Wednesday, August 18, 2010

Astounding: Second Circuit of Appeals says there's a 'reasonable likelihood' that a man was wrongfully convicted of sex crimes, but refuses to upset the conviction

This is a must-read story about an astounding case of a likely miscarriage of justice.  Jesse Friedman, who pled guilty when he was just a teenager to all manner of sexual abusing boys, this week was denied habeas corpus relief  by the Second Circuit of Appeals after ample evidence showed that exculpatory evidence was withheld from him by the prosecutor at the time of his guilty plea. Even though the Second Circuit Court of Appeals denied relief, it wrote this chilling statement: "The record here suggests 'a reasonable likelihood' that Jesse Friedman was wrongfully convicted."  The Second Court felt compelled to deny Jesse's Petition for relief, but in a very rare departure from accepted judicial protocol, wrote at great length to explain the likelihood that Jesse was wrongfully convicted.

In immediate response to the Second Circuit's decision, "a team of prosecutors and a panel of law enforcement, legal and social science experts are being assembled to reinvestigate the case of a man convicted in 1988 of sexually abusing children, according to a statement issued on Tuesday by the Nassau County District Attorney's office. . . . The announcement to reopen the case comes in response to a federal appeals court decision that suggested prosecutors had an 'ethical obligation' to reopen the 1988 child molestation case of Friedman."

Here are the facts as outlined in the actual opinion of the Second Circuit, gleaned from the court record and evidence uncovered after the guilty plea:

In 1982, Arnold Friedman, a retired school teacher, began teaching computer classes to children in his family's home in Great Neck, New York. In September 1984, Arnold asked his 15-year-old son, Jesse Friedman, to assist him in teaching classes. Jesse did this until September 1987, when he left to attend college.  After a customs agent intercepted a package containing child pornography addressed to Arnold Friedman, federal agents obtained a list of names of eighty-one students enrolled in Arnold Friedman's computer classes. Detective teams interviewed the students about possible abuse. On November 25, 1987, Arnold Friedman and Jesse Friedman were arrested on a felony complaint alleging child sexual abuse. Between December 1987 and November 1988, Jesse was charged with two hundred and forty-three counts of sexual abuse including allegations from fourteen boys ranging in age from eight to twelve years old. Prosecutors had no physical evidence and relied entirely on allegations made by students. No student had ever complained of abuse, nor had any parent ever observed suspicious behavior, prior to the investigation. Assistant District Attorney Onorato acknowledged that "there was a dearth of physical evidence."

According to the Second Circuit Court of Appeals: "The Nassau County Police Department never produced transcripts, recordings, or videotapes of the student interviews that preceded the indictments. Moreover, because Arnold Friedman and [Jesse Friedman] ultimately pled guilty, the circumstances surrounding the interviews were not explored at trial. Some former students and their parents, however, recall with great consistency that detectives employed aggressive and suggestive questioning techniques to gain statements from children who had attended Arnold Friedman's computer classes. Detectives generally entered an interview with a presumption that a child had been abused and refused to accept denials of abuse. If a child denied being the victim of abuse on a first visit, detectives would often visit the child repeatedly for followup interviews, each lasting as long as four hours, until the child admitted abuse. In one case, detectives visited a child fifteen times and assured the child's mother before the final visit that they were going to stay 'as long as it takes.'" (Emphasis added.) 

Moreover: "detectives would often tell children that Arnold Friedman or petitioner had already admitted molesting them or that other students had claimed to have observed them being molested." And: "The detectives would reward cooperative children with "pizza parties" and police badges. When children did not admit to experiencing sexual abuse, however, detectives would persist in their questioning, sometimes taunting the children for failing to offer the desired answers. The tactics were so aggressive that several former students admit that they responded to them by falsely alleging instances of abuse. Although these children were aware that they were lying to the detectives, they ultimately surrendered to the pressure and "remembered" instances of abuse just to "get [the detectives] off [their] back[s]." And: "The allegations also grew increasingly bizarre, sadistic, and even logistically implausible. For example, [one] indictment described several group molestation exercises, including 'Leap Frog,' in which Arnold Friedman and [Jesse Friedman] allegedly sodomized an entire class of naked boys by 'leaping' from one to the next."  And: "[A]n anonymous student, described as the source of thirty-five sodomy counts, claim[ed] he was subjected to hypnosis prior to recalling abuse. According to the anonymous student, . . . he did not recall any sexual abuse until after he went through hypnosis . . . ."

