Ava DuVernay’s “When They See Us” brought into sharp focus the harrowing injustices in the case of the Exonerated Central Park Five—five African American and Latino teenagers who were wrongfully convicted for the brutal rape of a woman in Central Park in 1989. It understandably spurred calls for Manhattan District Attorney Cyrus Vance to conduct a thorough review and audit of all cases handled by Linda Fairstein, the lead prosecutor on the case. But District Attorney Vance is the wrong person to oversee that review and, in any event, has now said he will not do so. Because of Vance’s overriding conflict of interest in this matter, the governor should issue an executive order appointing the New York attorney general as a special prosecutor with jurisdiction to reopen the Fairstein cases.
Vance’s conflict of interest has been little discussed, but it is clear and a matter of public record. Linda Fairstein was an early and prominent supporter in Vance’s first campaign for district attorney and has donated more than $25,000 over the years to his campaigns. And even after Sarah and Ken Burns’ PBS documentary “The Central Park Five” laid bare Fairstein’s unapologetic mishandling of the case, Vance still invited her to emcee the gala fundraiser for his re-election.
Fairstein has been quoted as a Vance adviser and is close enough to the DA that Vance asked Fairstein to publicly defend him after he dropped sexual assault charges against Dominique Strauss Kahn. And, a close friendship with the head of the office’s sex crimes unit empowered Fairstein to try to facilitate a meeting with Harvey Weinstein’s defense team which, Fairstein admits, “is the kind of thing I do four to six times every year.”
Under New York State law, when there are issues of conflict of interest like this, a governor may compel a district attorney to step aside and give the attorney general jurisdiction to prosecute and investigate a criminal case. Governors have used this power many times. The attorney general becomes the prosecutor for the case, with the power to take control of the district attorney’s file, convene a grand jury, and file and dismiss charges. After the governor appoints the attorney general, the district attorney may only act in the case at the direction of the attorney general. The governor may use this power for any type of case where he thinks the attorney general should step in for a district attorney. The governor’s authority is virtually unreviewable by the courts. Courts have made clear that governors can confer jurisdiction on the attorney general for an entire category of cases, as the Fairstein review would be, and need not appoint the attorney general on a case-by-case basis. For example, Governor Nelson Rockefeller appointed the attorney general to investigate all cases in New York City concerning police corruption. Supplanting all five New York City district attorneys, Governor Rockefeller cited the Knapp Commission, which recommended that he appoint the attorney general because of public distrust and the need for a prosecutor independent from the NYPD.
Governor Rockefeller also gave the attorney general power to conduct policy investigations, separate and apart from criminal investigations. This additional authority permitted the attorney general to issue subpoenas and hold hearings to identify recommendations for policy changes. For the Fairstein cases, such authority would be helpful in identifying prosecutorial practices that could be changed to prevent wrongful convictions.
More recently, in 2015, the current governor used an executive order to appoint the attorney general to conduct criminal investigations for another category of cases: police killings of civilians where the civilian was unarmed or where, in the attorney general’s opinion, there was a significant question as to whether the civilian was armed and dangerous. As the first head of the unit that handled these investigations, I litigated the legality of the executive order: the resulting court order affirmed that the governor has almost unfettered authority to appoint the attorney general to handle any type of criminal investigation. Like the Knapp-era executive order, the 2015 executive order also gave the attorney general authority to conduct policy investigations. The 2015 executive order cites public concerns that investigations of police killings of unarmed civilians “cannot be prosecuted at the local level without conflict or bias, or the public perception of conflict or bias.” The very same reasoning applies to the Fairstein cases.
It is long past time for cases overseen by Linda Fairstein to be re-investigated by an independent special prosecutor. The governor should act swiftly. Justice requires it.
Alvin Bragg served as chief deputy New York State attorney general. He is a visiting professor and co-director of the Racial Justice Project at New York Law School.