Monday, January 9, 2017

Jesse Friedman’s Case and the Appearance of Impropriety

Case Updates:  New York's highest court in November 2017 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:  
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

Summer 2018 -- The recent NY Court of Appeals case of People v. Tiger, holding 5-2 that there is no "actual innocence" cause of action for someone who has plead guilty, effectively ends the 440.10.  It is unclear what next steps will be.
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 

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

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