Andrew Keshner, New York Law Journal June 25, 2014
Jesse Friedman, who pleaded guilty more than 25 years ago in an infamous child sex abuse case and then claimed the admissions were forced, filed a motion Tuesday asserting his “actual innocence” and blasting the Nassau County District Attorney’s review of his case that found no grounds to upset his conviction.
Insisting Friedman never abused the students who took computer classes in his parent’s Great Neck home in the 1980s, Friedman’s attorney, Ronald Kuby, pushed for a court hearing, saying Nassau County prosecutors “have done everything possible to usurp the role of the court as the fundamental arbiter of justice.”
“From coercing Friedman’s guilty plea, to opposing an evidentiary hearing on technicalities, to manufacturing a specious Conviction ‘Integrity’ Report, the D.A.s have arrogated to themselves the power to determine guilt and have consistently tried to close the Friedman case by claiming it is resolved,” Kuby said in motion papers.
The Criminal Procedure Law §440.10 motion marked Friedman’s third post-conviction challenge in a case depicted by the 2003 Oscar-nominated documentary “Capturing the Friedmans.”
An initial 2004 state court challenge was denied, as well as a federal habeas corpus petition. However, the U.S. Court of Appeals for the Second Circuit took the unusual step in 2010 of urging a “completer review” of the case record that it said suggested a “reasonable likelihood” Friedman was wrongfully convicted under then-District Attorney Denis Dillon.
After a three-year review that was assisted by an advisory panel that included Barry Scheck, co-founder of the Innocence Project at the Benjamin N. Cardozo School of Law, District Attorney Kathleen Rice concluded Friedman’s conviction should stand (NYLJ, June 25, 2013).
Rice is a candidate in the Democratic primary for Congress.
In his motion, Friedman, 45, called Rice’s report “error-riddled” as well as “false and mean-spirited.” It pointed to alleged victims who testified before the grand jury decades earlier but have now recanted.
The motion also included an affirmation submitted by Scheck who took no side in the case, but who said the “starkly different conclusions” about witness credibility should be resolved by a court.
“The defense raises very specific claims that there are a number of serious substantive errors in the Rice Report,” Scheck said in the affirmation. “I believe public confidence in the fair resolution of this matter would be greatly enhanced if the court could find a way to resolve these issues, including issues of witness credibility, using appropriate safeguards.”
When Rice released the report last year, the panel‹which did not have access to grand jury minutes, conducted limited interviews and did not make credibility determinations‹said the prosecution review team did an “excellent job under difficult circumstances” and came to the task with “no preconceived notions” and no agenda.
“If the evidence had convinced them there was a reasonable probability Jesse Friedman was not guilty, or there was new evidence that met even the most lenient legal standard available for relief, we have no doubt the Review Team was prepared to recommend without reservation that Friedman’s conviction be overturned,” the panel said.
Sex Abuse Charges
The case against Friedman began when postal inspectors learned Friedman’s father, Arnold, had ordered pornography from the Netherlands depicting underage teenagers.
Arnold Friedman was a teacher and ran an after-school computer class where Jesse Friedman assisted.
Authorities questioned more than 100 students, and the defense said police used aggressive, leading interviews to get the statements they wanted.
Arnold Friedman pleaded guilty in March 1988 in state court to child sexual abuse counts and was sentenced to a 10-to-30-year term, to run concurrently with a 10-year term for his guilty plea in the Eastern District on charges of using the mail to send and receive child pornography. He died in prison.
Jesse Friedman maintained his innocence from his arrest, but said he was pressured into pleading guilty, influenced by, among other things, the alleged willingness of the late Nassau County Court Judge Abbey Boklan to impose maximum consecutive sentences if he sought trial.
Friedman pleaded in December 1988 to charges including 17 counts of first-degree sodomy and four counts of first-degree sexual abuse. He reasserted his innocence soon afterward.
Friedman was released on parole in 2001. He is registered as a Level 3 sex offender, the most restrictive designation under the state’s Sex Offender Registration Act.
In the motion, Friedman said “overwhelming evidence” showed his innocence. Of the 14 alleged victims who testified before the grand jury decades earlier, the defense said it has talked with 10. Four have “completely repudiated the statements ascribed to them as children.” A fifth did not recall any abuse and sixth said he had no recollection of the abuse prior to therapy when the initial investigation was underway. Four others refused to reconfirm their accounts.
Separately, the defense said it spoke with 12 other non-complaining students who said no abuse occurred. At least one non-complaining student was in each class where abuse allegedly occurred.
The motion papers identify one of the non-complaining students as a current Nassau County Assistant District Attorney.
Friedman cited a January ruling from the Appellate Division, Second Department, People v. Hamilton which established a freestanding claim of actual innocence . The Hamilton court said if a petitioner makes out a prima facie case of innocence, a hearing is warranted. Prima facie showings occur when there is “‘a sufficient showing of possible merit to warrant a fuller exploration'” the ruling said.
Friedman also claims that improper police tactics produced unreliable, coerced testimony. Moreover, Boklan’s threats of maximum sentences ran afoul of Friedman’s Sixth Amendment rights to a fair trial, he said.
At a press conference Tuesday, Kuby said he would work “as long as it takes to clear Jesse’s name.” He said “virtually everything” discussed n the 440 motion had been submitted to the prosecution as it prepared its review.
Friedman told reporters his “exoneration [was] certain. It’s just a matter of having to fight against a district attorney that refuses to acknowledge the evidence right in front of her.”
John O’Brien of the Law Office of Ronald L. Kuby also appears on the brief.
Apart from the 440 motion, Friedman and the prosecution are fighting over two other issues.
The prosecution is appealing Nassau County Supreme Court Justice F. Dana Winslow’s ruling to have the office release all documents to Friedman pursuant to the Freedom of Information Law. And last week, Friedman filed a defamation suit against Rice and press staff for creating allegations against him “seemingly out of whole cloth” in the Report.
The case has been assigned to Nassau County Court Judge Teresa Corrigan.
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