Jesse Friedman’s Case and the Appearance of
Impropriety
© Perry Binder 2015-2017
The Friedman
case continues to be defined by delay. Two years after I posed the
question, Is Actual Innocence
‘Capturing the Friedmans’?, the frustrating answer is: We
still don’t know. Below is a tangled story of: evidence withheld by the
Nassau County District Attorney’s office from its own case advisory panel; a
panelist’s subsequent modification of the panel’s original recommendations; a
defamation lawsuit filed by the defense against the DA’s office; the recent election
of DA Kathleen Rice to U.S. Congress; and a judge set to hear Friedman’s case,
though she worked as an Assistant DA with DA Rice for years.
In the above
2012 article, I summarized the case background:
On November 25,
1987, I was sprawled out on my parents’ couch, when my favorite high school
teacher appeared on the TV news. Arnold Friedman was a retired NYC instructor
who taught computer classes in his home for local kids. I watched as he and his
17-year old son, Jesse, were handcuffed and hauled away for horrific child
molestation crimes occurring in their basement. I fell off that couch in
disbelief. Arnold and Jesse Friedman each pled guilty to avoid a trial, and
Jesse learned of his father’s prison suicide in 1995. Since his release in
2001, Jesse has attempted to clear his name, so he no longer must register as a
Level 3 violent sexual predator. In 2003, new facts about his case emerged in
the Oscar-nominated documentary, Capturing the Friedmans, which examined the
evidence against the Friedmans and questioned whether any of the allegations
against them were truthful. On August 16, 2010, the United States Court of
Appeals for the Second Circuit found “a reasonable likelihood that Jesse
Friedman was wrongfully convicted” and that “the police, prosecutors and the
[trial] judge did everything they could to coerce a guilty plea and avoid a
trial.” That November, the Nassau County District Attorney appointed a panel of
four experts to review the evidence against Jesse.
Below are the
key developments since November 2012:
June 2013 - The
DA’s office issues an unfavorable report on Jesse’s attempt to re-examine the
case facts. The report is based on its advisory panel’s findings and
recommendations. (Frankly, this author thought it was the end of the road for
Jesse’s appeal, given panelist Barry Scheck’s stature as co-founder of the
Innocence Project.)
August 2013 -
Nassau County Supreme Court Justice F. Dana Winslow orders the DA’s
office to disclose to the defense “every piece
of paper for People against Friedman.” The DA’s office is appealing that
ruling. (William Murphy, Judge orders release of Jesse Friedman files,
Newsday (Aug. 22, 2013).
June 2014 - Mr.
Scheck states in a sworn
affirmation:
I believe it
would be desirable for the court and the parties, utilizing whatever procedural
mechanisms the court deems suitable, to review materials not available to the
Advisory Panel, such as grand jury minutes, the original case file, and the
results of the re-investigation to aid in finally resolving, to the extent
possible the issue of Jesse Friedman’s guilt or innocence. This affirmation differs markedly with the panel’s June 2013 statement.
(Incorporated
in Memorandum
of Law in Support of Defendant’s Motion to
Overturn His Convictions).
June 2014 -
Counsel for Friedman files a defamation lawsuit against the DA’s office.
August 2014 -
Counsel for Friedman files a motion to have Judge Teresa Corrigan removed from the case, based largely on the latter’s prior
working relationship with DA Kathleen Rice.
September 2014
- The DA’s office consents to an “actual innocence” hearing for Friedman
before Judge
Corrigan.
October 2014 -
Judge Corrigan refuses to step down as presiding judge in the case, though she
worked with Ms. Rice as ADAs in Brooklyn for seven years, and as an ADA for DA
Rice in Nassau County, until the judge was elected to the bench in 2012. Judge
Corrigan cites “no
personal bias or prejudice concerning any party in this matter.”
November 2014 -
DA Rice is elected to the United States House of Representatives.
Under New York
State rules governing conduct of the judiciary, a judge shall disqualify
herself in a proceeding in which “a lawyer with whom the judge previously
practiced law served during such association as a lawyer concerning the
matter.” (22
NYCRR 100.3(E)(1)(b)(ii)). The obvious purpose of
this rule is to prevent bias in the legal system. Further, the rules state that
a judge, even if unbiased, must remove herself from a case if there is the mere
appearance of impropriety:
A judge shall
avoid impropriety and the appearance of impropriety in all of the judge’s
activities.