Is it at all surprising that Jesse Friedman pled guilty?  The "already hostile atmosphere . . . made a fair trial impossible."  So "he made up the story about his father molesting him as a child because he believed it might insulate him from attacks in prison and might persuade Judge Boklan to ask the parole board for leniency on his behalf."

Jesse Friedman now claims that much evidence tending to show that the charges against him were fabricated was withheld from him before he entered his guilty plea; specifically, that (1) some eyewitnesses had initially denied sexual abuse, (2) detectives used interrogation methods known for eliciting false accusations, and (3) at least one suggestive memory recovery tactic—hypnosis—was used to induce memory recall.

The Second Circuit denied Jesse Friedman's petition because he failed to file a habeas petition within one year of the date he learned evidence had been withheld.  Additionally, under the Antiterrorism and Effective Death Penalty Act of 1996 and the judicial decisions interpreting it, the failure to disclose impeachment information prior to a guilty plea does not violate the Due Process Clause.  According to the court: "While the Supreme Court [has] acknowledged that 'the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be,' it held that 'the Constitution does not require the prosecutor to share all useful information with the defendant.'"

The Second Circuit's decision was disappointing, but the court proceeded to write at considerable length about the likelihood that an innocent man was convicted. We will reproduce the entirety of that discussion after the jump:

From FRIEDMAN v. REHAL, United States Court of Appeals, Second Circuit, August 16, 2010:

While the law may require us to deny relief in this case, it does not compel us to do so without voicing some concern regarding the process by which the petitioner's conviction was obtained. The magnitude of the allegations against petitioner must be viewed in the context of the late-1980's and early-1990's, a period in which allegations of outrageously bizarre and often ritualistic child abuse spread like wildfire across the country and garnered world-wide media attention. See, e.g., Susan Bandes, The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial and Due Process, 3 Law Culture & Human. 293, 294 (2007) (noting that the accusations against Arnold and Jesse Friedman arose at "a time at which concern about day care sexual abuse had reached a fever pitch both in the United States and abroad"). The media sensationalized these allegations, generating a national perception that sex rings were widespread and had infiltrated average communities. See, e.g., Devil Worship: Exposing Satan's Underground, Geraldo Rivera (NBC television broadcast Oct. 28, 1988).

Vast moral panic fueled a series of highly-questionable child sex abuse prosecutions.[ 8 ] See Samuel P. Gross, Exonerations in the United States 1989 through 2003, 95 J. Crim. L. & Criminology 523, 539-40 (2005). See generally Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (2003). By 1991, for example, 25 percent of prosecutors had handled at least one case involving satanic abuse. See Elizabeth F. Loftus & Deborah Davis, Recovered Memories, 2 Annu. Rev. Clin. Psychol. 469, 477 (2006). Although many of these cases included "fantastical accusations," such as those of satanic abuse—a strand of accusations which has been discredited entirely—others involved allegations of real and serious crimes committed in an impossible manner. Bandes, supra, at 301. In the Fells Acre case, for example, Gerald Amiraults, a member of a family which owned the Fells Acre pre-school, allegedly "plunged a wide-blade butcher knife into the rectum of a 4-year-old boy, which he then had trouble removing." Dorothy Rabinowitz, Martha Coakley's Convictions, Wall St. J., Jan. 15, 2010, at A19. According to a child witness, a teacher in the school saw Amiraults with the knife, asked what he was doing, and then told him not to do it again. "On this testimony, Gerald was convicted of a rape which had, miraculously, left no mark or other injury." Id.

