Gorycki, Miltenberg, Bernstein: “Netflix Libel Trial to Feature Full Central Park 5 Series,” Law360


Jurors will watch Netflix’s entire four-part dramatization of the Central Park Five rape case and exoneration before deciding whether the series defamed a longtime top prosecutor in the Manhattan District Attorney’s Office, a New York federal judge ruled Wednesday ahead of the trial. U.S. District Judge P. Kevin Castel made the decision during a final conference for the trial starting May 6 over the 2019 Netflix series “When They See Us,” which dramatized the conviction and ultimate exoneration of five teens, all of them people of color, for the brutal 1989 rape of a jogger in Central Park. Linda Fairstein, the former head of the Manhattan district attorney’s sex crimes unit who led the Central Park Five prosecution, alleges in a 2020 lawsuit that Netflix, director Ava DuVernay and screenwriter Attica Locke rewrote history to falsely portray her as racist and unethical. Fairstein claims she faced massive backlash and lost her lucrative post-prosecution career as a crime novelist. Judge Castel previously narrowed the suit to just five potentially libelous scenes, including one that depicted Fairstein instructing police officers to harshly interrogate the suspects. The former prosecutor had argued that those are the only parts of “When They See Us” that should be shown to a jury, but the judge agreed with Netflix on Wednesday that all four episodes should be played in their entirety during the trial. “The defamatory meaning, or not, is only properly devised from the series as a whole,” Judge Castel said during the conference. “Starting on the third day of testimony, the court will play one episode per day.” The judge also granted Netflix’s bid to split the trial into two pieces. The first will decide liability and compensatory damages, with a potential punitive damages phase to follow depending on the initial verdict. Netflix secured additional pretrial victories Wednesday when Judge Castel allowed the streaming service to call as a witness Yusef Salaam, one of the Central Park Five who now serves on the New York City Council, but denied Fairstein’s bid to have best-selling novelist Nelson DeMille testify about her once-stellar reputation in the author community. Fairstein, meanwhile, won her motions to tell the jury about violent threats she received after the series aired and to exclude private emails in which she used derogatory language. Judge Castel also granted the ex-prosecutor’s motion to introduce evidence about Netflix’s profit motives. “This is a work of art that has its success measured by the number of viewers, and it is appropriate for the plaintiff to inquire and explore whether this goes to the defendants’ recklessness or knowledge of falsity,” the judge said. The Central Park Five were convicted at trial in 1990 based on post-arrest confessions they subsequently retracted as false and coerced. All the men served time in prison, but their convictions were vacated in 2002 after a serial rapist confessed to the assault and prosecutors found that his DNA matched crime scene evidence. New York City reached a $41 million settlement with the Central Park Five in 2014. Fairstein is represented by Kara L. Gorycki, Andrew T. Miltenberg, Stuart Bernstein and Rodman W. Streicher of Nesenoff & Miltenberg LLP and Henry E. Klingeman of Klingeman Cerimele Attorneys.

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