A School Bus Driver’s Win: Does it Uncapture the Friedmans?
By Dan Wise; November 14, 2012
Film director Andrew Jarecki made Jesse Friedman famous in his haunting and acclaimed film released in 2003, “Capturing the Friedmans.”
In 1987, Jesse and his father Arnold Friedman had become pariahs in the toney Long Island suburb of Great Neck, after both were accused of molesting young boys, ages 8-13, who participated in after-school computer classes at the Friedman home. Both pleaded guilty to charges that included sodomy and sexual abuse. Arnold committed suicide in prison in 1995. Jesse spent 13 years in prison before being released in 2001.
But who ever heard of Robert Izzo? Izzo, a school bus driver in nearby Hicksville (both towns are in Nassau County), was charged with child molestation several months after Jesse Freedman entered his guilty plea in December 1988. In February 1991 Izzo was convicted of molesting four youths associated with a Boy Scout troop where he had been a leader. Several months later he pleaded guilty to molesting 16 kindergarteners on his bus route.
But, four years later, something extraordinary happened. A lawsuit for damages brought by the parents of the kindergartners against Izzo as well as the bus company he worked for (Harran Transportation Co.) and the Hicksville School District went to trial in the state Supreme Court in Mineola. After a bruising 11-month courtroom battle, a Nassau County jury found that Izzo had not abused the kindergartners. Ten of the twelve children whose claims were decided in the civil case had been among the 16 children involved in the criminal case. Izzo died in prison in 2002 while litigation to lift his conviction was pending.
The Izzo verdict could move the needle in Jesse Friedman’s 25-year quest to clear his name. It is not an academic exercise. Classified as a violent sex offender, the highest category, Friedman lives under restraints that make living a normal life difficult. Now 43, and married for six years, the prospect of having children is daunting. He would not be able to take his children to school. His children’s friends would be barred from coming to their home.
With his record, it has been difficult to build a career. He tried to take advantage of a social work program sponsored by the state of New Mexico which would have paid for his tuition and provided him with a stipend in exchange for a pledge to work on the state’s reservations for Native Americans. His wife, Lisabeth Walsh, was accepted, but he was rejected because of his record, he said in an interview. In the meantime, the couple makes a “modest amount” running an on-line bookstore.
Friedman was 19 when he entered his guilty plea in December 1988. He had assisted his father, a high school chemistry teacher, with the computer classes held at his home since he had been 15.
Friedman’s 1998 guilty plea has come under fire on two fronts: in “Capturing the Friedmans” and from a ruling issued by a federal appeals court in Manhattan which cited information disclosed in the film. Jarecki, in the three years he spent making the film, interviewed detectives, parents and children. He also obtained the transcript of a tape in which two detectives, without their knowledge, were recorded interviewing a 13-year old, who had taken Friedman’s computer class. Those materials brought forth information about the suggestive, and sometimes harsh, techniques that the detectives used in their questioning of the children.
In 2010, a federal appeals court panel in Manhattan strongly suggested that Friedman’s plea should be set aside, finding that the prosecution consisted of a toxic brew of aggressive interview tactics, a hostile judge, junk science and tabloid coverage that sent the Great Neck community into a “moral panic.”
Writing for the U.S. Court of Appeals for the Second Circuit, Judge Edward R. Korman found the evidence against Jesse Friedman “extraordinarily suspect,” giving rise to “serious issues as to [his] guilt” ( Friedman v. Rehal, 618 F.3d 142).
Korman, however, concluded that the panel was without authority to set aside Friedman’s guilty plea because of procedural requirements governing habeas corpus proceedings, which are the sole legal vehicle for attacking a prior conviction.
Korman, instead, urged Nassau County’s current District Attorney Kathleen M. Rice to conduct a “complete review” to determine whether the plea should remain in place. Although the panel divided 2-1, the dissenter, Judge Reena Raggi also wrote, “the facts alleged are disturbing and may well warrant further inquiry by a responsible prosecutor’s office.”
Two days after the decision was issued Rice agreed to undertake the recommended review. Several months later she appointed an advisory panel, consisting of four experts in the criminal justice field, including Barry Scheck, a founder of the Innocence Project and a professor at Cardozo Law School, to serve in an “advisory role” for the office’s reinvestigation.
