Nearly two years after the U.S. Court of Appeals for the Second Circuit took the unusual step of urging a “complete review” of what it suggested could have been the wrongful conviction of an innocent man in a notorious case of mass child molestation, the defendant and his lawyer have become frustrated at what they say is the secretive way in which the Nassau County District Attorney’s Office is conducting the probe.

“We started this process excited, we were eager and certainly completely willing to participate fully in whatever the process was,” said Jesse Friedman, 43, who, after 13 years in prison is on parole and living out of state, where he operates an online bookstore. “But we’re definitely entering a bit of a twilight zone of not having any idea what’s going on,” he said in an interview.

Officials of the district attorney’s office say that hundreds, if not thousands, of hours have been devoted to the investigation, although they will not identify witnesses or discuss how many people have been interviewed. They insist that they will not “cut corners” on what they characterized as a “comprehensive” inquiry being conducted under unique circumstances. And they say they do not know when it will be completed.

Jesse Friedman and his father Arnold were arrested and charged with molesting children who took computer classes at their Great Neck home.

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, to run concurrently with a 10-year term for his guilty plea in the Eastern District on charges of using the mail to send and receive child pornography.

Jesse was sentenced to six to 18 years on his guilty plea in December 1988 to charges that included 17 counts of first-degree sodomy and four counts of first-degree sexual abuse—a plea he insists was coerced.

Arnold killed himself in prison, and Jesse was released in 2001.

Their case was portrayed in the 2003 documentary Capturing the Friedmans, which was nominated for an Academy Award. Andrew Jarecki, the film’s director, as well as researchers and other members of the production team have continued to work on the case.

Starting in 2004, Jesse Friedman has unsuccessfully challenged his conviction in both federal and state court. He has contended, among other things, that prosecutors should have disclosed the use of hypnosis to help complainants recollect incidents of sexual abuse.

In August 2010, the Second Circuit, in an opinion by Eastern District Judge Edward Korman, rejected the legal basis of Friedman’s Brady claim and denied his petition for a writ of habeas corpus.

However, Korman and Judge Rosemary Pooler issued an opinion in which they recalled “a vast moral panic” in the late 1980s and early 1990s about child sexual abuse, criticized the use of questionable memory recovery techniques such as hypnosis in interviewing alleged victims, and accused the police, prosecutors and the judge of doing “everything they could to coerce a guilty plea and avoid a trial.”

Judge Reena Raggi said her colleagues went too far in assuming misconduct without conducting a hearing but, nevertheless, said the facts were “disturbing and may well warrant further inquiry by a responsible prosecutor’s office” (NYLJ, Aug. 17, 2010).

District Attorney Kathleen Rice, who was not Nassau’s chief prosecutor when the Friedmans were convicted, appointed a panel of experts in November 2010 to guide her office’s review.

Attorney Ronald Kuby, who represents Friedman, said that he has become “mind-boggingly frustrated” with how that review is proceeding.

Kuby says his frustration stems from the “inability to get simple answers to basic questions… Does the panel stand on different legal footing than civilians? What evidence has been reviewed and can we see it?”

Saying that Friedman has “withheld nothing” and complied with all information requests, Kuby said he was frustrated “with the utter and total lack of transparency and odd notion that when we’re done, we’ll tell you how we got there.”

‘Comprehensive Review’

The district attorney’s office responds that it has conducted a diligent review and that it continues to seek information.

“This is a comprehensive review undertaken by the D.A’.s office alongside a distinguished panel of legal experts to determine whether or not an innocent man was wrongly convicted. The independent panel has been privy to every aspect of the review to ensure its objectivity, thoroughness and transparency. We continue to encourage Mr. Friedman, Mr. Kuby, Mr. Jarecki and others to provide any relevant information they have to the panel,” John Byrne, a spokesman for the Nassau County district attorney, said in a statement.

Chief Assistant District Attorney Madeline Singas said the office would not “cut corners” in the probe.

As for the concern of Friedman’s advocates that information is being kept from them, she said, “Transparency has to be balanced against our legal obligations.”

Within the district attorney’s office, a total of eight people have worked or continue to work on the review: one of whom was specially retained from an outside company. None was in the office when Friedman was arrested or prosecuted. Of the eight, four are executive-level staffers, underscoring the priority put on the case, said Singas.

Prosecutors could not say when the investigation would be completed. Sheryl Anania, executive assistant district attorney, said there are “still things out there we want to review.”

Anania and Singas noted that the office has previously reviewed convictions in light of new evidence. Nevertheless, they said that neither their office—nor, to their knowledge, any other prosecutor’s office in the country—has ever had to review a conviction under these circumstances at the urging of a circuit panel, whose own ruling was sparked by the release of a documentary.

Moreover, Singas added that the office’s use of a panel of outside advisers in the review was “entirely new.”

The panel is chaired by Mark Pomerantz, a partner with Paul, Weiss, Rifkind, Wharton & Garrison, and includes Barry Scheck, co-founder and co-director of the Innocence Project at Benjamin N. Cardozo School of Law; Susan Herman, a Pace University criminal justice professor and former executive director of the National Center for Victims of Crime; Patrick Harnett, a veteran of the New York City Police Department and retired Hartford, Conn., police chief (NYLJ, Nov. 9, 2010).

