Friedman Memoradum of Law

Jesse Friedman's Appeal Motion

Update January 2008:

Judge Seybert's Decision regarding my appeal was not in our favor. The judge denied our motion for discovery, and sided with the prosecution regarding timeliness. The final ruling from the judge came down to her saying my appeal papers were filed 13 days too late. While it was a terrible defeat by the hand of the Court, there are two things I need to make abundantly clear:

The first is that at no point in either of the two written decisions from Judge Seybert did she ever indicate that my appeal was without merit, groundless, unfounded, or factually unsupported. Her decisions focused strictly on a technical matter relating to the counting of days on a calendar. You can read her decisions and see how at no time does Judge Seybert dispute any of our factual claims of constitutional violations, or the improper methods of the police investigation.

The second is that with what we've been able to uncover it is apparent that the children were subjected to dangerous therapeutic methods. This is not simply a situation regarding one student having been hypnotized. It appears that nearly all complainants were subjected to therapeutic practices not limited to hypnosis, but also guided imagery, suggestive questioning, and treatment for suspected "disassociation disorder", all of which are now known to induce false memories. This was the evidence we were hoping to present to the judge, had we been granted the opportunity. Had Judge Seybert granted our motion for discovery, we believe extensive evidence would have been uncovered to support our initial indication that hypnosis therapy was used as a method to illicit testimony from witnesses. If those involved with my prosecution conducted a fair and untainted investigation, then what would have been the harm is in disclosing that information?

Again, this ruling on my appeal had no basis on the content of our arguments, only on "the date on which the factual predicate of the claim presented could have been uncovered through the exercise of due diligence." Federal Law says, "The limitations period begins on the date on which petitioner was on notice of the facts which would support a claim, not from the date on which the petitioner has in his possession evidence to support his claim." The prosecution argued that when I saw "Capturing the Friedmans" for the first time, and "learned" that at least one of the complainants said his recollection of abuse was the result of hypnosis, was when I should have filed my appeal papers. My lawyers counter-argument was that seeing an anonymous person cloaked in shadow about whom there is no identifying information is as much akin to "being on notice of a fact" as receiving an anonymous letter, with no return address, reading simply, "I was in the computer classes and it was only
after being in therapy did I remember that I was sexually abused." My appeal was filed once the film maker had actually shared with my attorney and I his source material for the film, and contact information for the people in shadows. But federal law says a defendant has 365 days from the time of discovering new evidence to file an appeal, and not 366.

October 3, 2007

Today in Central Islip was the first time all parties (meaning the DA, my defense council, and me) appeared in court together before an impartial judge in the twenty years since my arrest. I was present, with my wife, my attorneys Ron Kuby and David Pressman. Judith Sternberg, the ADA from Nassau County assigned to the case was there to argue in opposition to our petition.

The legal issues are somewhat complicated, but basically today’s hearing was to argue the matter of “timeliness”. In Judge Seybert’s July decision she wrote, “The Court cannot reach a decision based on the record before the Court as to the timeliness of Petitioner’s third claim – failure to disclose hypnosis of some of the child eyewitnesses. The Court thus orders the parties to appear”. And thus, that is what happened today.

I still can not manage to find my case before a judge who will make some impartial hearing as to the merits of my conviction. Thus far I have been dealing with four years worth of debate about “timeliness”.

I believe we made a perfectly viable, a legally solid argument countering the D.A.’s office motion to dismiss. There was a possibly for a bench ruling, but Judge Seybert announced she would issue a written decision. And thus, we wait.

Till then, our demands for discovery remains held-over again until the timeliness matter is resolved. I know it much seem outrageous to those unfamiliar with the methodology of our justice system, but if a defendant can prove his innocence, yet files the papers two days “late” the decision of “justice” pretty much assures that the motion will be denied and the defendant will remain (in some instances) on death row even.

See Newsday October 24, 2007

July 2007

We won! . . . sort of.

On July 21 I received news of Judge Joanna Seybert's Decision granting me a hearing in federal court.

