When They See Us vs. Richard Jewell

Most of a year late, I finally watched Ava DuVernay's four-part miniseries, When They See Us, based on the story of the Central Park Five (or as DuVernay and others now call them, the Exonerated Five). It's excellent, on Netflix, and I highly recommend it. Don't let anything I write from here on keep you from watching it.

I have just one argument with a choice DuVernay made in modifying the facts of the story. Like all dramatizations, some things are elided to fit into the time allotted and keep a tight story line, are shown from one character's point of view, or even are created out of whole cloth, such as dialog that could not have been overheard between two prosecutors — and that's to be expected and allowable in this genre, I think. I don't have a problem with that: you can watch the Ken Burns documentary to get all the details or read Joan Didion or even the Wikipedia page.

But there's one particular sequence in episode 2, which covers the trials, where a legal matter is presented as fact that is known to be otherwise from the court record, and I don't know why DuVernay made that choice. I think it undermines the credibility of the whole presentation.

I guess what is written below is a spoiler if you haven't seen the series, but it's not much of one, since the Central Park jogger case is 30-year-old news.
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Basically, DNA testing was relatively new at the time of the trial, and there was no match from the rape kit to any of the young defendants (not surprising, since they didn't do it, as was later determined when another man confessed). But separately, a sock was later found at the scene that had semen on it, which also did not match the defendants. In the show, the prosecution is shown discussing withholding this exculpatory evidence from the defense.

When I saw that, my many years of Jack-McCoy-Law-&-Order-watching kicked in and I said to myself, "They can't do that!" In court, one of the defense lawyers makes an expert witness explain the lack of a match, after the witness accidentally mentions the sock. It's played as a very dramatic moment in the script, and afterward the defense attorney confronts the prosecutor, asking her for an apology. I was yelling at the TV, "Apology? She should be brought up before the Bar for that!" -- since it happened to Jack McCoy once on L&O for just that reason, which makes me an expert. Ha.

This got me wondering if it really happened that way, so I looked it up and found…that it did not. The sock was mentioned by the prosecutor in her opening statement, along with the main rape kit sample, and the fact that the DNA was inconclusive on both samples.

I don't think I would be writing about this if it weren't for the recent Richard Jewell movie, made by Clint Eastwood about the man who was falsely accused of the Atlanta 1996 Olympics bombing. You may have heard about how Eastwood's version shows a woman reporter from the Atlanta Journal-Constitution sleeping with an FBI agent to get the scoop on Jewell, when that is completely untrue. The AJC has demanded a correction from Eastwood's studio and may be pursuing legal action. The reporter, Kathy Scruggs, died in 2001 and so cannot defend herself, which makes it extra vile.

When I read about the reprehensible lie in Jewell, I thought there was no excuse for it and knew that it would make the film unwatchable so I don't plan to ever see it. It's clearly part of the film's (and Eastwood's) overall agenda to indict the media and the FBI as incompetent and biased. The idea that women reporters sleep with their sources is an old and vicious lie that needs to be denounced whenever it's made. (It's the reason I stopped watching House of Cards after a few episodes. Oops, spoiler alert.)

But after watching When They See Us and realizing the exculpatory sock evidence was misportrayed, I realized this is an almost perfect case for testing whether I am consistent or not. We're often asked to look for a counter-example when something happens we disagree with, right? Did you think it was wrong for Obama to kill Osama bin Laden, for instance, if you think it was wrong for Trump to kill Qasem Soleimani, for instance? (You could argue with whether those two situations are equivalent in other ways, but you get the idea.)

Falsely showing a prosecutor withholding exculpatory evidence is on a similar level of badness to showing a woman journalist sleeping with a source, in my opinion. They're both defamatory of the person's professional ethics and competence, and probably fireable offenses.

So if I think that Clint Eastwood was very, very wrong to defame a dead woman in Jewell, I must also think Ava DuVernay is at least somewhat wrong to defame a live woman in When They See Us, even if the prosecutor may have gone along with other ethically questionable aspects of the case (and it's hard to believe she could have read the boys' interviews and thought they held together as a coherent prosecution). And I do think DuVernay was wrong, and that it weakened the show. The momentary drama it added didn't make any sense, since it only raised false hope that the boys would be found not guilty in their trial — which they were not.

To wrap up: this is one small thing in five-plus hours of excellent, moving work. Don't let it stop you from watching it, if you haven't already. I'm glad I saw it.