
2nd Circuit Urges 'Complete Review' of Notorious Sex
Abuse Case but Rejects Habeas Petition
Mark Hamblett
08-17-2010
Prosecutors' failure to disclose that hypnosis was used to help a
witness recover memories of alleged sex abuse as a child does not
invalidate a defendant's guilty plea, a federal appeals court ruled
yesterday.
The 2nd U.S. Circuit Court of Appeals yesterday refused to grant the
habeas petition sought by Jesse Friedman, who was seeking to undo his
1988 guilty plea in a molestation case that rocked Nassau County, N.Y.,
and became the subject of the documentary "Capturing the Friedmans."
The 2nd Circuit in Friedman v. Rehal, 08-0297-pr, said that there was a
good chance that Friedman was coerced into pleading guilty, but that
exculpatory evidence, which a prosecutor must turn over under Brady v.
Maryland, 373 U.S. 83 (1963) goes to the fairness of a trial, not to
whether a guilty plea was voluntary.
But while they denied relief, Eastern District Judge Edward Korman,
sitting by designation, and 2nd Circuit Judge Rosemary Pooler,
denounced the investigation of the case, criticizing the behavior of
detectives for pressuring students in Great Neck to implicate Jesse
Friedman and his father, Arnold Friedman, and criticizing the
performance of then Nassau County Court Judge Abbey Boklan.
Korman wrote that Jesse Friedman's guilty plea did not appear to be
voluntary and he and Judge Pooler called for Nassau County District
Attorney Kathleen M. Rice, who is now running for attorney general, to
undertake a "complete review" of the case.
Carole Trottere, a spokesperson for Rice, said yesterday, "We are
reviewing the decision and will be giving the court's opinion serious
thought and consideration."
The Friedman case occurred during the term of Rice's predecessor, Denis
Dillon.
Judge Reena Raggi agreed with Korman and Pooler that the Brady claim
was untimely, but faulted them for engaging in a lengthy discussion of
the facts asserted by Friedman and assuming, without a hearing,
misconduct on behalf of police, prosecutors and the judge.
Raggi nonetheless acknowledged that the facts of the case were
"disturbing and may well warrant further inquiry by a responsible
prosecutor's office."
Arnold Friedman had his then 15-year-old son, Jesse, join him in
teaching computer classes to children in their home in Great Neck
beginning in 1984.
But on Nov. 25, 1987, they were arrested on a felony complaint alleging
child sexual abuse and on March 25, 1988, Arnold Friedman pleaded
guilty to 42 counts of child sexual abuse. He died in prison.
By November 1988, Jesse Friedman had been charged with 243 counts of
sexual abuse. There was no physical evidence, only the statements of
more than a dozen boys between the ages of 8 and 12 to detectives.
Jesse Friedman pleaded guilty on Dec. 20, 1988 to 17 counts of first
degree sodomy, one count each of use of a child in a sexual performance
and first degree attempted sexual abuse, four counts of first degree
sexual abuse and two counts of endangering the welfare of a minor.
Boklan sentenced him to six to 18 years in prison.
Friedman was denied parole on four occasions, supposedly because he
refused to reiterate his guilt in a sex-offense therapy program. He was
finally paroled in 2001.
In 2003, filmmaker Andrew Jarecki completed "Capturing the Friedmans,"
after three years of investigation that included interviews with many
participants in the cast. On Jan. 10, 2003, Friedman viewed the
completed documentary and saw an alleged victim acknowledge having no
memory of abuse until after undergoing hypnotic therapy.
Friedman sought to vacate his conviction based on newly discovered
evidence, but his motion was denied by county court. On March 10, 2006,
the Appellate Division, Second Department denied him leave to appeal.
Friedman then turned to the federal courts but missed the deadline for
filing his habeas petition by three months. Eastern District Judge
Joanna Seybert denied his petition as time-barred (NYLJ, Jan. 8, 2008).
At the circuit, Friedman argued that, in addition to the Brady
violation, his tardiness should be excused because he was actually
innocent.
Korman said that, in United States v. Ruiz, 536 U.S. 622 (2002), the
U.S. Supreme Court reaffirmed that a defendant is "entitled to
information necessary to ensure that his plea is voluntary" and that
any waiver of his rights is voluntary and knowing.
"Nevertheless, because 'impeachment information is special in relation
to the fairness of the trial, not in respect to whether a plea is
voluntary'…" the Supreme Court "held that the failure to disclose such
information prior to a guilty plea does not violate the Due Process
Clause," Korman said.
"Petitioner characterizes the use of hypnosis as 'exculpatory'
evidence, a type of material Ruiz does not explicitly address," he
said. "We disagree."
'Vast Moral Panic'
Korman then discussed the "context of the late-1980's and early 1990's"
when "allegations of outrageously bizarre and often ritualistic child
abuse spread like wildfire across the country" and a "[v]ast moral
panic fueled a series of highly-questionable child sex abuse
prosecutions."
And he referred to "memory recovery procedures" advocated by a "small
group of clinical psychologists" as the basis for many of those
prosecutions.
"Hypnosis, for example, has been shown to produce bizarre and
impossible memories, including memories of ritualistic satanic abuse,
memories from early infancy, memories from past lives, and memories
from the future," he said.
Korman said flawed interviewing techniques and pressure tactics were
used by detectives to gather evidence against Friedman and "the police,
prosecutors and the judge did everything they could to coerce a guilty
plea and avoid a trial."
For example, he said Boklan threatened defense lawyer Peter Panaro that
she would impose the highest sentence for every charge if the case went
to trial.
"Nor could he have reasonably expected to receive a fair trial from
Boklan, the former head of the Nassau County District Attorney's Sex
Crime Unit, who admitted she never had any doubt of the defendant's
guilt even before she heard any of the evidence or the means by which
it was obtained," Korman said. "Even if innocent, petitioner may well
have plead guilty."
Attorney Ron Kuby, who along with Jennifer Bonjean and David Pressman
represented Friedman, lamented the result but said the opinion was
nonetheless remarkable.
"I've never seen the U.S. Court of Appeals for the Second Circuit
criticize a district attorney's office and police practices with such
vehemence -- nor have I ever seen them so vocally advocate for a
reexamination of a case," he said. "I've lost a lot of cases in the
Second Circuit, but I've never lost one this well."
Nassau County Assistant District Attorneys Judith R. Sternberg and
Peter A. Weinstein represented the state.
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