Barry Scheck, a founder of the Innocence Project who has written the “book” on how to conduct post-conviction investigations, in a surprise move yesterday, submitted an affirmation supporting Jesse Friedman motion for a full-blown fact hearing seeking to overturn his 1998 guilty plea to molesting young boys in his Great Neck home. Read the affirmation.
Scheck was one of four outside experts tapped by Nassau District Attorney Kathleen Rice to “guide” her office’s review of Friedman’s 1998 plea. Rice agreed to conduct a post-conviction review after a blistering opinion was issued by the U.S. Court of Appeals in Manhattan, which strongly suggested she had an ethical obligation to do so.
The Second Circuit’s opinion, in turn, drew heavily from material in a widely acclaimed documentary “Capturing the Friedman” which was nominated for an Oscar in 2003.
Friedman served 13 years in prison and upon his release in 2001 was classified as a top-level sexual offender.
Scheck’s affirmation comes, almost to the day, a year after Rice’s office completed its review, which found no basis for overturning his conviction, a finding that at the time was embraced by the four-member advisory panel. In a four-page statement released last June 25, the panel put its imprimatur on the District Attorney’s review, stating that the attorneys conducting the review “did an excellent job under difficult circumstances.” The advisory panel further wrote, “we have no doubt [if warranted by the facts] that the Review Team was prepared to recommend without reservation that Friedman’s conviction be overturned. But that is not how the facts played out for the review team.”
There is a stark difference between the content and tenor of the June 25, 2013 document, and the affirmation Scheck submitted this morning, in which he “urge[d] the court to accord Mr. Friedman a full evidentiary hearing on the merits of his claims.”
In breaking with the conclusion of the other three advisory panel members, Scheck states that it would be “desirable” to review, among other documents, materials not available to Advisory panel such as grand jury minutes, the original case file …”
In his affirmation, Scheck states that the panel was aware that those materials were never given to the defense. In fact, he states that “ordinarily, following best practices in a Conviction Integrity Review it is desirable to have substantial disclosure of the prosecution’s file, grand jury minutes and police reports to the defense.” Those views are also expressed in an article Scheck wrote for the Cardozo Law Review in 2010, entitled “Professional and Conviction Integrity Programs: Why We Need Them, Why They Work and Models for Creating Them.”
In fact, Friedman’s lawyer, Ronald Kuby, made repeated effort to get access to those materials from the District Attorney’s office during its three-year investigation into the validity of Friedman’s plea. Friedman’s team also pressed Scheck that, despite the “best practices,” the prosecution had not provided it with grand jury and police materials.
Scheck, through a spokesman, declined to comment. The District Attorney’s Office has taken the position that those documents are required to remain confidential because they contain the names of sex victims. Friedman’s lawyers contend that the victims’ names could be redacted.
DA Ordered to Turnover Documents
Two months after the DA’s office issued its 155-page report re-validating Friedman’s conviction, Nassau County Supreme Court Justice F. Dana Winslow granted Friedman’s motion and ordered the DA’s office to provide the defense with all records maintained by the Nassau County Police Department and the District Attorney’s office, including grand jury minutes. The District Attorney’s office has appealed Winslow’s order, which has been stayed until the Appellate Division, Second Department issues a ruling. The panel’s four-page report last June stressed that its “primary focus” was on “process issues.”
The report listed four-areas for its inquiry but there was no reference to the “best practice” of broadly sharing materials with the defense related to the investigation and the ensuing prosecution. In his Cardozo Law Review, Scheck pointed to the Dallas District Attorney’s Office as having the “most prominent and successful” Conviction Integrity Unit in the nation. The very first of that office’s “best practices,” listed by Scheck, was if “a plausible claim of innocence” is presented, the integrity unit should make “the prosecution’s entire file, including work product” available to lawyers asserting the innocence claim.
There can be little doubt that Rice tapped her advisory committee for its halo value. Scheck, in that regard, is the first among equals. He became a national figure for his work with the “dream team” in the O.J. Simpson case and as co-head of the Innocence Project, which he founded with Peter Neufeld in 1992. At the innocence project, mainly through the use of DNA evidence, Scheck has had an outsized role in elevating claims of actual innocence onto the nation’s legal agenda.
The three other members of the advisory panel are also prominent in their fields and bring extensive experience with the criminal-justice system to the task of post-conviction review: Mark F. Pomerantz, a partner at Paul, Weiss, Rifkind, Wharton & Garrison and former head of the Criminal Division of the U.S. Attorney’s Office in the Southern District of New York; Patrick J. Harnett who headed the police department in Hartford, Conn. after a 32-year career with the New York City Police Department; and Susan Herman, a professor at Pace Law School and former executive director for the National Center for Victims of Crime.
Scheck’s affidavit seeks to justify his belated concern for the integrity of Friedman’s conviction upon unspecified “very specific claims that there are a number of serious substantive errors in the Rice report.” Those claims were contained in Friedman’s motion in Nassau County Court for relief from his conviction. It is Friedman’s third application for post-conviction relief (one in federal court and the other also in Nassau County).
Friedman filed for post-conviction relief this morning without awaiting a determination as to whether he is entitled to the broad discovery that Winslow ordered he receive. Perhaps, his game plan will be to move to supplement his motion if the Second Department affirms Winslow. In any event, Scheck—by highlighting the need for a broad hearing at which grand jury and police department materials will be available to Friedman’s lawyers—is putting a spotlight on an issue pending before the Second Department. While that has no legal relevance to the issues before the appeals court, there can be little doubt that public perceptions are an important backdrop to the court’s deliberations.
Rice used the advisory panel to create a public perception that her office’s work was unimpeachable. With Scheck’s new affidavit in hand, is not Friedman’s team attempting to do the same thing?
The Lines Have Been Drawn
In its 2010 ruling, the Second Circuit found 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).
Director Andrew Jarecki, in the three years he spent making the film, compiled material in which detectives described how they pressed the alleged young victims to make statements and also acknowledged recruiting psychotherapists to treat them. Likewise, film highlighted material from a clandestinely recorded interview of a 13-year old who was told by a detective that unless he acknowledged that he had been molested there will be “a little monster inside you … which every now and then rears its ugly head.”
The District Attorney’s Office heatedly disputed the film’s portrayal of events in the case, complaining that in one instance unedited transcripts showed that Jarecki used “selectively edited and misleading film portrayals.” It also countered that the clandestinely recorded tape of the 13-year old’s interview is missing and that the only evidence is from notes taken by Friedman’s prior attorney notes taken when he viewed the video.
The DA’s report also stated that Jesse Friedman’s father, Arnold Friedman confessed to Jesse’s uncle (who was shown in the film as being very distressed with Friedmans treatment), that both father and son had been involved in the abuse.
Arnold Friedman, who conducted afterschool computer classes in the family’s Great Neck Home, had pleaded guilty to molestation charges and committed suicide while in prison. Jesse Friedman, who was 19 at the time he pleaded guilty, assisted his father in conducting the classes