Three men exonerated in the 1989 Central Park Jogger case: Yusef Salaam, left, Kevin Richardson, second left, and Raymond Santana, right, in 2012. Photo: Frank Franklin II/AP

"I don't think there is a question in the minds of anyone present during the interrogation process that these five men were participants in the attack on the jogger"

Joel Cohen's thoughtful piece (New York Law Journal, August 13, 2019) on the prosecutor's responsibility, when confronted with past error, brings into focus the all too frequent schism between the advocate as a professional and that advocate's human frailties.Thus, the assistant district attorney overseeing the prosecution of the five teenagers wrongfully convicted of brutally assaulting a jogger in Central Park in 1989, recalls her contemporaneous assessment of the police interrogation, as quoted above.

And notwithstanding the thorough debunking of those interrogations by reams of evidence, an extensive detailed analysis by the late District Attorney Morgenthau, as supported by a judicial decision, and a precise confession by the actual, lone assailant, an experienced participant associated with the prosecution clings to her first impression. This expression of certainty, in fact, reflects just what went wrong under the watch of the assistant district attorneys who allowed their "gut feelings" to displace their professional obligations.

It is the role of the police to conduct investigations in situations such as occurred that frightening night. Given the emotions and confusion surrounding the arrests, the prosecutors' role to oversee objectively the police performance becomes especially critical.  However helpful the line prosecutors may be in assisting the police in their initial scrutiny, they must never abandon their responsibility to critique the process.

It is essential that the work of the line detectives is scrutinized, and it is the assistant district attorney's role to conduct that scrutiny. That that responsibility was abandoned by the prosecutors of these fifteen (and one sixteen) year olds has been recognized by most as a horrific lapse. That the most senior of those prosecutors should remain glued to her spontaneous belief, formed during the initial hours of all-night interrogation, reflects a continuing inability to step back and recalibrate.

Cohen separately hypothesizes that maybe the former prosecutor "only wanted a full airing of the case so that her side would be told."  But she obtained her "full airing," just not the one she would have written. The fact is that prosecutors too frequently "try their cases" in forums other than courtrooms. The post-indictment press conference is a given. The smaller the community the more tainted the jury pool.

The more sensational the accusation, the greater the coverage, unprotected by the niceties of judicial oversight.  The pushback then comes from those defendants who can fund their own public relations teams, with a similar lack of constraint. The community is entitled to know the who and why of an arrest, what the charges are, what happened at the arraignment and the ensuing court proceedings. But how much fairer the process would be if all prosecutorial embellishments to journalists were forbidden once arrests are made. An independent press corps is able to do its own reporting without added cheerleading from the prosecutors.

I do think that Cohen overlooks a significant impediment in hypothesizing that separate prosecutions might have been pursued "based on conduct [of the five youngsters] that took place at different locations in Central Park" that night. In order to prove other assaults beyond a reasonable doubt, the prosecution would have been confronted with five separate "confessions" obtained by that same investigating team, each of which was provably false. That is a barrier that was doubtless considered in the Morgenthau decision to close the doors with finality on what Cohen correctly identifies as a "colossal injustice."

Eric A. Seiff represented Korey Wise, the oldest of the wrongfully-convicted Central Park Five, at the dismissal proceedings.

Read More:

Under Fire, Central Park Five Prosecutor Steps Down From Columbia Law

In Defense of The Central Park 5 Prosecution