‘When They See Us’ Is Amazing. So Why Does It Feel Like Trial by Netflix?

Netflix's 'When They See Us' is a heartbreaking show about one of America’s most infamous miscarriages of justice. Its real-life characters are now being prosecuted in the court of public opinion

This image released by Netflix shows Marquis Rodriguez as a young Raymond Santana in a scene from "When They See Us."
Atsushi Nishijima,AP

I will stop obsessing over “Chernobyl” soon, I promise. I will stop thinking about the “Bridge of Death,” radiation sickness and dead dogs. I will stop hearing Geiger counters in my head. And I will stop patting my children on the shoulder and telling them in my worst Russian accent: “Now you look like minister of coal.”

But I won’t be able to stop comparing the HBO/Sky hit to other new shows based on real-life events – like Netflix’s “When They See Us,” which has proved a huge draw since debuting at the end of May. It’s that rare series where the resultant response is almost as interesting as the show itself.

Ava DuVernay’s four-part show dramatizes the story of the Central Park Five – the five teenagers (four black, one Latino) who were jailed for their alleged involvement, among other things, in the brutal rape and assault of a 28-year-old white female jogger in the iconic New York park in April 1989.

It’s a chilling, heartbreaking show about one of America’s most infamous miscarriages of justice. Yet only 30 years on, it’s clear from reaction to the show that many viewers had never heard of the Central Park Five before tuning in (or perhaps some thought it was that cool band they saw supporting Alabama 3 a few years ago).

Kudos to Netflix and DuVernay for creating such a powerful, moving and strangely poetic show – one it is impossible to watch without feeling anger, disgust, frustration and, ultimately, sheer disbelief.

So why did I also come away with nagging doubts about it? Doubts that deflected from where my focus should have been – the hellish experiences of Kevin Richardson, Antron McCray, Yusef Salaam, Raymond Santana and Korey Wise, all 16 or under when they were thrown into jail for between six and 14 years based on coerced confessions in a New York police station.

Instead of reflecting on the Central Park Five, I found myself thinking about these five words instead: Donald Trump and Linda Fairstein.

Trump, of course, infamously took out four newspaper ads and went on television in 1989 to call for the death penalty against the Central Park Five. And, naturally, even when the men’s convictions were vacated in 2002, Trump simply doubled down on his pernicious views.

But making him part of the drama seems like a point-scoring distraction. “They need to keep that bigot off TV is what they need to do,” one of the accused teenager’s mothers says upon seeing Trump advocating for the death penalty, to which a friend responds, in an unsubtle wink to viewers: “Don’t worry ’bout it, his 15 minutes almost up.”

A scene from Netflix's "When They See Us."
Atsushi Nishijima / Netflix

Scaremongering media

Yet Trump was nothing but a sideshow at the time. A far bigger offender was the New York media, which whipped up the public with its sensationalist and scaremongering tales of rampaging black teenagers “wilding” through Central Park – an antagonistic stance that continued even after the Central Park Five were exonerated.

Ken Burns co-directed a typically sensitive documentary about the subject, “The Central Park Five,” in 2012. But his film didn’t feel the need to create “boo hiss” villains like Fairstein, the Manhattan sex crimes prosecutor who was the driving force behind the conviction. For him, the legal system and the media were the villains.

I would love to know how Felicity Huffman – herself probably spending far too much time in police stations these days – was told to play Fairstein, because the one note she seems to be riffing off is “No, even more evil!”

If we are to believe “When They See Us,” Fairstein is not a woman you would entrust your Dalmatian puppies to. She is portrayed as the kind of person who would tell everyone their mom cooks socks in hell (or words to that effect).

There’s a key moment toward the end of the show [SPOILER] when she is presented with new facts about the CP5 case, after a jailed serial rapist has belatedly confessed. The former prosecutor – by now a successful crime novelist who has penned a string of best-sellers about, big stretch, a female assistant DA in Manhattan’s sex crimes unit – strongly rejects any notion that the CP5 was not also involved, thus sealing her fate with the audience.

It’s interesting to note that Fairstein was approached to act as an adviser on “When They See Us,” but rejected that opportunity when she learned that the exonerated five were already on board. We’ll never know how much her unwillingness to collaborate helped spawn the lines Huffman gets to spit out like “We helped make sure they got what they deserved! And I’ll be damned if I’m going to lose a wink of sleep over it!” – but it definitely couldn’t have helped her cause. (Fairstein has slammed DuVernay, taking to the Op-Ed page of the Wall Street Journal to call the show an “outright fabrication.”)

When writers dramatize the lives of real people, they have a duty of care to be truthful to the essence of a character, as well as to the story. For example, my one gripe with “Chernobyl” is creator Craig Mazin’s decision to portray the protagonist, Valery Legosov (Jared Harris), as a sad-sack loner whose only companion was a cat. In fact, he was married with a daughter, and the footage we see of him in the show (and also online) suggests a far more confident, assertive figure.

But I can understand why Mazin made that artistic choice, and it doesn’t make Legosov any less of a heroic figure. The depiction of Fairstein may be based in fact (a Village Voice profile from 2002 certainly portrays her as a cold-blooded legal assassin), but she is presented in such a two-dimensional way that no room is left for nuance or doubt. She is clearly a complicated character: She is widely credited with teaching police officers to treat sex-crime victims with more respect, yet she also reportedly helped Harvey Weinstein avoid criminal probes back in 2015 over his alleged sexual harassment.

Vera Farmiga as Elizabeth Lederer in a scene from Netflix's "When They See Us."
Atsushi Nishijima / Netflix

It is no surprise to learn that, since “When They See Us” aired, Fairstein has been the subject of a witch hunt, losing her book publishing deal, Hollywood agent and prestigious law positions, because that is how she is depicted here: as a heartless witch. (Fairstein’s prosecution assistant, Elizabeth Lederer, is played more sympathetically by Vera Farmiga, but Lederer too has just been forced to quit her part-time teaching position following student pressure at Columbia Law School.)

If writers have a duty of care when dramatizing real-life events, the same should also be true of us as viewers. When you finish watching a show like “When They See Us,” you should not rush straight to judgment or Twitter. First, seek out the facts (including Burns’ documentary) and then make an informed decision about the people involved.

“When They See Us” is a genuinely great show that deserves to be seen by the widest possible audience. Netflix deserves huge credit for making it (episode four, detailing the nightmarish experience behind bars of Korey Wise, brilliantly portrayed by Jharrel Jerome, is perhaps the best 90 minutes of television I have seen all year aside from “Chernobyl”).

But anything that gets people instantly reaching for their pitchforks should make us nervous – because the last thing we need right now is trial by Netflix. Besides, there seems to be something horribly ironic about passing judgment on people who were guilty of coercing videotaped confessions, based solely on a show in which actors are being fed lines.