A lawsuit against Netflix and When They See Us director Ava DuVernay can move forward, a federal judge ruled Monday, saying certain scenes can be considered defamatory against former prosecutor Linda Fairstein.
In his decision, U.S. District Court Judge P. Kevin Castel said that while most of Fairstein's lawsuit - which accuses the streaming giant and DuVernay of defaming her with their portrayal of her in the four-part miniseries - cannot be acted on due to creative licensing, there are five scenes in the show in which Feinstein could reasonably argue she was defamed.
When They See Us purports to tell the story of the so-called Central Park Five - five young black men who were wrongfully convicted of raping a young woman as she jogged in Central Park in 1989. The documentary relied on public records of the arrest and trial of Korey Wise, Raymond Santana, Kevin Richardson, Yusef Salaam and Anton McCray to tell the story.
It was billed as fact-based in social media posts and advertising trailers, which described it as 'the real story of The Central Park Five' and '100% real.'
Fairstein, 72, served as the head of the Manhattan District Attorney's sex crime unit at the time, and while she did not personally prosecute the case, she served as a key witness in the trial.
Castel ruled that the five potentially defamatory scenes show Fairstein 'orchestrating acts of misconduct, including the withholding of evidence of "tapes" showing that she "coerced" confessions from the Five, an instruction not to use "kid gloves when questioning suspects and directing a racially-discriminatory police roundup of young men in Harlem'.
'The average viewer could conclude that these scenes have a basis in fact, and do not merely reflect the creators' opinions about controversial historic events,' he wrote in his decision.
A federal judge on Monday allowed Linda Fairstein's lawsuit against Netflix and When They See Us director Ava DuVernay to move forward
In order to win the case, Fairstein would have to prove that director Ava DuVernay knew her depiction of Fairstein was wrong and she acted with 'malicious intent'
The four-part miniseries When They See Us purports to tell the story of five young black men who were wrongfully convicted of raping a young woman as she jogged in Central Park in 1989, relying on public records of the arrest and trial of Korey Wise, Raymond Santana, Kevin Richardson, Yusef Salaam and Anton McCray to tell the story
Fairstein was portrayed in the show by Felicity Huffman as the show's central villain, Castel wrote.
In several scenes, though, Castel rules that Huffman's portrayal of her and her role in the case was not accurate.
'In one sequence, she intentionally delays the production of critical DNA evidence to defendants until the eve of trial,' Castel explains, 'and in others, she instructs members of the New York Police Department to engage in harsh investigation techniques.'
Those scenes show Fairstein, played by Huffman, refusing to offer up evidence of a semen-stained sock near the rape scene, containing DNA that did not belong to any of the five defendants, and in the other, she is seen in the 24th Precinct telling cops to pursue young men of color.
'Every young black male who was in the park last night is a suspect in the rape of that woman who is fighting for her life right now,' Huffman, as Fairstein, tells the cops. 'I want units out strong. Come on guys? What did we miss? Let's get an army of blue up in Harlem.
'You go into those projects and you stop every little thug you see,' she tells the cops, over a montage of police stopping young black men.
Fairstein served as the head of the Manhattan District Attorney's sex crime unit at the time, and while she did not personally prosecute the case, she served as a key witness in the trial
She was portrayed in When They See us by Felicity Huffman
Five black youths were ultimately charged and convicted of the heinous and high-profile crime: Korey Wise, Raymond Santana, Kevin Richardson, Yusef Salaam and Anton McCray. NYPD mug shots taken of the Central Park Five on April 23, 1989. Top Row (L-R): Salaam, Santana. Lower Row (L-R) Richardson, Wise and McCray
In reality, Fairstein argues, she never denied any evidence nor did she tell the police what to do in their investigation. She also denies calling anyone 'thugs.'
Another scene at the end of the show, her last appearance in it, shows her and a colleague revisiting the case following The Five's exoneration in 2002.
She tells the colleague in the scene: 'You're here to gloat. It doesn't matter, you simply identified a sixth rapist. I always said there may be more.'
The colleague then responds: 'You said that to cover because you knew you coerced those boys into saying what they did.'
Netflix had argued that the conversation was 'hyperbolic expression,' according to Hollywood Reporter, but in his decision, Castel ruled that a reasonable viewer could see the suggestion that Fairstein coerced the boys into making false confessions was factual.
The decision, which also denied Netflix's motion to dismiss the case and Fairstein's claim that the company and DuVernay conspired to paint her as the villain, allows Fairstein's March 2020 lawsuit against Netflix, DuVernay and write Attica Locke to proceed.
She would just need to prove that Netflix and DuVernay knowingly portrayed her wrongfully and with malicious intent.
A Netflix spokesperson told DailyMail.com: 'We'll continue to vigorously defend When They See Us and the incredible team behind the series, and we're confident that we'll prevail against Ms. Fairstein's few remaining claims.'
Fairstein has become a prolific mystery writer in the years since The Five were exonerated
Fairstein has argued that the portrayal of her in the show is so egregious that it 'cannot be justified as the mere use of artistic license or dramatization.'
She claimed the show falsely showed her using 'inflammatory language' by referring to the young men of color as 'thugs,' 'animals' and 'bastards' - terms she said she's never used, and falsely paints her as 'the singular mastermind behind a racist plot to obtain convictions of The Five at any cost.'
As a result, the lawsuit states she has received death threats, as the hashtag #CancelLindaFairstein trended on Twitter, with some calling for her to 'die a horrific and painful death,' be 'hung and quartered' and 'knocked out, stomped and spit on.'
She also reportedly lost a book deal in her prolific mystery writer career she started after the Five were exonerated, and had to resign from her position on the Board of Trustees for Vassar College, as well as step down from her position on the boards of three nonprofit organizations.
She is seeking damages in excess of $75,000 as well as numerous concessions including a public apology from DuVernay and Locke and a prominent disclaimer at the start of each episode of When They See Us, which states that it is a dramatization, not a true story and that although characters are identified by their actual names they are not truthfully depicted.
Netflix said at the time: 'Linda Fairstein's frivolous lawsuit is without merit. We intend to vigorously defend Ava DuVernay and Attica Locke, the incredible team behind the series.'
