The Central Park Five ~ A brutal rape; a brutal prosecution

On April 19, 1989 a brutal, ruthless rape was perpetrated against a young lady who came to be known as the Central Park Jogger.  With a crime wave sweeping through New York City, this crime became the embodiment of the fear buried in the heart and mind of every New Yorker.  The intense media focus on the Central Park Rape fueled our collective fear and anger, and intensified the call for justice and revenge.  I recently watched the Central Park Five Documentary and many memories came to mind.  Not just informational, the film highlighted many weaknesses of our criminal justice system.

At the time of the Central Park Rape, I was an FBI Agent on the FBI-NYPD Drug Task Force.  The volume and nature of our work epitomized New York City’s violent crime epidemic. Times were tough and the state of the city was nothing less than frangible.

A few years earlier, Bernie Goetz, a middle age white male, shot four African-American youths on the subway, claiming he feared for his safety.  Goetz became widely lionized and dubbed the Subway Vigilante.  Public support for Goetz culminated in his not-guilty verdict for all charges except illegal possession of a weapon.  Crime and violence were the issues of the day in New York City.  The Central Park Rape seemed to be the last straw.

Immediately following the rape, five young men, aged 14 – 16 became the focus of the investigation.  These boys had been out that evening, in Central Park “wilding” – a term used at that time which was self-explanatory.  Based on my 27 year law enforcement career, I understand why the investigation focused on these boys; given the nature and locale of their conduct, that focus was reasonable.  What evolved afterwards was not reasonable.  What followed was institutional failure to prevent the foibles of human nature from prevailing over reason, fairness and professionalism.  This failure was so egregious, we must wonder if it was intentional, not just negligent.

New York City Police detectives are the most experienced in the world.  They know how to investigate and they know how to work the system.  The same can be said for the prosecutors. The film highlights how the police became so tunnel-visioned, so intent on clearing the case – as opposed to truly solving it, they abandoned their sense of justice and integrity.  Surely there was pressure from the public, the media and police brass to solve the case, but the NYPD did not exercise the necessary controls to assure that all that pressure did not prevail over the truth.  The film also highlighted the over aggressiveness of the prosecutors.

One point that hit a nerve with me was that the prosecutors also acted as investigators.  During my career with the FBI, I often had tense relationship with United States Attorney prosecutors as I sought to maintain an arm’s length between investigation and prosecution.  Investigators are charged with finding the facts lawfully, thoroughly and fairly.  The goal is not to produce an investigation gift-wrapped for prosecution.  To blur the lines between investigation and prosecution denies the independence of duties and responsibilities so integral to due process.

Though all the defendants confessed, there were clear signs of abusive tactics and coercion.  No physical evidence or DNA supported the police and prosecution version of events.  Yet, the prosecution moved forward and juries convicted all the young men.  Years later, the convictions were overturned when the real perpetrator was identified.

How does this happen?  How do we engage in such a miscarriage of justice, either intentionally or unaware of what we are doing?  This is not the first case of wrongful conviction.  Since 1989, there have been more than 2000 wrongful convictions. Even when we attempt to be fair and make the best decisions, we are vulnerable to many faults in our thought processes – cognitive biases, ego and perception, to name a few.  I discuss these and their impact on business and the criminal justice system in my first book, Walking the Corporate Beat: Police School for Business People.  In August 2011, I blogged about another wrongful conviction: The West Memphis 3.  I also blogged about my belief in a professional jury system to improve the quality of jury decisions.

Our criminal justice system is the best in the world.  Its biggest vulnerability is the human factor.  As we cannot exclude human involvement, we must plan for it.  Checks and balances, independent oversight and accountability are steps towards quality assurance.

Speaking of accountability, there is a pending lawsuit against the city, brought by the Central Park Five.  A New York City official said, “…we believe that no constitutional violations occurred.”   That speaks volumes.

The FBI Interview of Boston Bombing Suspect ~ Something is not adding up

Before posing any question as to whether the FBI dropped the proverbial ball when they interviewed Boston Bombing Suspect Tamerlan Tsarnaev in 2011, let’s remember a very important fact.  The FBI, with its federal, state and local law enforcement partners conducted an outstanding investigation and quickly apprehended the suspects.  The law enforcement community deserves our praise and thanks.  However, questions remain and it is fair to expect honest answers.