To try and explain where things stand in English:

We raised three issues each relating to the withholding of information which should have been provided to me prior to trial regarding the nature of the evidence against me. The withholding of this information was a Constitutional violation and had I known of any of this information at the time I would have most certainly taken my case to trial rather than pleading guilty.

1) Perhaps 100 children were present during the computer classes (at the same time as the alleged abuse was going on) who told the police, "I was there and nothing happened." This was never disclosed to the defense.

2) As my lawyer wrote: There was a crucible of suggestion, intimidation, and falsification on the part of the police. The prosecution failed to disclose exculpatory evidence showing that the police utilized aggressive suggestive and coercive interrogation techniques they knew, or should have known, would yield false allegations.

3) The use of hypnosis during therapeutic sessions resulted in a situation of potential "implanted memory" or “repressed memory syndrome” and should have been disclosed to the defense at the time.

On the first two issues, Judge Seybert ruled the statute of limitations had expired and denied our petition. It is worthy to note that she did NOT rule our issues were meritless, merely that they were time-barred.

However, on the third issue, relating to hypnosis, Judge Seybert ordered a hearing to determine to what extent hypnosis was used when questioning children, and how gross a constitutional violation this newly discovered evidence proves itself to being.

See the New York Times July 24, 2007 and October 20, 2007

* * * * * *

My original appeal motion, the Memorandum of Law, is available to view or download as an 86 page PDF file. There is a table of contents beginning at page 80. Ron Kuby's Federal Habeas Corpus petition is now also available.

The exhaustive investigation done by the filmmakers in the course of making Capturing the Friedmans uncovered a tremendous amount of exonerating material. (See this short Summary) The prosecution had an obligation to share this information with me at the time they became aware of it, but they kept it secret from me and my lawyer. Had I known of this information at the time, I would have been able to take my case to trial and prove my innocence. It is my hope that by presenting this information now, I will be able to overturn my conviction and clear my name.

Some former computer students got in touch with me after seeing Capturing the Friedmans. They expressed both sympathy and support. Many former computer students have come forward, now as young adults, to say how they were never sexually abused and that they never saw anyone else being sexually abused. They remember when the police came to their house and how they told the police nothing happened. It is my hope that more people who know the truth will be courageous enough to come forward.

It is heartbreaking to learn that some children have grown up believing they were sexually abused because of implanted memory. However, this is not uncommon. For example, many of the children involved in the McMartin case believe they were sexually abused as well. I never sexually abused any children, in any manner whatsoever. I am confident that an impartial judgment of the facts will conclude that I spent 13 years in prison for crimes which never occurred.

Twelve Affidavits in support of my motion may also be viewed or downloaded.

The Supplemental Brief filed by Ron Kuby after he took over the case.

A brief Chronology of the Friedman case.

My judicial conduct complaint against judge Abbey Boklan.

As always I can be reached by e-mail: Jesse@freejesse.net

The history of the appeal filings:

January 2006

Two years from the time of the initial filing of my appeal a decision was finally handed down by the judge in Nassau County.

The motion was denied in its entirety.

The judge did not request any in-court appearances by myself, or the attorneys for oral arguments.

The judge did not grant discovery of the police and District Attorney files on the case.

The judge did not even review the case-file in camera to review in chambers the police file to determine the manner and method of the police investigation.

The judge merely denied my appeal with a simple four page decision.

How's that for justice?

Spring 2006

We appealed the lower-court's ruling to the Appellate Division, arguing prejudice and improper legal basis for the denial of my appeal motion.

April 2006

The Appellate Division declined to review the lower-court's ruling. Now we file with the next higher court, the Court of Appeals.

May 2006

Paperwork filed with the Court of Appeals requesting a hearing before the state's highest court.

June 2006

What a lovely birthday present. The Court of Appeals has declined our request for a review of the lower court's decision.

July 2006

Ron Kuby filed a Habeas Corpus petition with the federal judiciary arguing my federal constitutional rights were violated at the time of my trial, and that the lower court's ruling was contradictory to current federal case-law standards.