After a three-year review sparked by a documentary and the prodding of a federal appellate court, the Nassau County District Attorney's Office is standing behind the conviction of Jesse Friedman in a sexual abuse case 25 years ago.
"Jesse Friedman was not wrongfully convicted," said the report released Monday by District Attorney Kathleen Rice, which concluded, among other things, that many of the victims stood by their abuse allegations, any purported recantations were faulty and that the 2003 documentary "Capturing the Friedmans" contained selective editing.
Though the 155-page report constituted a stinging rebuke to Friedman, who has long proclaimed his innocence after initially pleading guilty, it is also a rejoinder to a decision from the U.S. Court of Appeals for the Second Circuit that denied Friedman habeas relief but voiced concern about police tactics alleged in the film (NYLJ, Aug. 17, 2010).
"By any impartial analysis, the reinvestigation process prompted by Jesse Friedman, his advocates, and the Second Circuit, has only increased confidence in the integrity of Jesse Friedman's guilty plea and adjudication as a sex offender," said the report.
Rice, who was not involved in Friedman's 1988 conviction, said in a statement, "We were fully prepared to exonerate Mr. Friedman if that's where the facts led us. But the facts, under any objective analysis, led to a substantially different conclusion. This exhaustive and impartial process has only strengthened the justice system's confidence that Jesse Friedman was involved in the sexual abuse of children."
The report also was endorsed by a four-member advisory panel established in the wake of the circuit's decision in order to assist the office's review.
"It was the role of the District Attorney and her team to follow the facts, without fear or favor, and to make the best judgment they could under the circumstances presented to them, consistent with the law and the evidence. We believe that is what they did in this case," said the panel, chaired by Mark Pomerantz of Paul, Weiss, Rifkind, Wharton & Garrison.
The panel also included Barry Scheck, cofounder and codirector of The Innocence Project at the Benjamin N. Cardozo School of Law; Susan Herman, a criminal justice professor at Pace University and a former executive director of the National Center for Victims of Crime; and Patrick Harnett, a veteran officer of the New York City Police Department and retired Hartford, Conn., police chief.
"Today is not the worst day of my life," Friedman said at a Monday press conference, accompanied by his wife Lisabeth. "I've had many, many worse days than today and I'm standing strong and I've got as much fight in me—I've got more fight in me—than I've ever, ever had before, so game on."
Friedman has been out on parole since 2001.
His attorney, Ronald Kuby, called the report a "whitewash." Friedman and Kuby said they intend to continue fighting for exoneration.
As the review of the case wore on, Friedman and his attorneys complained about the secrecy by which prosecutors handled the matter. In April, Friedman sued in Nassau County Supreme Court for access to grand jury minutes, the case file and other documents (NYLJ, July 10, 2012, and April 23, 2013).
The sex abuse case started when postal police intercepted child pornography en route to Jesse's father, Arnold. Police then interviewed the young boys enrolled in Arnold's after-school computer classes, which were held in the basement of the Friedman's Great Neck house.
Jesse assisted his father with some classes and would later say that the police pressured students into making claims of sex abuse against Arnold and Jesse.
The report noted that 13 students made statements about Jesse Friedman's abuse in the investigation's first five weeks while "no single detective dominated the investigation, and different teams obtained incriminating statements from different victims."
Moreover, the report said, "Given the compressed timeline, it is unlikely that detectives would have been able to repeatedly visit any one household for hours at a time to induce a child to make false accusations."
Arnold Friedman pleaded guilty in March 1988 in state court to 42 counts of child sexual abuse and was sentenced to a 10- to 30-year term that ran concurrently with his 10-year sentence for a guilty plea in the Eastern District on charges of using the mail to send and receive child pornography. Arnold later killed himself in prison and prosecutors did not review his case.
In December 1988, Jesse was given a six- to 18-year state prison sentence after pleading guilty to charges including 17 counts of first-degree sodomy and four counts of first-degree sexual abuse.
Friedman insists the plea was coerced. But the report rejected the assertion, saying the plea was a "calculation" based on the "optimal strategy in light of the choices available to him."
For instance, the report pointed to a transcript prepared just before Friedman's plea where his defense attorney at the time, Peter Panaro of Massapequa, asked Friedman about his reasons for pleading guilty.
"Significantly absent from that document is Jesse's current claim that judicial or prosecutorial coercion, or even pressure from his family, forced his guilty plea," it said. The report noted that, prior to Friedman's plea, two lie detector tests the defense paid for "indicated deception."
When "Capturing the Friedmans" aired, it included claims that one of the alleged victims was hypnotized before saying Friedman molested him.
Friedman filed post-conviction challenges in both state and federal court, arguing, for instance, that the prosecution should have disclosed the use of hypnosis to his defense attorney.
The report said there was "no credible evidence" hypnosis was used on any complainant.
"Only one complainant, Witness 2, claims to have been subjected to hypnosis during this investigation. But, his treating psychologist swore in an affidavit that she had never hypnotized him," said the report.
The reinvestigation lacked subpoena power and the report said, "Ultimately, the exercise of subpoena power would have required the District Attorney to compel the testimony of individuals who have expressed a clear desire to be left alone, and in some cases, as described below, felt traumatized by the mere mention of Jesse Friedman."
But the report did say that three witnesses reaffirmed their experiences of abuse. Furthermore, the report noted that Friedman's advocates—including Kuby and the filmmakers behind "Capturing the Friedmans"—had asserted that four former students recanted their accusations on film.
"That claim is simply not accurate. While Jesse's advocates have refused to provide the Review Team with all of the information needed to fully assess these claims, the Review Team's investigation has shown that three of the four alleged recantations are not recantations at all. Instead, they are excerpts of larger interviews that, when read in full, demonstrate that the former students have not completely disavowed their original allegations," said the report.
As for the fourth alleged recanter, the report said, "He went on to tell the Review Team that he had no specific memory of being abused, but that he was not saying it did not happen. He also balked at participating in an attempt to exonerate Jesse."
The report also scrutinized "Capturing the Friedmans," faulting it, for example, for editing that purportedly misrepresented views of the late Nassau County Court Judge Abbey Boklan, who sentenced Friedman, to show her bias against him. Looking at one excerpt, the report said, "Capturing the Friedmans" edited the interview to convey the impression that Boklan tied her confidence in Jesse's guilt to her own biases, rather than the evidence she saw during pretrial practice.
In an interview, Andrew Jarecki, the documentary's director, rejected the idea he selectively edited and said he turned over 1,700 pages of interview transcripts to the prosecution. The result did not surprise him.
"We think that it's unusual to expect a DA's office be able to review their own work. It's nothing different than we anticipated," he said.
@|Andrew Keshner can be contacted at email@example.com. The Associated Press contributed to this report.