ED KOCH COMMENTARY: The City Has a Right to Defend Itself By ED KOCH

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Koch_Ed - HeadshotThe New York Times
columnist, Nick Fox, put
together on the Times website a discussion concerning the rape of a young woman
in Central Park in April 1989 which resulted in the arrest and conviction of
five youths who became known as the Central Park Five.

They
were freed — after serving years in prison — at the request of then District
Attorney Robert Morgenthau who advised the court he had a doubt about their
convictions as a result of a convicted murderer and serial rapist stating he
had committed the rape, acting alone. The District Attorney after investigating
the case found that the DNA of the prisoner, Matias Reyes, matched the DNA
taken from the victim. The five defendants who had confessed to the crimes of
assault and rape of the victim were on application of D.A. Morgenthau freed by
a court. All five of the defendants are each suing the City of New York for
damages of $250 million in the aggregate for the time served by them in prison.

Ken
Burns, the distinguished documentary maker, has produced a film supporting the
five now plaintiffs against the City of New York in their claims for damages. I
have not seen the film, but will certainly do so. My interest will be that of
former mayor in office at the time of the incident, which I then referred to as
the "crime of the century" (it had an impact on New Yorkers because it
threatened the personal safety of Central Park users, similar to the fears of
the city population in 1977 during the Son of Sam killings when New Yorkers
were being shot and killed sitting in their cars 

Mr.
Fox requested that I provide my opinion on the pending civil litigation. I am
setting it forth, along with the statement of Celeste Koeleveld, executive
assistant corporation counsel. She provides more information on the options of
someone wrongly convicted of a crime seeking money damages when freed by court
order. 

The City Has a Right to Fight

By Ed Koch, November 19, 2012

Central
Park is a gem, a green oasis in the center of Manhattan. One evening in April
1989, a young female jogger was brutally beaten nearly to death and raped in
the park. The police made arrests; defendants confessed; the district attorney
prosecuted. After a lengthy hearing, a judge found that the confessions were
made voluntarily and were useable at trial. Jurors learned that DNA found on
the victim did not match DNA taken from any defendant, but still convicted the
defendants.

If
defendants are mistakenly convicted when police and prosecutors acted in good
faith, the city should not pay for a mistaken result.

Twelve
years later, a convicted murderer and serial rapist asserted that he, acting
alone, perpetrated this heinous crime. The district attorney investigated,
learned that this prisoner's DNA matched DNA taken from the victim, and moved
to vacate the sentences, which the court did. Then, the defendants and their
families sued the city for $250 million, and the gist of a new Ken Burns film
is that the city should give the defendants the money.

I
disagree.

I
know that the district attorney concluded that "there is a probability
that the new evidence … would have resulted in verdicts more favorable to the
defendants." But whatever doubts he had about the case, I know he never
declared the defendants to be innocent. I know that he did not find that the
prosecutors and police officers involved in the original investigation had
acted improperly, and that they deny engaging in misconduct.

If
the city's police deliberately and wrongfully harm individuals by violating
their rights, the city must accept responsibility and pay damages. But if
defendants who were not involved in a crime are mistakenly convicted by a jury
as a result of the efforts of police and prosecutors who were acting in good
faith, the city should not pay for a mistaken result. When Robert M.
Morgenthau
, the former district attorney, had a doubt about the convictions, he
took action. But, contrary to the view that, unfortunately, is becoming a norm
in our society, not every bad thing that happens makes someone entitled to
recompense by the government. Absent proof of intentional wrongdoing by the
city's agents, the city should not pay.

A Question of What Investigators, Not Defendants, Did

By Celeste Koeleveld, November 19, 2012

It's
important to understand what is — and what isn't — at issue in the federal
lawsuit against the city.

The
central question is whether the plaintiffs' convictions resulted from
wrongdoing or malice by the police and prosecutors – not whether the plaintiffs
are guilty or innocent.
 

To
win a federal civil rights suit, the plaintiffs must show that police or prosecutors
deliberately engaged in misconduct, and that is not the case.

People
may disagree about what happened in Central Park that night, but the simple
fact is, there was no wrongdoing or malice by the diverse group of women and
men who handled these cases. Our police and prosecutors did solid work with the
evidence before them. The charges against the plaintiffs were based on abundant
probable cause, including the plaintiffs' individual confessions, their
incrimination in other violent attacks in the park the same night, spontaneous
comments they made to officers and friends, statements by other participants in
the multiple attacks, witness accounts and physical evidence.

Let's
pause here for more legal context. In the incredibly tragic circumstance where
a person spends time in prison for a crime he or she did not commit, that
criminal defendant can ask New York State for compensation. If there is clear
and convincing evidence of innocence, such a person can collect money from the
state for the mistake. This kind of case doesn't require the plaintiff to prove
any wrongdoing by authorities – just his or her innocence. These plaintiffs
could have done that.
 

Instead,
they elected to bring a federal lawsuit, from which the monetary awards are
generally higher. But that choice means the plaintiffs must show that police or
prosecutors engaged in misconduct, for example, by deliberately withholding
evidence or coercing a confession.
 

Here
the plaintiffs claim that their confessions were coerced. However there is no
evidence to support that claim and never has been. The trial judge on the
criminal case conducted a six-week hearing, heard testimony from the plaintiffs
and their families, and issued a 100-page decision, on this very question. He
concluded that the confessions were voluntary and lawfully obtained. After two
trials before racially and ethnically diverse juries, the plaintiffs were
convicted, and their convictions were easily upheld on appeal.
 

The
bottom line is that the plaintiffs' constitutional rights were not violated.
Yet that is their burden of proof. With many millions in taxpayer dollars at
stake, the city has a duty to defend itself in this case.

There
are opinions offered by others in The Times "Room for Debate"
discussion on its website. The link to obtain them is:

http://www.nytimes.com/roomfordebate/2012/11/19/justice-and-the-central-park-jogger-case/a-question-of-what-investigators-not-defendants-did

After
your reading the material, I would very much like to have your opinion on the
civil litigation. Do you believe the defendants should apply to the state
legislature for reimbursement of their damages (years spent in prison), as the
law provides, or do you think the city should waive whatever immunity it has
and pay damages to the defendants as proposed by their supporters, irrespective
of whether they can prove their cases?

The Honorable Edward Irving Koch served as a member of Congress
from New York State from 1969 through 1977, and New York City as its 105thMayor
from 1978 to 1989.

eHeziED KOCH COMMENTARY: The City Has a Right to Defend Itself By ED KOCH

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