Interview with Linda Fairstein: Part 1

I recently had a chance to sit down with bestselling crime novelist,

former Sex Crimes Unit chief prosecutor of the New York County District Attorney and staunch advocate for rape kit reform, Linda Fairstein. Despite her non-stop schedule around the March 1st paperback release of HELL GATE, Linda was able to provide me with a thoroughly fascinating account of what it was like to lead the New York County District Attorney Sex Crimes prosecution unit for 26 years, her well-informed thoughts on rape kit reform and insight into how she sits down to write her best-selling novels. This is the first of our three-part interview. Be sure to check back over the coming days for the rest.

Sarah Tofte: Thank you for taking the time to talk today me today.First of all, I would love to learn why you became a prosecutor.

Linda Fairstein: It was a very different time, as many women know from their mothers, aunts and grandmothers. There were many professions that were closed to women in those days. I went to Vassar College and I was the last all-women’s class. I went there because it had a fabulous liberal arts education and the English Department was very strong. What I wanted to do all my young life was write–that was my ambition. My father, whom I adored, used to roll his eyes and say, “you know you have nothing to write about, you need a career.” I neared the end of college and realized I did need a job, if not a career, and my other interest was public service. I was very much a child of the John Kennedy era—“ask not what your country can for you…” and so many people, my 60s generation, were interested in public service. So I decided to apply to law school.

I went to the University of Virginia. 350 people in the starting class and I think there were eleven women. Early on my attention was captured by criminal law, criminal procedure–the very human elements. I knew the corporations weren’t for me. Trusts and estates weren’t for me. The idea of working in the courtroom and doing justice was what I wanted to do. The New York County—people call it Manhattan–but the New York County District Attorney’s Office was considered the premiere training ground for young lawyers at the time, and there were seven women out of 200 lawyers. There were very, very few women doing litigation of any kind in courtrooms and the District Attorney [DA] at the time, Frank Hogan, was an older gentleman who didn’t think it was appropriate for women to be trying felony cases in the courtroom.

I did not go, as many young lawyers do today, to work on special victims issues. There was not a special victims unit in any police or prosecutor’s office in America. Our laws were so archaic as they dealt with rape and sexual assault. One needed corroboration; one needed independent evidence in a case beyond the victim’s word before she could even get in the courtroom. So the year before I joined the office, there were more than 1,000 men arrested for rape in New York City in the five counties, and only 18 were convicted.

So I didn’t go there to do that work, I went to learn the skills of a trial lawyer. The doors were just beginning to open for women in the courtroom and Mr. Hogan died 18 months after I got there, when Bob Morgenthau became DA. It was the serendipity for me of the laws beginning to change. The corroboration requirement was eliminated by the State Legislature. So rape victims were beginning to come in and that office set up a special victims unit. Actually Los Angeles Police Department was the first PD to have a special victims unit in 1972–then called the Sex Crimes Unit–and New York followed almost immediately. So our office set up the first prosecutorial unit to correspond, recognizing that we really had to have very special efforts to get women into the system and to trust a criminal justice system that had never been welcoming before.

I think the special victims unit was set up with two lawyers in ’74 when I was still handling misdemeanor cases. When Mr. Morgenthau came in, he asked me to take over the unit, which was about 18 months old then. He felt it was important that there be a woman at the head of the unit to try and make it more victim-friendly. I was 29 years old and I don’t think that would be replicated in a big city prosecutor’s office today. I say it with a smile on my face, but he really thought that was important. He asked me to take it over and we both assumed that I would do it for maybe a year or two, or probably burn out, and want to move on to something else.

It’s the work that kept me there 26 more years. It was wonderfully challenging and rewarding every day because finally, people—women, children and occasionally male victims—who had been denied justice for so long were beginning to get it. Not by any means on wide, wide margins, though. The first fifteen years of my career, from 1972 to ’86, were before there was any forensic use of my three favorite letters of the alphabet, DNA. The merit of using DNA is so obvious from great television shows like [Law & Order:] SVU, movies and crime novels. But the fact is also that for many victims, DNA means not having to rely solely on their ability to identify somebody after the stress of what they’d experienced.

The first 15 years were fascinating. The laws were beginning to change, and we helped. We lobbied for the elimination of the rest of the corroboration requirements. We lobbied for passage of the rape shield law, which for the first time put in place protections to prevent victims’ entire sexual history from being opened at the trial. We tried to make the system respond to cases of domestic violence, which had always been considered a private act. I mean the crimes are on the books–they’re the same if you club somebody over the head who’s a stranger or your wife. But private matters, the defendant was usually let out of jail. People were told to go home, cool down, think about it with a level head. There was no recognition of the lethality, of the likelihood that this would escalate and to possibly be murder. So it was a very exciting time because it was an entirely new field. Not new crimes–they had been obviously happening for as long as people have been on earth–but finally new ways to deal with them. And that’s what kept me there.

