing with one murder case in rural Manitowoc County Wisconsin, the show opened up a national dialogue on overreaching police; overzealous prosecutors; the ineffectiveness of Len Kachinsky; the phenomena of false confessions; whether the criminal justice system as currently operated in most areas lives up the ideals of the Constitution; and the overall difficulty and pressure of being caught up in that criminal justice system.
Yet here, no one was mentioning the possibility that maybe we were not getting the whole story on the Brooklyn rape case. The information that was fed to us was taken as gospel. No one even hinted at the possibility that maybe some of the boys charged were not guilty. Just from hearing the facts of the case, the community had convicted the accused. Now, I am not saying they didn’t do it. But remember that as potential jurors, we need to presume them innocent. We need to keep an open mind and not pre-judge the case before we have all the facts. These are young men charged with a horrific crime. They need all the help the Constitution provides. Let’s all remember that most of us (myself included) were sure -absolutely sure- of the guilt of the Central Park Five only to be proven dramatically wrong.
And when I first heard the account of this case, as I was discussing it with my wife, I said that something just did not seem right to me. How was the father shooed away – yes a gun was pointed at him allegedly but I said that I would likely die trying to save my child from a gang rape. How did five men all rape a woman in the 12 minutes it took for the father to call the police and get them to arrive at the park – where the girl was found half-clothed but the assailants were gone. And sure enough these last few days and into today, we are learning some more information that is very troubling.The complainant did not report ever seeing a gun as the father alleged. Furthermore, a police official was quoted yesterday saying “The initial report that all five of them raped her, is not looking like it happened that way.” She now said that only one man raped her while two others forced her to have oral sex and the others grabbed her breasts. It appears both the girl and her father were heavily intoxicated, having gone to the park specifically to drink – intoxication of the victim is not a defense to rape of course but that fact does possibly alter her ability to properly identify the alleged assailants. Videos of the father entering two stores to ask for a phone do not show him as being in serious distress or even saying what he needed the phone for. What about the alleged confessions? Yesterday I read in the NY Times that none of the boys giving statements actually admitted to committing the rape or any crime. Two of the suspects said a third suspect had sex with the complainant. That suspect said he was on the phone the whole time and did not know what his friends were up to. So three admitted to being present but none admitted to direct participation in the crime. Exactly the scenario in the Central Park Five case and in the case of my client David McCallum, who served 29 years for a murder he did not commit based solely on his confession which placed him at the scene while his co-defendant allegedly shot the victim;his co-defendant Willie Stuckey (also cleared of the murder but who died in prison after having served 16 years) was made to say he was there while he saw David McCallum commit the murder. Also, in the Brooklyn park case, the three suspects specifically denied ever having a gun or seeing a gun among their group that night. Did the suspects commit these horrific acts? I have no idea. Only they and the complainant know for sure. All of them could very well be guilty; some of them could be guilty ; none of them could be guilty. The complainant could be 100% truthful; she could be partially accurate she could be making up material elements of the case. The point is we just don’t know right now and we should not rush to judgment. More videos might turn up adding details yet unknown; medical records could shed more light on the case; and of course the rape kits may yield DNA results. All I am saying is let’s not shoot first and ask questions later.
These past two years the country has seen an unprecedented wave of exonerations. As a lawyer who has been involved in the innocence community for nearly 15 years, it was heartening for me to see people open their eyes to the possibility that our beloved American system of justice sometimes gets it very wrong. Folks even began to understand that people – especially young people- sometimes confess to crimes they didn’t commit.Its emotionally rewarding to see exonerees receive settlements that acknowledge the harm done to them by this society. But it would be a tragedy if we don’t take these lessons learned and apply them to new allegations of crime. If we just convict those accused of crimes at the outset based on media or police accounts without a fair hearing what have we really learned? We need to value and apply the protections the Constitution affords those accused of crimes – the presumption of innocence; the right to remain silent the right to competent and effective counsel; the burden of proof beyond a reasonable doubt – at the front end of a criminal prosecution. That is the surest way to reduce the scourge of wrongful convictions – by avoiding them in the first place.
follow me on Twitter @oscarmichelen