Overall, at least seventy-two individuals were convicted in nearly a dozen major child sex abuse and satanic ritual prosecutions between 1984 and 1995, although almost all the convictions have since been reversed. See Gross, supra, at 540 & n.40. Some defendants, fearing trial, pled guilty or "no contest" to impossible acts of ritualistic abuse, and in some cases they provided detailed confessions in exchange for immunity or generous plea bargains. See Debbie Nathan & Michael Snedeker, Satan's Silence: Ritual Abuse and the Making of a Modern American Witch Hunt 160-77 (1995). Many have described these widespread prosecutions as a modern-day "witch hunt." See generally, e.g., Richard Guilliatt, Talk of the Devil: Repressed Memories and the Ritual Abuse Witch-Hunt (1996); Nathan & Snedeker, supra; Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1994); Richard A. Gardner, Sex Abuse Hysteria: Salem Witch Trials Revisited (1992).

These prosecutions were largely based on memories that alleged victims "recovered" through suggestive memory recovery tactics, including those petitioner claims were used in this case. Indeed, the dramatic increase in conspiratorial charges of child sexual abuse has been traced to a relatively small group of clinical psychologists who supported the psychoanalytic notion of "repressed memories" and encouraged patients to employ extensive "memory recovery procedures" to "break through the barrier of repression and bring memories into conscious awareness." Loftus & Davis, supra, at 470-71, 483-86; see also Kamala London et al., Disclosure of Child Sexual Abuse: What Does the Research Tell Us About the Ways Children Tell?, 11 Psychol. Pub. Pol. & L. 194, 213 (2005). Popular memory recovery procedures included hypnosis, age regression, dream interpretation, guided abuse-related imagery, use of photographs to trigger memories, journaling, and interpretation of symptoms as implicit memories. Loftus & Davis, supra, at 483-84. These procedures and others commonly employed have great potential to induce false memories. See id. at 484. Hypnosis, for example, has been shown to produce bizarre and impossible memories, including memories of ritualistic satanic abuse, memories from early infancy, memories from past lives, and memories from the future. Id.; see also Rock v. Arkansas, 483 U.S. 44, 59-61 (1987); Borawick v. Shay, 68 F.3d 597, 603-04 (2d Cir. 1995). The prevailing view is that the vast majority of traumatic memories that are recovered through the use of suggestive recovery procedures are false, and that almost all—if not all—of the recovered memories of horrific abuse from the late-1980's and early-1990's were false. See id. at 477.

Moreover, many highly-publicized and large-scale investigations into alleged child abuse conspiracies were also accompanied by a variety of interviewing techniques designed to assist children in recalling abuse—techniques which an extensive body of research suggests can induce false reports. See, e.g., Sena Garven et al., More Than Suggestion: The Effect of Interviewing Techniques From the McMartin Preschool Case, 83 J. Applied Psychol. 347, 347 (1998). Garven et al. describes a "package" of techniques that, although based on a different highly-publicized 1980's abuse case,[ 9 ] are remarkably similar to the techniques employed in petitioner's case. The package included (1) "Suggestive Questions," (2) "Other People" (telling the child that the interviewer has already received information from other people regarding the topics of the interview), (3) "Positive and Negative Consequences" (responding positively to accusations of abuse and negatively to denials of abuse), (4) "Asked-and-Answered" (re-asking a child a question he or she has already unambiguously answered), and (5) "Inviting Speculation."[ 10 ] Id. at 348-50.