The other members of the panel are Mark Pomerantz, a partner at Paul Weiss Rifkin Wharton & Garrison, who formerly headed the criminal division in the U.S. Attorney’s Office in Manhattan; Susan Herman, a professor at Pace Law School and former executive director of the National Center for Victims of Crimes, and Patrick J. Harnet, a former police chief in Hartford, Conn.
Nearly two years have passed since the panel was appointed, but no report as yet has been issued.
A Powerful Punch
The verdict in the Izzo case reinforces the concerns raised in both the movie and the Second Circuit opinion. The fact of the verdict standing alone packs a powerful punch. Two Nassau County juries, separated by five years during which community passions have subsided, reached starkly different conclusions.
In 1997, the jury in the parent’s trial for damages answered a specific question on its verdict sheet, finding by a 5-1 vote, that Izzo had not abused any of the 12 kindergarteners who had been passengers on his bus route. That verdict is quite different from that reached in 1991 in a related case, in which another Nassau County jury had unanimously convicted Izzo on all 35 counts of molesting four adolescents in the Boy Scout case.
The civil verdict was further surprising because the families as plaintiffs in a civil case only had to prove that their children had been abused by a “a preponderance of the evidence.” In contrast, in the earlier criminal case, the jury had found that the evidence showed that Izzo was guilty “beyond a reasonable doubt,” a more rigorous standard.
The kindergarten prosecution, unlike the Boy Scout case, did not go to trial. Instead, Izzo had pleaded guilty to molesting the 16 children on his bus route who had accused him of molesting them.
In terms of legal posture, the parents in the civil case were the analogue of the prosecution in a criminal case. Yet, the parents were able to persuade only one of six jurors that Izzo had abused their children. Had the case been criminal, that would have left the prosecution 11 votes shy of a verdict. In New York, civil cases are tried by six-person juries and require five votes for a verdict.
Beyond the raw impact of the verdict itself, evidence brought to light through discovery and trial testimony in the kindergartners’ civil case reinforces information aired in the movie concerning the use of overly aggressive interview tactics in Jesse Friedman’s case. Further, some of that material suggests that there were links between the detectives investigating the case and therapists treating the children which gave rise to inappropriate appearances which the District Attorney’s Office disapproved of. Those materials echoed statements some of the detectives in the Friedman case made to the press and the filmmakers.
The Nassau County District Attorney’s Office declined to comment while its review is ongoing. In its statement, however, the office described the investigation as “robust, active, and ongoing with the benefit of a distinguished panel of experts.”
Inspector Kenneth Lack, who is head of the Nassau County Police Department’s press office, also declined to comment citing the District Attorney’s on-going investigation.
DA Office: Formal Association ‘Must Be Avoided’
One of the documents, which surfaced in the Izzo case, was a stern letter, which the Nassau County District Attorney’s Office fired off to the Police Department, while the two Izzo cases were pending. The letter was written on behalf of then District Attorney Dennis Dillon by Barry W. Grennan, who at the time was the chief of the office’s major offense squad, to complain about the fact that a detective involved in the Izzo investigation was scheduled to appear at a panel discussion with therapists from North Shore Hospital.
In the letter, dated March 26, 1990, Grennan warned that “in order to protect the integrity of the Robert Izzo investigation and prosecution, any formal association such as that scheduled between [the police, and the DA’s office] with North Shore University Hospital, who is responsible for the counseling of many of Izzo complainants, must be avoided.”
“Since the inception of this case, the Office of the District Attorney has strived to investigate and prosecute this matter independently of any psychiatric or therapeutic health professionals,” Grennan wrote, explaining that “law enforcement investigations into matters of child sexual abuse must remain free from any appearance that law enforcement officials are utilizing the services of psychological agencies and medical professionals in their criminal investigations.”
But, there is evidence related to both investigations of ties between detectives and therapy programs at North Shore Hospital more substantial than those which were the subject of the office’s letter to the police department—the appearance of a detective, who has been assigned to the investigation of a child molestation case, appearing on a panel with therapists from a program treating some of the children involved in the case.
