"Capturing the Friedmans" sex-abuse fails on technicality

The Court of Appeals has rejected as untimely a challenge to a highly unreliable sex abuse conviction, but not without strongly suggesting that the Nassau County District Attorney take a hard look at the case that inspired "Capturing the Friedmans," a documentary that questions whether a Long Island teenager was railroaded into pleading guilty to crimes that he did not commit.

The case is Friedman v. Rehal, decided on August 16. This is a sad case that reminds us of the mass hysteria that erupted in the 1980s over child molestation allegations, many of which yielded criminal convictions that were vacated on appeal due to the suggestive questioning of children by zealous investigators. The Friedmans, father and son, were among the victims.

Arnold Friedman and his son Jesse gave computer classes at their home on Long Island. In 1987-88, without physical evidence or any complaints of abuse, they were arrested for allegedly molesting a large number of their 8-12 year-old students. The Second Circuit details how the Friedmans were railroaded into pleading guilty, as the community was whipped into a frenzy when the charges were publicized and the local judge presiding over the case decided they were guilty even before she began hearing evidence and threatened to lock up Jesse and throw away the key. The alleged victims were subject to aggressive and suggestive questioning by investigators who would not give up until they got more "accounts" of sexual abuse. The father plead guilty so that his son might have a better chance of acquittal. The son, Jesse, plead guilty under duress.

Years later, Jesse moves to vacate his conviction. He cannot do so. The petition for habeas corpus is untimely. Convicts have only one year to seek habeas relief; for various reasons, Jesse filed his challenge beyond the one year deadline. An exception to the one-year rule permits untimely petitions upon a claim of "actual innocence," but that's a tough one. Jesse says the prosecutors violated his Brady rights in failing to produce evidence that the police used hypnosis in order to implicate him. The hypnosis may have produced a "false memory" from the alleged victim and provided Jesse some ammunition on cross-examination at trial. But the Second Circuit (Raggi, Pooler and Korman [D.J.] says that withholding this kind of impeachment evidence prior to a guilty plea is not a Brady violation. No dice for Jesse.

You have the sense that the Second Circuit would grant Jesse's petition if it could. The Court of Appeals spends the second half of the opinion summarizing the "false memory" convictions during the 1980s and 1990s, when innocent people went to jail for child abuse, only to be vindicated later on, after the courts took a hard look at the questionable interviewing techniques that prompted children to falsely claim sexual abuse. Jesse's case falls squarely within that pattern. The best that the Second Circuit can do is to urge the District Attorney's office to take another look at his case and take seriously her ethical obligation to ensure that justice was done.