2nd Circuit Urges 'Complete Review' of Notorious Sex Abuse Case but Rejects Habeas Petition

Mark Hamblett

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.

False Child Abuse Allegations
Police/Prosecutor Misconduct

Truth in Justice