Shortly after the arrests, the media reported that a “source” revealed that the FBI had interviewed Tamerlan.  This interview was predicated on foreign government information that Tamerlan had terrorist inclinations.  “Source” in law enforcement parlance means “leak” and someone in a position to know, found this important enough to leak to the media.  The foreign government is believed to be Russia, based on Tamerlan’s Chechyan roots.  That is not to suggest that having Chechyan roots equates to terrorism; any such generality is bigoted and ignorant.  But, Chechyan terrorists were responsible for the Moscow theater hostage crisis in 2002 resulting in over 100 deaths and the Beslan school hostage crisis in 2004 resulting in over 300 deaths.

The first response to the disclosure of the FBI interview of Tamerlan was that after finding nothing significant, the FBI asked the foreign government for more information and did not hear back.  Something about that statement rings untrue.  The FBI has agents stationed all over the world, including Moscow.  Since 9/11, we have established strong counter-terrorism partnerships even with uneasy allies.  When in Moscow, I met with the FSB (“Russian FBI”) and discussed our joint counter-terrorism efforts.  The criteria for initiating a terrorist inquiry are not burdensome. “Not getting back to us” is not a reason for discontinuing a terrorism inquiry.

Then came the question of how Tamerlan, less than a year after the FBI interview, traveled to Russia in 2011 with nobody knowing.  Shortly after this trip was disclosed, House Intelligence Committee Chair Congressman Mike Rogers  suggested that Tamerlan traveled under an alias.  Then Senator Lindsey Graham said that Tamerlan traveled undetected because his name was misspelled.  Either way, unless Tamerlan was on one of the multitude of “watch lists” I do not believe the government would have been notified of his leaving the United States.  Today, Homeland Security Secretary Janet Napolitano said that even though Tamerlan’s name was misspelled, redundancies in the system did alert authorities to his travel.  But she said that by the time Tamerlan returned six months later, the FBI alert had expired and his re-entry was not noted.  That also does not ring true.  Had Tamerlan traveled to Russia while under FBI investigation, that trip would have been monitored and coordinated with the Russians, based on their warning.

We may never know the facts surrounding the interview of Tamerlan.  I recognize the great police work that was done after the bombing.  But, as for the various explanations of Tamerlan’s FBI interview, methinks the government doth protest too much.

International vs Domestic Terrorism ~ A Primer

One of the first questions that arose after the Boston Marathon bombing, and continues to be asked, is whether this was an act of international or domestic terrorism.  Some clarification may help understand the nature of these investigations and subsequent prosecutions.

International and domestic terrorism are defined by United State Code Title 18 – Crimes and Criminal Procedure.  Accordingly, acts of terrorism are criminal acts and prosecuted as such.

International terrorism as defined in part, by Title 18 involve violent acts that are dangerous to human life, in violation of criminal laws and that occur primarily outside the territorial jurisdiction of the United States.  There are additional factors relative to coercion and intimidation.

Domestic terrorism is defined basically as the same acts, except that the acts occur primarily within the territorial jurisdiction of the United States.  Those acts may include planning, training, obtaining materiel and other activities directly or indirectly related to the terrorist act.  The 9/11 hijackers were foreign nationals who acted inside the territorial United States.  However, as they planned, trained and initiated their terror outside the United States, they could have been prosecuted as international terrorists.  Someone who is domiciled in the United States, who planned and committed terrorism within United States territory, is a domestic terrorist.

So, what is the difference in prosecuting international vs. domestic terrorism?  International terrorism would be prosecuted under Title 18 Section 2332B – Acts of Terrorism Transcending National Boundaries.  Domestic terrorism may be prosecuted under various offenses such as use of weapons of mass destruction or explosive devices.

For example, Faisal Shahzad, known as the Times Square Bomber was an American, born in Pakistan.  Because he traveled outside the United States to train for his attack, he was charged with international terrorism.  However, he was also charged with using weapons of mass destruction as well as destructive and explosive devices – the same charges against the Atlanta Olympics Bomber Eric Rudolph and Oklahoma City Bomber Timothy McVeigh.

We seem to have a mental picture of what each type of terrorist looks like.  The perpetrator’s ethnicity or ideology is not the factor that differentiates international from domestic terrorism.

We must be cautious not to jump to conclusions or fall victim to the dark side of profiling.  After the Atlanta Olympics bombing, much law enforcement effort was expended targeting the wrong man who fit “the profile.”  If you are interested in profiling, please read my blog, The Last Criminal Profile.

This investigation of a heinous terrorist act is progressing quickly.  Arrests will be made soon.  Whether the Boston Marathon Bomber(s) is prosecuted under international or domestic terrorism statutes, there is one very important point to remember – they both carry the potential of the death penalty.