(A) A judge shall respect and comply with the law and shall act at all times in
a manner that promotes public confidence in the integrity and impartiality of
the judiciary. (Section
100.2(A))
In plain
English, Judge Corrigan should remove herself from this case to maintain public
trust in our judicial system. Such an act is not atypical for judges since they
must project the highest level of professionalism in the legal process. For
example, in The Buffalo Creek Disaster book I
use in class, a judge removed himself from the lawsuit, citing his friendship
with the president of a corporate defendant.
I’ll leave it
to other commentators to consider the legal and/or political motivation of the
players in this case. As a legal studies professor, I focus on objective fact
finding towards truth, not speculation. In 2012, I wrote:
The truth is of
paramount importance, wherever that leads us. I deeply hope that Jesse is
innocent and that the [DA’s advisory] panel recommends exoneration. Then, the
healing process may continue for his living hell of iron bars and digital chains [His sex offender profile is publicly available on the
web]. And so that the rest of the Friedman family, Great Neck community, and
former students of Arnold Friedman may find peace, however important Mr.
Friedman’s role was in shaping productive lives.
But the maddening truth is that if Arnold and Jesse Friedman are innocent, then
the system has committed the gravest injustice of all, by suggesting to and
reinforcing in children that crimes actually occurred in a teacher’s basement.
For 25 years.
Now 29 years
strong, Judge Corrigan, please stop adding to the madness of this matter.
Reverse course and recuse yourself from Jesse Friedman’s case.
Editor's Note: Judge Corrigan eventually recused herself from this case (June 2015).
Published in The Huffington Post with Permission of author
Excerpted here
Challenging wrongful convictions – A2878-A/S7548
Quote from above link: Sponsored
by Assembly Member Jeffrion Aubry and Myrie, this bill would have made
it easier for someone wrongfully convicted of a crime to have that
conviction overturned, even if that person pleaded guilty, by removing
procedural barriers to having new evidence heard by the court. In a veto
memo, Hochul said that she supports the intent of overturning wrongful
convictions and noted that she has approved numerous criminal justice
reforms since taking office as well as existing avenues for
post-conviction relief. But she said this bill is overly broad and would
“create an unjustifiable risk of flooding the courts with frivolous
claims.”
July 7, 2022 update on "Establishes the actual innocence justice act"
2021-2022 Legislative Session: NY State Assembly Bill A98A - Passed the Assembly but ran out of time to pass the Senate. Likely re-introduced in 2022-2023
2017: The NY Court of Appeals ruled, as to whether the DA must turn over every piece of evidence connected to this case, in preparation for an eventual "Actual Innocence" hearing in the Friedman case:
It's up to the trial court to determine whether some witnesses expressly were guaranteed confidentiality by prosecutors — or the circumstances of the case are such that confidentiality "can be reasonably inferred" — and their identifying information and statements can therefore be kept secret. Source: Newsday
2018: The NY Court of Appeals case of People v. Tiger, held 5-2 that there is no "actual innocence" cause of action for someone who has pled guilty, effectively ending Friedman's 440.10 motion (in the absence of legislation).
From the Dissenting Opinion by Judge Wilson, joined by Judge Rivera:
"Ms. Tiger [caregiver for "profoundly disabled ten-year-old girl"] is neither the first nor last innocent person to plead guilty. Ms. Tiger's case (based on facts as she summarizes them, without the benefit of an evidentiary hearing) provides a compelling example. In brief, confronted by Child Protective Services with horrifying photographs of the child's skin blistering, she was: without the assistance of counsel; denied the accompaniment of a representative of her employer who attempted to attend; accused of "having boiled water and thrown it" on the child; and told she was responsible for the skin grafts the child was then undergoing. Ms. Tiger [*11] knew the bathwater was not inappropriately hot, but nevertheless concluded she must have been responsible. Faced with seven years in prison, she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence. What she did not then know was that the child was taking medication that likely caused the blistering. Based on the sequence of events leading up to the child's injuries, and her meeting with the CPS interviewer who all but insisted that Ms. Tiger burned the child terribly, it is not hard to imagine that a compassionate and attentive caregiver — which other evidence in the record shows she was — could begin to believe that she somehow made a mistake and was to blame."
Click here for full Tiger opinion
