January, 2003
A Different Drummer
On December 5, Manhattan District Attorney Robert Morgenthau asked Manhattan Supreme Court Justice Charles Tejada to vacate the convictions of five men in the 1989 Central Park Jogger attack, as well as for attacks on other victims the same night. Defendants Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana and Kharey Wise have all completed their prison sentences. On December 19, Tejada granted Morgenthau his wish.
The men were convicted variously of rape, sexual assault, attempted murder, and riot in the first degree. They were part of a group of as many as forty predominantly black teenagers (the others were Hispanic) who went to Manhattan's Central Park on April 19, 1989, expressly to engage in "wilding," i.e., to attack whites. The mob carried out at least 12 separate attacks, including the assault and rape of "The Jogger," whom they left for dead. The woman lost 75 percent of her blood, and remained in a coma for 12 days. And yet, only six defendants were ever prosecuted for the crimes of that night. McCray, Richardson, Santana and Wise all were questioned and confessed on videotape in their parents' presence to attacking The Jogger and other parkgoers. Salaam did not sign or videotape a formal confession, but made self-incriminating statements, including admitting to having beaten The Jogger over the head and in the ribs with a metal pipe. (Outside of defendants and their lawyers, the legalism regarding Salaam having admitted, but not "confessed" to the attack, is a distinction without a difference.)
DA Morgenthau now argues that since another man, 31-year-old convicted rapist-murderer Matias Reyes, has confessed to having raped The Jogger alone, and semen found at the scene was a DNA match to Reyes, that had the juries in two trials (of different defendants) known this information, their verdicts would likely have been "more favorable" to the defendants. Once the statute of limitations passed in the Jogger Case, Reyes got religion, and has since confessed to four other rapes for which he can no longer be prosecuted.
Matias Reyes' confession was full of gaps regarding the details of the attack. But he did say that he had not gone as far north as where The Jogger was attacked. The Jogger attack also did not match Reyes' modus operandi. And Reyes, an average-to-smallish-sized 18-year-old at the time of the attack, has insisted incredibly that he was able to drag the Jogger, an extremely fit woman fighting for her life, 200 yards all by himself.
Already in 1989, it was public knowledge that not all of the Jogger's attackers had been caught, and that semen found at the scene had not been tied to the suspects in custody. In their confessions, defendants mentioned an accomplice named "Tony." Only recently did it surface that Reyes' street name was "Tony."
Morgenthau also justified vacating the verdict in the Jogger Case, because prosecutors had failed to come up with "an alternative theory" of the events that night. Morgenthau's theory is that the defendants were too busy attacking other people to have had sufficient time to also attack The Jogger. Morgenthau then violated logic, law, and morality, by demanding that the convictions in the other attacks also be vacated.
(It is defense counsel's job, not the prosecutor's, to provide an "alternative theory." Following the 1990 convictions, defense attorney Peter Rivera acknowledged that "We didn't say, ‘No, when The Jogger was raped, my client was on 96th Street, mugging someone else.' That would have been self-defeating." Howard Diller, who defended another Jogger defendant, admitted that “They convicted themselves with their own statements. We could not overcome them.”)
Morgenthau's decision, outlined in a 58-page report authored by Assistant District Attorney Nancy E. Ryan with ADA Peter Casolaro, outraged the supervising prosecutor, the main detectives on the case, and police officials.
Linda Fairstein, who recently retired after thirty years as a Manhattan prosecutor, told New York newspapers she is certain that Reyes "is lying," and that the five defendants participated in the attack on The Jogger. "Absolutely. They were part of the pack that saw the jogger, attacked her with a pipe and began to physically assault her as well as sexually assault her.... "I find [Reyes'] story about acting alone completely incredible. I think most of them [the five convicted defendants] ran off before the completion of the attack. My view is that Reyes is the only one who did complete it."
A team of thirty detectives cracked the case. Lead Detective Humberto "Bert" Arroyo told ABC News, "I believe these kids did it. They said they did it. The videotapes [of the defendants' confessions] speak for themselves."
Speaking to the New York Post, several of the detectives "accused Morgenthau of reneging on his promise to lead 'a fair, impartial and complete' review.
Legendary detective Mike Sheehan, now a TV reporter at local Fox 5 News said, "I'm shocked at Morgenthau. This shows they have no respect for us and no respect for the victims in this case." Retired Det. Capt. Sal Blando recalled, "They were singing and laughing. I'm outraged by this decision. This is a travesty of justice." And Retired Det. Capt. Ken Rowe said, "I visited that woman numerous times in the hospital. I remember her injuries. There's no way one person did that to her. She was on the verge of death."
Personal revenge reportedly played a role in the DA's report. ADA Nancy E. Ryan is a longtime adversary of the recently retired Linda Fairstein; in 1989, Ryan was passed over for the Jogger prosecution. Law enforcement sources say that Ryan was simply interested in undermining Fairstein's case. Ryan did not interview Fairstein, lead courtroom prosecutor Elizabeth Lederer, or most of the detectives from the case, and interviewed one detective for only fifteen minutes, forbidding him to check his notes.
Unnamed NYPD officials told New York Newsday crime beat writer Leonard Levitt, that ADA Ryan made it impossible for the NYPD to re-investigate the case. Ryan forbade detectives from administering a polygraph examination to Reyes, interrupted them whenever they asked him questions in jail, and went so far as to telephone the lawyers of Reyes' fellow inmates, telling them to advise their clients to refuse to cooperate with detectives.
The legal term for such misconduct is "obstruction of justice." The fix was in.
The degeneration of justice in the Jogger Case did not happen overnight. Judge Vito Titone's minority opinion in Yusef Salaam's 1993 appeal of his convictions, anticipated the outrage to come. Salaam argued that because he was a minor when he was questioned, his self-incriminating statements to police should be suppressed, and his convictions vacated.
At his family's apartment, the 15-year-old Salaam told police, in the presence of family and friends, that he was 16, showing officers a school transit pass that said he was 16. However, that strategy backfired. Had Salaam told the truth about his age, detectives could not have questioned him without a parent, adult, or attorney present. But in New York State, 16-year-olds are adults regarding such crimes, and are entitled to no such protections. Salaam's friends and even his own mother initially supported the deception. One of those friends was Salaam's "Big Brother," federal prosecutor David Nocenti. In going along with the fraud regarding Salaam's age, and demanding, as an attorney, to see an adult suspect he was not representing, Nocenti's actions constituted obstruction of justice and professional misconduct, for which he could have been prosecuted and disbarred.
Meanwhile, at the police precinct, the majority decision observed that Salaam "was given complete Miranda warnings. Defendant invoked none of the recited protections and chose instead to give a detailed statement implicating himself in two of the attacks under investigation, including specifically the attack on 'the Central Park jogger.'"
In Judge Vito Titone's dissenting opinion in support of Salaam, he insisted that police should have ignored the law, and treated Salaam like an "infant," refusing the opportunity to question him. The majority disagreed, ruling that police had acted in good faith, and that Salaam was responsible for his "deception and chicanery."
It was a short path from Titone to Morgenthau. On December 6, the day after DA Morgenthau issued his report, the Rev. Al Sharpton demanded that the detectives who broke the Jogger Case, and the prosecutors who won it, be investigated and prosecuted.
Middle American News.
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