In 1986, I was asked for the first time to consider using DNA in a case. I think I was one of the first handful of prosecutors asked to do that. It was not yet accepted as a valid technique in any court in America, but I learned the science. I studied with one of the great forensic biologists named Jack Ballantine, who’s a leader in his field in Florida now. That just opened an entirely new perspective. I mean I get chills just thinking about it now, what that ability gave us in terms of trying to fight this battle harder and being able to say to a survivor of a rape, “you know, it doesn’t matter that it was dark and your head was covered by a pillow. Science is going to tell us who did this.”

That became the next 15 years as we fought to get the courts to admit into evidence. 1989 was the first year in a case that DNA was admitted. We had used it before then to exonerate suspects, which we continue to do. The whole technique of DNA, of the science of it, the whole techniques used in the science continue to change, to improve. The work always, for me, had an enormously deep emotional content, and I liked that. I liked being able to give to victims and survivors the chance to get in the courtroom and have justice done. So that kept me there thirty years.

ST: So, a lot of things I’d love to follow up with. Let me think where I want to go first. I’ll start with some of the specifics. Talk a little bit about that era before DNA the criminal justice system really knew about it, much less really used it. Typically, what kind of evidence did you have to rely on if you were trying to make a case? What did you have when you didn’t have DNA? What kinds of barriers were there to making a good case when you only had a certain kind of evidence?

LF: As you know, Sarah, in the system then and now, there’s always sort of investigative distinction between stranger cases and acquaintance cases. Some acquaintances are dates, but some are teachers, doctors, lawyers, people… It just means that for law enforcement the issue is not knowing who the assailant is, it’s proving if there was consent or not. The stranger rape cases are the ones that have been most affected by DNA. So in the stranger cases, they were investigated like any other crime, and sometimes you were able to get DNA, like in cases that the defendant ejaculated. Then, all we had was blood group typing of the seminal fluid, and it was nowhere near the certainty if it was a common blood type. You might have been able to exclude somebody with this DNA, but it could never pinpoint someone with certainty–that happened if you got lucky.

Generally then, the cases really depended on the victim’s ability to describe and identify her attacker in a lineup, as in any other criminal case. If there were fingerprints, for example, in a burglary case in an indoor crime scene, like a victim’s apartment, you might be more likely to find fingerprints. You might find the window… there are certain surfaces—if you watch SVU, you know–that are conducive to leaving fingerprints. Sometimes if the defendant will go into the kitchen and pour himself a glass of water before he left, or take something from the refrigerator, and we’d get very lucky.

But outdoor crime scenes are where many rapes happen. Rooftops, parks, playgrounds…you’re not going to have the surfaces conducive to leaving fingerprints. So, the stranger rapes were worked like homicide investigations. Sometimes there was evidence, sometimes there wasn’t. Sometimes your victim had, sadly, a good long opportunity to see the assailant. Kept in her apartment, in the stairwell, lighted, and she had chances and because it is such an intimate crime, I try to turn that around and say this isn’t a mugging that took three minutes. This took twenty-seven minutes that she was with him. He was close to her and touching her. She can describe the skin texture, maybe tattoos on part of his body not visible. So we worked everything we could, but it made the victim very fallible in all this. If she made any “mistakes,” or if she was blindfolded, or turned around and didn’t have the opportunity… there was sadly a lot of self-blame by victims, victims who would wrongly think the pressure was on them to figure out who the assailant was. So they were very, very tough cases.

It was also in the seventies and early eighties when I started doing this, a point in time when our culture didn’t speak openly about these issues. I mean you would have known more if we’d have had a prime time television show doing what Mariska [Hargitay] did in the seventies. It was just a taboo topic. It was rare that the mainstream media wrote about sexual assault. People didn’t think it happened to our sisters, and daughters, and mothers. So a lot of what we were doing as rookie prosecutors was trying to educate the public to change attitudes and, at the same time, understand how vulnerable everybody was to the potential of this kind of victimization.

Linda Fairstein’s new novel, SILENT MERCY, is being released on March 8th by Dutton. Check back Monday for the second installment of our interview. In addition to being an author, advocate, and former Chief Prosecutor of the New York County Special Victims Unit, Fairstein also serves as Vice Chair of the Joyful Heart Foundation’s Board of Directors.

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