Demonic (37 page)

Melody Jackson, the sister of a friend of Kharey Wise, testified that she talked to Wise by phone when he was in jail after the arrests and he told her that he didn’t rape the jogger, he “only held her legs down while Kevin [Richardson] f—ked her.”
¹⁵
(In the district attorney’s argument for vacating the convictions, this admission was watered down to: “Wise replied that he had not had sex with her, but had only held and fondled the victim’s leg.”)
¹⁶

The Central Park jogger’s assailants were not making deals when they gave detailed, corroborated, videotaped confessions. Their stories never unraveled, but rather were corroborated by other evidence. Both juries were well aware that the semen in the jogger’s cervix and on her sock did not match any of the defendants’ DNA.
¹⁷

Although it’s difficult to imagine these days, in 1989, DNA was not a big part of criminal investigations. Back then, DNA testing was being called a “novel,” “high-tech,” “sophisticated” test. The month the jogger was attacked, newspapers were excitedly reporting “a powerful and still unfolding laboratory discovery, a genetic ‘fingerprint’ created from the body’s deoxyribonucleic acid, or DNA,” as the
Chicago Tribune
put it. This “still unfolding” discovery was said to be “a breakthrough weapon
in the war against violent crime.”
¹⁸
In state and federal courts across the nation, DNA had been used in only about eighty court cases.
¹⁹

DNA identifications were first invented by Alec Jeffreys in 1984—five years before the Central Park rape. The first time DNA was ever used to help solve a crime was in Leichester, England, in 1986. The first time DNA evidence was ever given as evidence in a U.S. trial was in November 1987, in a rape case in Florida. DNA evidence was not even
permitted
in New York courts until November 1988
²⁰
—just six months before the Central Park jogger was attacked.

Needless to say, DNA evidence was immediately, virulently attacked by defense lawyers. One month
after
the Central Park wilding, a New York court refused to admit DNA, which the judge termed “novel scientific evidence”—based on the arguments of future Innocence Project attorney Peter Neufeld.
²¹

The
New York Times
—the same newspaper that would be howling about the lack of DNA evidence against the Central Park rape defendants thirteen years later—ran an article on the unreliability of DNA testing one month after that attack. The National Association of Criminal Defense Lawyers had set up a committee headed by Peter Neufeld along with his future Innocence Project colleague and Axis of Evil cohort, Barry C. Scheck, to reopen all convictions involving DNA testing done by a major genetics testing laboratory.
²²

In the next few years, obviously, DNA became the gold standard for criminal evidence (except to Scheck, who argued against the DNA in the 1995 O.J. case). But in April 1989, no sane detective would plan on winning a conviction based on forensic evidence: It wasn’t clear that the “novel scientific evidence” of a DNA test would even be admissible, and all other forensic evidence generally narrowed the suspect pool down to about 40 percent of the population.

Complaining about the lack of forensic evidence in a 1989 case would be like complaining that the cops didn’t use Google maps on their iPhones to locate the jogger.

As even defense attorneys told the
New York Law Journal
at the time, there were lots of reasons the defendants’ DNA might not be found at the crime scene: The police might have failed to retrieve all of the semen, the defendants might not have ejaculated (as several of the defendants
stated in their confessions), or the sample could have been contaminated.
²³

The evidence in the Central Park wilding trial was out of Perry Mason, not
CSI–New York
. Collecting physical evidence was not important to saving the jogger’s life; nor, in 1989, was it particularly relevant to making a criminal case.

DNA is like fingerprint evidence. Your DNA at the crime scene proves you were there, but the absence of your DNA doesn’t prove you weren’t. That’s why two juries, fully aware that the defendants’ DNA was not at the crime scene, convicted them anyway.

What the prosecution had was better than DNA: detailed, videotaped confessions from four of the five defendants and an unvideotaped confession from the fifth. Even the O.J. jury might have convicted had they seen the defendant in a thirty-minute video, giving a detailed description of how he killed his wife and Ron Goldman.

