Second Circuit Asks DA to Investigate Friedman Prosecution

Friedman v. Rehal (2010)

The U.S. Court of Appeals for the Second Circuit has called on a district attorney to review the case of Jesse Friedman. The request comes in a decision finding that Friedman’s petition for relief from his 1989 conviction does not satisfy the stringent federal requirements for granting relief after conviction. Friedman v. Rehal, __ F.3d __, 2010 WL 3211054 (2d Cir. 8/16/10). The district attorney is free to ignore the request.

Friedman was convicted of 25 counts of child sex abuse in a case made infamous nationally by the documentary film, Capturing the Friedmans. He had helped his father, Arnold Friedman, teach computer classes to children in the family’s home in Great Neck, New York. No student had ever complained of abuse, and no parent had ever observed suspicious behavior, before police began interviewing the students.

Detectives used heavy-handed child interviewing tactics. They refused to accept children’s denials they had been abused and would interview a child as long as necessary to obtain an allegation. They would tell a child that they already knew he or she had been abused, saying sometimes that Arnold or Jesse had admitted it, sometimes that other students had reported seeing it. Children who reported abuse were given pizza parties and police badges. Those who persisted in denying abuse were taunted.

Police never produced transcripts or recordings of their interviews of the children. The mother of one child, though, secretly recorded her son’s interview. That recording was consistent with the accounts of aggressive and suggestive interviewing other students provided.

The appeals court’s decision describes the “vast moral panic [that] fueled a series of highly-questionable child sex abuse prosecutions” across the nation in the late 1980’s and early 1990’s. It details the child interviewing techniques employed in the Friedman case and many others, and the scholarship showing those techniques could readily elicit false reports that in turn would often become false memories of abuse.

“Prosecutors,” the court said, “have an obligation to curb police overzealousness. In this case, instead of acting to neutralize the moral panic, the prosecution allowed itself to get swept up in it.”

After observing Jesse Friedman yet could get relief in a New York state court, the Second Circuit court turned to “the continuing ethical obligation of the District Attorney to seek justice.” That includes the duty “to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted,” according to the Rules of Professional Conduct for New York lawyers. The court said the record showed a reasonable likelihood Friedman was wrongfully convicted. The court expressed its hope the current district attorney, who was not in office at the time of the Friedman prosecution, would undertake a complete review of the case.

A concurring opinion chided the court’s majority for stating more than the reasons the court was denying Friedman relief. The majority answered, “An appellate court is not obligated to become a silent accomplice to what may be an injustice.”