With much fanfare and support from innocence advocates, Jesse Friedman expected that a Nassau County District Attorney’s report would rubber stamp a 2010 Second Circuit Court of Appeals opinion that called on the DA’s office to reinvestigate his case based on what it said was a “reasonable likelihood that Jesse Friedman was wrongfully convicted.” But after an exhaustive reinvestigation, the DA and an independent panel of experts found in a 155-page report published Monday, that Friedman’s conviction and adjudication as a child sex offender should stand.
In November of 1987, Jesse Friedman and his father, Arnold Friedman, were charged in connection with the criminal sexual molestation of over one hundred young boys that were attending computer classes at their home in the affluent New York community of Great Neck. Jesse Friedman pleaded guilty on December 20, 1988. Then in 2003, Capturing the Friedmans premiered at the Sundance Film Festival and presented interviews with victims, police officers, and prosecutors involved with the case that suggested the Friedmans were innocent and the victims recanted.
Jesse Friedman seized on the statements depicted in this film, and together with his post-conviction attorney, Ronald Kuby, attempted to overturn his conviction. After his state court efforts were rebuffed, Friedman filed a habeas petition in federal district court asserting that his guilty plea was the product of state coercion and that the manipulative circumstances in which the victims gave their statements—including providing statements after undergoing hypnosis—were withheld from him in violation of Brady v. Maryland’s pretrial disclosure requirements. The federal district court rejected these claims, but issued a rare Certificate of Appealability. The appeal was analyzed by the Second Circuit Court of Appeals under the assumption that the facts as characterized by Friedman were true. Even under this highly favorable analytical framework, Friedman lost the appeal; however, the court stated, “Only a reinvestigation of the underlying case or the development of a complete record in a collateral proceeding can provide the basis for determining whether [Friedman’s] conviction should be set aside.” On Monday, June 24, 2013, DA’s reinvestigation report found that the conviction was supported by the evidence and that Friedman should remain a convicted sex offender.
The DA’s Review Team analyzed the statements described in Capturing the Friedmans and independently interviewed the witnesses. This reinvestigation found that the film took many statements out of context and that the victims in fact did not recant. The claim that one victim’s first account to police was achieved through hypnosis was also unfounded. According to the DA’s report, “[B]y any impartial analysis, the re-investigation process prompted by Jesse Friedman, his advocates, and the Second Circuit, has only increased confidence in the integrity of Jesse Friedman’s guilty plea and adjudication as a sex offender.”
Notably, the Friedman reinvestigation was aided by a panel of independent experts that Friedman’s own team itself once heralded as impartial. One prominent member of the expert panel was Barry Scheck, a founder of the Innocence Project at Cardozo Law School and partner at the civil rights law firm of Neufeld Scheck Bruston, LLP. Given that Mr. Scheck’s firm routinely sues police officers and has obtained Millions of dollars in such verdicts, the pro law enforcement community could be expected to reasonably call foul. But this expert panel lauded the DA’s Review Team for how they “…approached their work with no preconceived notions about Jesse Friedman’s guilt, and no agenda to preserve his conviction…the Review Team was prepared to recommend without reservation that Friedman’s conviction be overturned. But that was not how the facts played out…”. Ironically, it turned out that it was Friedman’s side that manipulated the witnesses and evidence to paint a false picture of innocence.
There are of course times when wrongful convictions happen and society must do everything possible to eliminate them. But overly aggressive and totally biased post-conviction investigations by some criminal defense attorneys and innocence projects like the one done in the Jesse Friedman case does not advance this cause. The Friedman case should serve as a reminder to prosecutors, judges, and anyone else conducting a post-conviction review, that witness recantations and claims of innocence should be taken with a healthy dose of skepticism and mindfulness of the powerful liberty and financial motives behind those asserting a growingly clichéd cry of wrongful conviction.