Perhaps liberals could tell us in advance what evidence of guilt they intend to consider probative, instead of waiting to see what the evidence is and then saying they were really looking for something else. Whatever the evidence is, they react like Diogenes in the
New Yorker
cartoon, staring at an honest man and saying, “Actually I was looking for a
taller
honest man.”

The judge in the real trials, Justice Thomas B. Galligan, held a six-week hearing on the admissibility of evidence, primarily the confessions, taking testimony from twenty-nine witnesses, including four defendants and their parents and relatives, who were contesting the confessions. Galligan found all the confessions were given voluntarily, with Miranda warnings and following proper procedure.

Despite attempts to discount the videotaped confessions with claims that they were preceded by hours of brutal police grilling, every defendant but one was questioned only in the presence of his parents or other adult relatives. The exception was Yusef Salaam, who lied to the police and told them he was sixteen, even showing them his adult transit pass. His questioning ended abruptly as soon as his mother showed up and told the police he was only fifteen. Yusef was the only defendant who did not make his confession on videotape.

Although each of the defendants had denied penetrating the jogger,
they all admitted to fondling or restraining her as others raped her. If the defendants assisted in the jogger’s rape, they were guilty of rape even if they didn’t deposit their semen anywhere in Central Park that night.

In Antron McCray’s thirty-four-minute videotaped statement, for example, he said, smirkingly, “Everybody started hitting her and stuff. She was on the ground, everybody stompin’ and everything.… I grabbed one arm, some other kid grabbed one arm and we grabbed her legs and stuff. Then we all took turns getting on her, getting on top of her.… I just like, my penis wasn’t in her. I didn’t do nothing to her … I was just doing it so everybody … Everybody would just like, would know I did it.”
²⁴

If the jury believed this, they had to find him guilty of rape as an accomplice.

In the opposite of a rush to judgment, the two juries deliberated for ten days and eleven days, respectively. At the first trial, all three defendants were acquitted of the most serious charge, attempted murder, but convicted of assault and rape on the “acting in concert” theory. The first three defendants were also convicted of riot and of assaults on other park-goers that night.

Defense counsel attacked the confessions as coerced, and evidently the jurors took these arguments seriously: The second jury concluded that Kharey Wise’s videotaped confession resulted from “subtle forms of coercion” and acquitted him of rape and attempted murder, convicting him only of assault and sexual abuse.

Kevin Richardson was convicted of rape and attempted murder—the only defendant convicted of the latter charge. The evidence against Richardson included his leading prosecutors to the exact location of the crime; his vivid description of the attack given on videotape in the presence of his father; and a deep scratch wound on his cheek that he told police was from the jogger. Also, the crotch of the underwear he was wearing the night of the attack was suspiciously stained with semen, grass stains, dirt, and debris. Someone else’s semen on the jogger’s sock couldn’t explain that away. Richardson’s own half-sister, who signed his confession as a witness, took the stand to attack his statement as involuntary, but ended up admitting under oath that those were her brother’s own words.
²⁵

For being found guilty of a savage attack on a female jogger that
only by the grace of God didn’t kill her, the defendants were each sentenced to five to ten years in prison, except Richardson, who got five to fifteen years. Former congressman Tom DeLay was sentenced to three years in prison for putting campaign money in the wrong account.

All but one, Raymond Santana, appealed their convictions. All convictions were upheld.

But thirteen years later, the media told astonishing lies about both the original trials and the alleged “new evidence.” New York
Newsday
, for example, breathlessly reported that it had gotten its hands on “a confidential police report” concluding that “all forensic evidence used at trial … has now been determined to be useless.” Congratulations,
Newsday
! You could have run a Nexis search for that “confidential” information. It was known to be perfectly useless at the trials, too.