Scheck, Herman and Pomerantz did not respond to requests for comment. Harnett could not be reached for comment.

Singas wrote in a July 5 letter to Kuby that prosecutors, throughout the investigation, “have routinely apprised the Panel of the material supporting conclusions we have drawn, and invited the Panel to accept or reject our analysis.”

The letter said the office has “consistently informed” panel members about interviews conducted and their substance and has prepared charts and other analytical documents the advisers have had the opportunity to review, question and use “to direct our investigation.”

“Accordingly, the Panel continues to fulfill its function as a reviewing body, by guaranteeing that we have evaluated all available evidence in a fair and objective manner, and guiding the review process,” Singas wrote. “Though the final decision in this case will be made by District Attorney Kathleen Rice, it will be made in conjunction with the Panel, whose endorsement of the integrity of the process will provide the public and Mr. Friedman with confidence that justice was done.”

After receiving the letter, Kuby said it had not answered most of the questions he had raised.

He also questioned the district attorney’s decision to use a “reasonable probability” standard in evaluating whether Friedman was wrongfully convicted.

Singas wrote that “this rule is well-defined, and offers Mr. Friedman the benefit of the standard of review that would have applied had he been granted an evidentiary hearing.”

She added that the office also planned to weigh whether Friedman was “entitled to relief in the interests of justice.”

Kuby has been pressing for a “reasonable belief” standard to guide the review.

Extensive Interviews

Kuby said Friedman has had three extensive sessions with representatives of the district attorney’s office as well as one meeting with the advisory panel.

See Friedman’s Submission to the panel.

He said that prosecutors also had talked with Peter Panaro, who represented Friedman when he pleaded guilty; retired Nassau County Court Judge Abbey Boklan, who handled the case, and her then-law secretary, N. Scott Banks.

Kuby said that although he has asked, prosecutors have refused to tell him whether any of the alleged child victims who testified before the grand jury have come forward to discuss their testimony. The district attorney’s office declined to disclose how many people it had interviewed.

Panaro, a solo practitioner in Massapequa, said he was questioned by a number of staffers for several hours last year.

He recalled telling the interviewers his client was “wrongfully convicted” and that he did not “believe for a second Jesse Friedman was guilty of any of this. I don’t believe any of this happened and I think the only reason Jesse pleaded guilty despite his admission to me was because he truly believed he was going to be convicted and be in jail until he was 70 years old.”

Salvatore Marinello of Garden City says the district attorney’s office contacted him this spring to ask for a written submission recounting his previous representation of four former students who maintained they had been abused by Friedman.

The former students retained Marinello in an effort to avoid testifying for a 2004 post-conviction challenge Friedman brought in state court. Marinello noted that his clients said at that time that their statements remained “consistent with what they told police” during the original investigation.

He did not know whether the district attorney’s office had talked to his former clients in their current review.

Jarecki, the director of Capturing the Friedmans, gave an hour-long video presentation to the advisory panel in late June.

In an interview, Jarecki declined to comment on any discussions he has had with the district attorney’s office or the panel. But he noted his research team has spoken to five of the 14 original complainants who testified before the grand jury.

Four of the five complainants have recanted or disavowed their testimony, he said. The fifth maintains he was molested, but Jarecki said he had no contemporaneous recollections of the incident and instead made the claims after hypnosis sessions.

Jarecki said his team has talked to another seven computer class participants who were never involved in the case and said no molestation ever occurred during their classes.

Jarecki’s team talked to one half of the complainants and non-complainants during the production of the film, and one half since its release.

“We became the de facto contact for people who were involved in the case, many of whom remain confused and disturbed by it,” said Jarecki, who added that there were no plans for a sequel.

“Because of the film, I feel a responsibility to continue to pursue the truth. The justice system failed so miserably in this case, it’s unconscionable to miss an opportunity to help improve the process for others,” he said.

He said that his researchers’ time and energy have been donated, although they previously helped Friedman raise money by, for instance, doing a benefit where the film was screened.

Kuby speculated in an interview that the secrecy of the probe could be related to “institutional bias,” rooted in a desire to approach the review as if it was a criminal investigation without outside input.

He said that the prosecutors also had “an institutional interest in making the process as difficult as possible and as unlikely as possible to yield results favorable to a convicted person. Not because they’re evil. They want to keep this window as closed as possible with only a tiny, narrow escape for the most obviously meritorious and clearly innocent people as possible.”

Kuby said that while he thinks the advisory panel members are approaching the review in good faith, “I just don’t know what’s happening.”

He acknowledged that both the district attorney’s office and panelists faced “a difficult process. It is inherently difficult to try to re-construct what is really the distant past in such detail.”

Meanwhile, Friedman would like to have a child with his wife, but he has been registered under state law as a “Level-3 Violent Sexual Predator” and is concerned that unless he is absolved, the child might be taken away from him or ostracized.

Friedman said that he and his advisers have not discussed the possibility of filing a civil suit if his conviction is overturned.

“That’s not what this has been about. This has always been about two things: Allowing me to have the rest of my life as a full and free citizen and it’s not just about me proving the truth I’m innocent, but proving the truth for everyone else involved as well.”