A report prepared by Renee Krieger, a certified social worker, while the Izzo investigation was in progress, stated that more than 50 families whose children had ridden on Izzo’s bus had been seen at North Shore Hospital’s Family Crisis Program. In the report, which related to one of Izzo’s passengers, Krieger wrote on Dec. 5, 1989, that the families had been seen “since September 1989.” Izzo was indicted in the kindergarten case on Oct. 26, 1989 and pleaded guilty in April 1991.
A North Shore intake form for a child whose family was a plaintiff in the civil case stated that the child had been referred by Nassau County Detective Nancy Myers. The form was dated Sept. 5, 1989, roughly seven weeks before Izzo was indicted.
Additionally, the civil files yielded a letter signed by a parent of a child involved in the school bus case to Sandra Kaplan, the head of child psychiatry at North Shore. In the letter, the child’s mother complained about being billed for a “free” therapy session which she had been mistakenly told “would help our criminal case.”
In a similar vein, the North Shore Child and Family Guidance Center formulated a treatment plan for one of the complainants in the Boy Scout case, which called for helping “the entire family … cooperate with the appropriate authorities.”
Moreover, Henry G. Miller, who defended the Harran Transportation Company in the civil trial, wrote in a post-mortem published in 2001 in the New York State Bar Association Journal:
“On the recommendation of the police, the children were sent to North Shore Hospital for extensive psychological therapy, lasting for months, in some case up to a year. The therapists at North Shore, for the most part, assumed the children were abused. When the children would deny or forget abuse, the therapists claimed that the children were in denial.”
Miller, a partner at Clark Gagliardi & Miller in White Plains, is one of the state’s most acclaimed trial lawyers.
Ronald L. Kuby, Friedman’s current lawyer, said that, because of legal constraints imposed on post-conviction ligitation, materials that surfaced in the Izzo trial were not a part of the record of the federal case that led to Korman’s opinion.
The information in the Izzo discovery and trial documents dovetails with material that became public during the Friedman investigation. For instance, Fran Galasso, then the head of Nassau County’s Sex Crimes Squad, which was in charge of the investigation, was quoted in Newsday as stating that disclosures made by “previously identified victims during sessions with their therapists” had resulted in additional arrests.
Likewise, a summary of an academic program in San Diego in January, 1990 in which both Galasso, Kaplan and two other therapists from North Shore were panelists, stated: “The presentations will address the individual treatment of these children, group therapy of the children and their parents and use of hypnosis in the treatment of dissociation in victim (sic).” Disassociation is a form of amnesia induced by traumatic experiences.
Although the abstract does not specifically identify who “these children” are, there is little doubt that the children are among those who attended the Friedmans’ after-school computer classes. The abstract describes the panelists as having collaborated “in the individual and group treatment of victims of one of the largest child pornography and sex abuse cases in the United States. This case which has been recently successfully prosecuted involved hundreds of children in an upper socioeconomic suburban area.”
Other topics to be discussed, according to the program summary, were relevant legal issues including reliability of children as witnesses and the role of clinicians in preparing children for testimony.
Also in a recorded interview given to the filmmakers, a detective stated, “we — recruited a therapist. She got on board. She was there for all the family meetings and offered free counseling.”
Michelle Pinto, director of media relations for North Shore Hospital, declined to comment, explaining that state law bars the hospital from either confirming or denying whether it provided mental health treatment to any person.
Aggressive Questioning Revealed in Movie
Andrew Jarecki, a co-founder of Moviefone, developed a significant amount of material, indicating that the detectives had been very tough in interviewing the young witnesses involved in the Friedman investigation.
For instance, a detective on camera describes his interviewing technique as follows: “If you talk to a lot of children you don’t give them an option really. You just be pretty honest with them. Have to tell them pretty honestly that we know you went to Mr. Friedman’s class. We know how many times you’ve been to the class. You know, we go through the whole routine. We know that there was a good chance that he [Arnold] touched you or Jessie touched you or somebody in the family touched you in a very inappropriate way.”
A second detective told a lawyer involved in making the film that she had interviewed a child 15 times—one of the sessions lasted four hours—before the student stated that he had been abused. Though not a part of the film, the lawyer provided Kuby, Friedman’s lawyer, with an affidavit recounting his discussion with the detective.