According to AP reports at the time, for example, the most powerful “forensic” evidence came from retired detective Nicholas Petraco, who testified that hairs found on Richardson’s clothes “could have” or “might have” come from the jogger. On cross-examination, he admitted that “he could not determine that a hair definitely came from a specific individual.” He also said “that hair could end up on someone’s clothing by casual contact or from being airborne.”
²⁶

Forensic evidence didn’t convict the defendants. Their confessions did. Reyes’s jailhouse confession changed nothing about those cases: He had merely revealed himself as one of the rapists who “got away.”

But when a case is tried in the media, rather than a courtroom, new rules of evidence apply. In a courtroom, juries are able to see videotaped confessions, note inconsistencies or corroborating evidence, evaluate the credibility of witnesses, and consider alternative theories of the crime. They get to hear both sides of the argument.

Under the media’s Show Trial rules, only one side is heard, much like political debates on MSNBC. Any evidence tending to implicate the defendant is suppressed or denied, while any evidence tending to exonerate the defendant is treated as ironclad.

Thus, Innocence Project–style defense lawyers dismiss eyewitness testimony as notoriously unreliable—unless it’s an eyewitness providing an alibi. If a defendant’s DNA is found at the crime scene, it is mocked as merely circumstantial evidence and probably contaminated.
But if the defendant’s DNA is
not
found at the crime scene, it’s deemed bulletproof evidence of innocence.

Voluntary confessions that carry a penalty are said to prove nothing—they were coerced, given under duress, extracted in exchange for leniency. But jailhouse “confessions” are apparently never questionable—even if the primary beneficiary is a gang member in the same cellblock and the confession leads to a desirable prison transfer.

Confessions outside of court are not subject to cross-examination or evaluated by a jury. But if they exonerate the guilty, the media believe those confessions with all their hearts!

We know Reyes raped the jogger based on his DNA at the scene. The only question was whether he acted alone, as he claimed, or there were many attackers, as the five defendants said in their confessions and two juries believed.

But the only question for Robert Morgenthau, the Manhattan district attorney, was how to get a good write-up in the
New York Times
. So while newspapers repeated nonsense fed to them by the Innocence Project, Morgenthau’s office wrote a brief for the defense. His office began with the assumption that Reyes was telling the truth about acting alone and then scoured the record for evidence to support that theory. Unfortunately, there was no evidence to support Reyes’s single-rapist claim. So all the DA’s office was able to supply was sophistry.

Curiously, Reyes remembered raping the jogger with Technicolor clarity. But he couldn’t remember another brutal rape he committed a mere two days before the attack on the jogger.

Regarding the earlier attack, he said he vaguely recalled accosting a woman in Central Park, but he wasn’t sure if he had actually raped her. The DA investigated and determined that on April 17, 1989—two days before the attack on the jogger—Reyes had “in fact attacked, beaten, raped, and robbed a twenty-six-year-old white woman who had been exercising in the park.… The victim was badly beaten about the head. She had a large hematoma on her forehead, abrasions to both knees, bite marks on her left upper arm and neck, scratches over her neck, face, knees and back, and multiple bruises. In addition her right eye was bruised and shows subconjunctival hemorrhages.”
²⁷

Reyes couldn’t remember that. But he remembered amazing details
about his alleged solo rape of the jogger, occurring just two days later. Reyes knew, for example, the exact point on the trail where the jogger was first assaulted, which side of the jogger’s head had been bashed, where the blood was on her shirt, and what she was wearing. You know, the sort of details that only someone with access to a newspaper would know.

If Reyes had been facing a criminal penalty for being the sole rapist, liberals would have been denouncing his confession as obvious hokum. But the DA’s report cited Reyes’s freakish accuracy about details of the jogger’s attack as proof of his credibility, rather than as what it was: evidence that he had been coached.

Indeed, the DA’s report even made excuses for Reyes’s failure to remember raping the first woman, claiming that it “may be explained by the fact that, according to the victim, he apparently did not ejaculate.”
²⁸
Not ejaculating explains why the five defendants did not leave semen on the jogger—a possibility ignored by the Show Trial tribunal. There is no scientific study suggesting that a failure to ejaculate affects memory of a rape, but this was the scientific theory invented on the spot by Morgenthau’s office.