Scholars have suggested that each interviewing technique can induce false reports on its own. For example, they cite research which indicates that children often change their answer when asked the same question more than once during an interview, either because they assume that the first answer was incorrect or because they would like to please the adult interviewer. See Thomas D. Lyon, Applying Suggestibility Research to the Real World: The Case of Repeated Questions, 65 Law & Contemp. Probs. 97, 106 (2002). But the techniques have their greatest impact in combination. Garven et al. examined the effect of the "package" of techniques described above on false allegations of wrongdoing compared with suggestive questioning alone. See Garven et al., supra, at 350. They found that children exposed to the package of techniques falsely alleged wrongdoing over three times as often (58 percent of the time, compared to 17 percent of the time). Id. at 354. This error rate of nearly 60 percent occurred after less than five minutes of exposure to the combined techniques. Id. Though the study examined children who were somewhat younger than the complainants in petitioner's case, see id. at 350, the results are instructive as to the general dangers of suggestive interviewing techniques.

Finally, once individuals "recovered" memories of abuse or otherwise labeled themselves victims of abuse, they were generally encouraged to participate in various activities on an individual and community level to reinforce and develop existing memories of abuse. Loftus & Davis, supra, at 483. There, proponents of recovered memories advised alleged victims to expand on existing memories through suggestive memory recovery procedures (both in and out of therapy), participation in survivor groups, and solicitation of consistent information from others, "all with significant potential both to bias construction of historical narratives and to lead to confabulation of false memories." Id. When allegations of abuse span an entire community, these activities can provide an outlet for community reinforcement—an outlet which can strengthen survivor identities and foster the collective growth of increasingly inaccurate memories. See id.

When viewed in its proper historical context, petitioner's case appears as merely one example of what was then a significant national trend. This was a "heater case"—the type of "high profile case" in which "tremendous emotion is generated by the public." Bandes, supra, at 310. In heater cases, the criminal process often fails:

Emotions like fear, outrage, anger and disgust, in situations like these, are entirely human. The question is what the legal system can do to correct for the excesses to which they lead. The crux of the moral panic dynamic is that the legal system, in such cases, does not correct for them. It gets swept up in them instead.

Id. at 312. The record in this case suggests this is precisely the moral panic that swept up Nassau County law enforcement officers. Perhaps because they were certain of Arnold Friedman and petitioner's guilt, they were unfazed by the lack of physical evidence, and they may have felt comfortable cutting corners in their investigation. After all, "[t]horoughness is a frequent casualty of such cases." Id. at 309. The actions of the prosecution are also troubling. In representing the sovereign, a prosecutor is a "servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer." Berger v. United States, 295 U.S. 78, 88 (1935). "[W]hile [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Id. Thus, prosecutors have an obligation to curb police overzealousness. In this case, instead of acting to neutralize the moral panic, the prosecution allowed itself to get swept up in it.

Petitioner has come forward with substantial evidence that flawed interviewing techniques were used to produce a flood of allegations, which the then-District Attorney of Nassau County wrung into over two hundred claims of child sexual abuse against petitioner. Petitioner never had an opportunity to explore how the evidence against him was obtained. On the contrary, the police, prosecutors, and the judge did everything they could to coerce a guilty plea and avoid a trial. Thus, with the number of counts in the indictments and Judge Boklan's threat to impose the highest conceivable sentence for each charge, petitioner faced a virtually certain life sentence if he was convicted at trial. And the likelihood that any jury pool would be tainted seemed to ensure that petitioner would be convicted if he went to trial, regardless of his guilt or innocence. Nor could he have reasonably expected to receive a fair trial from Judge Boklan, the former head of the Nassau County District Attorney's Sex Crime Unit, who admitted that she never had any doubt of the defendant's guilt even before she heard any of the evidence or the means by which it was obtained. Even if innocent, petitioner may well have pled guilty.

As such, this case is unlike other appeals which raise concerns about the quality of the evidence and the guilt of the defendant. In those appeals, we defer to the judgment of the jury after the defendant has received a fair trial. We take comfort in "[t]he established safeguards of the Anglo-American legal system [which] leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury." Hoffa v. United States, 385 U.S. 293, 311 (1966). In this case, the quality of the evidence was extraordinarily suspect and never subjected to vigorous cross-examination or the judgment of a properly instructed jury.

