Friedman Gets Good Vibes at Court of Appeals

In the 16 years since Jesse Friedman, the subject of an Oscar-nominated documentary, was released from prison in 2001, he has sought—largely without success—to clear his name of sexually abusing young boys who took after-school computer lessons in his home.

But, Wednesday, he must have enjoyed a rare moment of hope as four of seven judges on New York’s Court of Appeals sent clear signals that they were likely to revive his quest to get access to the records compiled by the Nassau County District Attorney’s Office prior to his guilty plea in 1988.

His path forward still appears clouded, however, since the entire panel struggled with question of how his claim for the records should be assessed, should they decide — as seems likely — that the Brooklyn-based Appellate Division, Second Department erred in throwing his case out of court.

Friedman is seeking to use New York’s Freedom of Information Law (FOIL) to obtain the prosecution records he needs to prove his claim that he is actually innocent of the sex crimes he pleaded guilty to. That is a tall order.

But, he has already assembled extensive information strongly indicating the Nassau County District Attorney’s will provide him with the crucial information he needs to win exoneration.

Much of the information he needs is contained in the the documentary, “Capturing the Friedmans.” In fact, the director of the film, Andrew Jarecki, while making the film, became so convinced that Friedman had been railroaded, that he has teamed up since the movie was released in 2003 with Friedman’s lawyer, Ron Kuby, to develop further information casting doubt upon the tactics used by the prosecution to get his guilty plea. Read prior WiseLawNY story with more background information on the Friedman story.

That information includes:

1. A recantation from the only adult witness to testify against Friedman.
2. Recantations from five of the computer class students who initially said that Friedman had abused them.
3. Statements from 25 witnesses that they had not seen any untoward activities at the computer classes.

Further, both in the film and in affidavits, the former students, now adults in their late 30s or early 40s, recounted how they had been browbeaten to give false testimony against Friedman during lengthy interrogations (one running as long as seven hours), which extended late into the night without their parents being present.

In a similar vein,  a mother, whose son told the police that he had not seen any abuse, recorded two detectives trying to dissuade him by telling him “Arnold Friedman in court says that he sodomized children.”

Friedman claims that he only pled guilty because the trial judge, Abigail Boklan, threatened him with life in prison if he went to trial and was convicted. As it was, he was sentenced to 18 years in prison and served for 13 prior to his release. His father, Arnold Friedman, who was a high school teacher in Great Neck also pled guilty and in 1995 committed suicide in prison.

 

A Short-Lived Victory

Ruling on Friedman’s FOIL request in 2013, Nassau County Justice  F. Dana Winslow ordered the Nassau County District Attorney’s Office to turn over “every piece of paper that had been generated during the investigation and prosecution of Friedman in 1987-88. Winslow issued the order on the strength of his finding that the prosecutor’s office was required to open its files because it failed during its investigation to provide Friedman with massive amounts of exculpatory documents, which it had an obligation to give to him because they might have aided his defense.

The central question at Wednesday’s hearing was whether the Second Department had used the proper test in deciding whether the district attorney’s office was under an obligation to turn over the file compiled during the Friedman prosecution. The test used by the Second Department was different from the test used by the other three departments of the Appellate Division—the First, Third and Fourth—as well as the standard under the federal Freedom of Information Act.

The Second Department’s rule shields all information from disclosure in cases that end with a guilty plea rather than a guilty verdict. The other three departments and the federal test require disclosure if the witness had been given a promise of confidentiality or there was evidence from which such a commitment could be inferred.

Applying its test, the Second Department, by a 3-1 vote,  reversed Winslow’s ruling because Friedman had pled guilty rather than going to trial. As a result, court orders have put the matter on hold for the last four years.

 

Judges Left Scratching their Heads

The Second Department’s ruling left several of the judges on the Court of Appeals panel scratching their heads. Justice Karen Peters, the presiding justice of the Appellate Division, Third Department, her quizzical tone telegraphing amazement, asked whether such an approach would even shield statements by witnesses who “didn’t see anything.” Such a rule is “so broad” that I have “a hard time understanding” what, if anything, would be required to be disclosed under the state FOIL law.

Court of Appeals Judges Jenny Rivera and Leslie Stein said they were similarly confused. Court of Appeals Judge Eugene Fahey further criticized the rule as creating a “Catch-22” by shifting the burden to citizens requesting the document by denying them access to materials that would support their claims.

Justice Peters and Justice Gerald Whalen, the presiding justice of the Third Department, Appellate Division sat as members of the panel because Chief Judge Janet DeFiore and Judge Rowan Wilson had recused themselves.

In addition to the members of the panel referred to above, Court of Appeals Judges Michael Garcia and Paul Feinman rounded out the panel that heard the 45-minute argument.

Nassau County Assistant District Attorney Judith R. Sternberg sought to uphold the Second Department’s ruling, arguing that implicit in a parent allowing a child to be interviewed is a promise of confidentiality.

Several of the judges threw out suggestion for possible rules to be employed on remand but seemed far from agreement on the issue.

That possibility brought an agonized cry from Kuby, Friedman’s lawyer. “I am old. I don’t have enough time to start this thing all over again,” he said.

Justice Winslow had already retired two years ago.

 

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