A mother of one of the children secretly recorded her son, 13, being interviewed by two detectives. A transcript of the recording reveals that the detectives used several high-pressure tactics during the interview:
- They told the 13-year-old: “This little monster inside you. This little voice and every now and then it rears its ugly head. Unless the victim knows enough about the problem to get himself straightened out. If suppressed, it’s a two fold problem. One is anger and frustration. And the other is acting itself out. It’s a no win situation unless the person goes and gets help and admits that he was victimized.”
- The questioning was misleading when the detectives said they were trying to “help” the victims because “no further charges would be made.” That statement was only partially true. It was true that Arnold Friedman had pled guilty and no longer faced additional charges. But, the investigation against Jessie Friedman was still in progress and he subsequently faced dozens, if not hundreds, of new charges.
- The detectives’ questioning was suggestive and applied peer pressure: “We’ve had kids who stated that they saw you and that you’re involved, OK?”
- The youth was steadfast throughout the questioning that he had not seen any molestation. As the detectives exited the house, one told the child’s mother, “[your son] was a wise guy and I didn’t like his answer.”
Jarecki in a recent interview said that the child’s mother had accidentally discarded the tape. In an earlier state court proceeding, the District Attorney’s office objected that the tape was inadmissible as evidence because the mother had not authenticated it. But, Korman expressly referred to the tape in his opinion, saying it portrayed “detectives using hostile techniques, including suggestive and harassing questioning.”
The transcript was prepared by Peter Panaro, the attorney who represented Friedman from June 1988 through his plea and sentence. In the affidavit, Panaro recounted that he viewed the tape in the presence of the child’s mother and that the transcript he prepared accurately reflects what was recorded on the tape.
Similarly, evidence of aggressive questioning surfaced in the civil Izzo trial. A detective testified at a deposition that she had “probably” asked the children to imagine what a camera on the bus would have seen. She then added, “Well there had been a mention of a camera, of someone taking pictures of kids on the bus, and just to get them to realize that someone had seen something on the bus.”
A second detective testified at a deposition in the Izzo case that she would interview some children two or three times, sometimes as many as five. The initial interviews on average lasted about two hours, and overall interviews “lasted as long as it would take me,” she added. And the father of one of the kindergartners testified at a hearing related to his family’s claim against the school district that that two detectives conducted an interview with his son which lasted four hours and ended at midnight.
The circumstances in which some of the children initially accused a second bus driver that handled the same route covered by Izzo, and later recanted those accusations, suggest that their testimony was quite malleable. According to the testimony at a pre-trial hearing testimony of an investigator working for Izzo’s employer, the Harran Transportion Co., the second round of interviews took place after the detectives discovered that the other driver, Stanley Oles was a former New York City Transit police officer. No charges were brought against Oles.
According to a transcript of testimony from Maureen Riordan, the lead prosecutor in the Izzo matters, the second round of interviews took place because an inexperienced detective had been assigned to the Sex Crimes Squad and his interviews of the children had resulted in false accusations against Oles. Riordan was called as a defense witness.
Close Parallels between Two Cases
The two prosecutions bore many of the same earmarks: no parent had complained that their child had been mistreated; there was no physical evidence that any child had been abused, despite claims of sodomy (Friedman case) and sodomy and rape (Izzo case); some of the same detectives worked both cases and some of the same therapists treated children involved in both cases; and tethered by time and geography, both cases unfolded in the same media market with public opinion inflamed against the defendants.
Read in the context of those parallels, the civil Izzo verdict, and the evidence that undergirded it, has the potential of changing the way the world views the Friedman plea. Legally, the Izzo and Friedman cases have no direct bearing on each other. But does not the verdict in the civil Izzo case provide the ingredients that Korman wrote were so sorely missing from the Friedman case? Korman posed his point powerfully: the court is “not obligated to become a silent accomplice to what may be an injustice.”
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I wish to acknowledge the role that former Queens Supreme Justice William Erlbaum and Jocelyne Kristal, an attorney who was co-trial counsel on the Izzo, civil case, played in bringing the Izzo civil verdict to my attention. Kristal, a solo practitioner in Westchester whose practice concentrates on civil right cases, was of counsel to Agoglia, Fassberg, Holland & Crowe, which has since disbanded.
©DanielJWise2012