Judge Friendly observed in his seminal essay on habeas corpus that, "[a] remedy that produces no result in the overwhelming majority of cases,... an unjust one to the state in much of the exceedingly small minority, and a truly good one only rarely, would seem to need consideration with a view to caring for the unusual case of the innocent man without being burdened by so much dross in the process." See Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgements, 38 U. Chi. L. Rev. 142, 148 (1970) (footnote omitted). The Supreme Court has not finally resolved the issue of whether there is a federal Constitutional right to be released upon proof of actual innocence. As Chief Justice Roberts recently observed, "Whether such a federal right exists is an open question. We have struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet." District Attorney's Office v. Osborne, 129 S. Ct. 2309, 2321 (2009) (citations omitted).

Nevertheless, even if we also assumed that such a federal right exists, and that petitioner could meet the "high standard any claimant would have to meet" to obtain relief, we could not reach that issue here. This is so because petitioner has not exhausted that claim in the New York State courts even though the New York cases suggest that relief on this basis may be available pursuant to N.Y. Crim. P. § 441.10(1)(h). See, e.g., People v. Day, 26 Misc. 3d 1205(A), 2009 WL 5191433, *13 (N.Y. County Ct. Dec. 31, 2009); People v. Bermudez, No. 8759/91, 2009 WL 3823270, *22 (N.Y. Sup. Ct. Nov. 9, 2009); People v. Wheeler-Whichard, 884 N.Y.S.2d 304, 313 (Sup. Ct. 2009); People v. Bozella, 25 Misc. 3d 1215(a), 2009 WL 3364575, *16 (N.Y. County Ct. Oct. 14, 2009); People v. Cole, 766 N.Y.S.2d 477, 484-85 (Sup. Ct. 2003). Considering the facts of the case and the circumstances that caused him to plead guilty, this case may be one in which the New York courts may be particularly sympathetic to a proceeding seeking such relief.

The focus on the impediment to legal relief, however, should not obscure the continuing ethical obligation of the District Attorney to seek justice. We refer here especially to New York Rules of Professional Conduct 3.8, Comment 6B, which explains that "[t]he prosecutor's duty to seek justice has traditionally been understood not only to require the prosecutor to take precautions to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted." N.Y. Rules Prof'l Conduct 3.8, cmt. 6B. In language particularly pertinent here, the Comment goes on to say:

[W]hen a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the prosecutor should examine the evidence and undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful. The scope of the inquiry will depend on the circumstances. In some cases, the prosecutor may recognize the need to reinvestigate the underlying case; in others, it may be appropriate to await development of the record in collateral proceedings initiated by the defendant. The nature of the inquiry or investigation should be such as to provide a "reasonable belief"... that the conviction should or should not be set aside.


The record here suggests "a reasonable likelihood" that Jesse Friedman was wrongfully convicted. The "new and material evidence" in this case is the post-conviction consensus within the social science community that suggestive memory recovery tactics can create false memories and that aggressive investigation techniques like those employed in petitioner's case can induce false reports. Indeed, it is not even clear from the record that Assistant District Attorney Onorato was aware of the suggestive questioning techniques that were used by the Nassau County police.[ 11 ] More importantly, the record does not speak to whether the then—District Attorney of Nassau County, whose principal role was administering and overseeing the activities of one of the largest such offices in the United States,[ 12 ] was aware of the techniques used by the Nassau County detectives, who were not members of his staff.

Only a reinvestigation of the underlying case or the development of a complete record in a collateral proceeding can provide a basis for determining whether petitioner's conviction should be set aside. We hope that, even if she continues to oppose relief in collateral legal proceedings, the current Nassau County District Attorney, who was not responsible for the investigation and prosecution of Jesse Friedman, will undertake the kind of complete review of the underlying case suggested in the Comment to Rule 3.8.