Ava DuVernay & Netflix Want ‘When They See Us’ Suit From Ex-NYC Assistant D.A. Dismissed

EXCLUSIVE: Having already seen one lawsuit against the Emmy winning and Peabody Awards nominated When They See Us miniseries tossed, Netflix and Ava DuVernay are aiming today to get the defamation action by ex-Central Park Five prosecutor Linda Fairstein dismissed too.

“Plaintiff’s claims fail under the First Amendment as a matter of law,” says the three-pronged filings Monday by the Oscar nominated director, the streamer and co-defendant WTSU producer/writer Attica Locke. “Material falsity is essential to any defamation claim and is an element Plaintiff must establish,” says the motion to dismiss put in the federal court docket today in response to ex-Assistant District Attorney for New York County Fairstein’s wide spread damages and apology seeking initial complaint of March 18.

“Here, the Series is an artistic dramatization of controversial and contested historical events. Plaintiff’s complaint that the Series’ portrayal of her is “false” because it ‘depict[s] her at places where she never was’ and “puts words in her mouth” that ‘she never uttered’ is simply a non sequitur,” the motion adds (READ ALL THE DEFENDANTS’ FILINGS HERE, HERE & HERE)

The context is obvious: not every scene and piece of dialogue is a transcription of actual conversations but involves “the selective editing of real history not only for time but also for clarity, flow, and emotional impact,’” the 36-page document from attorneys at offices of Dentons US LLP states. “Another District Judge recently recognized just that in dismissing defamation claims based on the Series by an interrogation training company.”

Back on March 23, U.S. District Court Judge Manish Shah axed the effort started in October 2019 by John E. Reid & Associates over their issue with a reference to the company’s trademark controversial interrogation technique in the four-part When They See Us.

Here, Netflix, DuVernay and Locke either want the matter ended over jurisdiction because none of them have anything to do with the state of Florida, where Fairstein filed and recently moved. Correspondingly, in a separate document, the parties want this latest case against the hard hitting WTSU halted under California’s anti-SLAPP statutes and the freedom of expression it protests, as does the Constitution.

In her legal swipe earlier this year, Fairstein used a similar tone to her Wall Street Journal op-ed of June 2019, in claiming that WTSU showed her as a “racist, unethical villain who is determined to jail innocent children of color at any cost.” The one time then head of the Manhatten D.A.’s sex crimes unit goes on to insist that her Felicity Huffman-portrayed depiction in the miniseries “are complete fabrications and readily contradicted by evidence in the public record.”

At the time, Netflix said that “Linda Fairstein’s frivolous lawsuit is without merit. Today they made that POV a bit more official

“Equally clear is that the Series has a distinct point of view: that of the Five,” the defendants said in their mutual filings in the middle district of the Sunshine State. “Having told her side of the story, the First Amendment does not allow Plaintiff to silence their story and belief, founded on the facts leading to their exoneration, that the prosecution she helped lead was a colossal injustice.”

When They See Us dramatically depicts the already very dramatic and careless rush to justice against five young men falsely accused in the near-fatal 1989 rape of a woman who was jogging in Central Park. With the five hammered by the media, Donald Trump and law enforcement, Fairstein was a very public presence in the various cases and trials that followed. At the time, the now crime novelist and former ICM Partners client took a lot of credit for the convictions of Rayomond Santana, Antron McCray, Kevin Richardson, Yusef Salaam, and Korey Wise.

Wrongful convictions it became clear decades later.

In 2001, serial rapist and murderer Matias Reyes confessed to the attack while behind bars for another crime; his statements were confirmed by DNA evidence and knowledge of the scene. While the Exonerated Five eventually saw their names cleared in 2014 after a long long effort, Reyes was never prosecuted for the rape because the Empire State’s then statute of limitations on such sex crimes had expired.

 In October of last year,WTSU’s Jharrel Jerome won the Primetime Emmy for Outstanding Lead Actor in a Limited Series or Movie for his performance as Wise.

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