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Is Actual Innocence "Capturing the Friedmans," 25 Years Later?

Posted: 11/27/2012 6:23 pm

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. To date, the panel has not released its findings. On November 18, 2012, a Great Neck, N.Y. town hall was convened to present a 75-minute new evidence reel, with Andrew Jarecki and Marc Smerling, director and producer respectively of Capturing the Friedmans, civil rights attorney Ronald Kuby, and Jesse Friedman in attendance. (I previewed the video for this article. The body of new evidence is posted at FreeJesse.net.)

In my Introduction to Law class, we discuss the Friedman case side-by-side with the following cases:

Troy Davis, executed in 2011 for the shooting death of a police officer. Mr. Davis maintained his innocence and in later years, seven of the nine adverse trial witnesses recanted their testimony. (An eighth person was allegedly a suspect in the crime.) The Supreme Court of Georgia voted 4-3 that this new evidence was insufficient to warrant a new trial for Mr. Davis. Calvin Johnson, whose DNA test cleared him of a 1983 rape, while maintaining his innocence and serving 16 years in prison. After unsuccessful appeals, the person in charge of preserving the evidence at the county courthouse was retiring and "told to throw away all of the old evidence that he had been storing in his closet. A District Attorney noticed the boxes of evidence in a parking lot dumpster outside the courthouse, and decided they should be preserved. Johnson's evidence was among the boxes pulled from the trash." DNA results from the rape kit indicated that Mr. Johnson was not the source of the sperm, and he was set free.

In a classroom debate of innocence versus guilt, many of my students say they would never plead guilty to a crime they didn't commit. Then we discussed the Friedman case, where Jesse faced 300-plus criminal counts, a judge who said he would get the maximum sentence on each count if convicted at trial, and a potential jury understandably whipped into fear by the case. Jesse took a plea deal, admitted his guilt at sentencing, and affirmed his guilt in a prison interview with Geraldo Rivera in 1988. (Presentation by Jesse Friedman, May 17, 2012) He now claims that these statements were made in a misguided attempt to engender sympathy from the judge, fellow prisoners, and the general public, by fabricating a story that his father molested him as a child:

I spoke to Geraldo Rivera in what I believed to be a last-ditch effort to obtain public sympathy and explain the situation in some way. Up to that time the press had done nothing but vilify me. In my interview for the Geraldo show, I said that I had been molested by my father and sexually abused children in the computer classes. I am ashamed about going on the Geraldo show and telling those lies. I did this for the same reasons that I told Judge Boklan a similar confession. I had already pled guilty to these crimes (so protesting my innocence was moot), I was facing a long sentence, and it was the only explanation for this alleged criminal behavior which I thought would provide me an opportunity to be released from prison before the full 18 years of my sentence had passed.

Today, the evidence pointing to innocence is piling up, based on findings that the police, prosecutors, and judge did not act properly in the case. (Read the full United States Court of Appeals court decision here.) In addition, four of the 14 children who allegedly testified against Jesse in the secretive Grand Jury proceedings recanted their testimony, while approximately 20 people who were students in the computer class stated on tape or film that they witnessed no irregular activities in the Friedmans' basement. (Read the Recanting Affidavits and watch a video of Jesse Friedman and attorney Ron Kuby discussing the case, dated February 24, 2012.)

On the other hand, when Capturing the Friedmans appeared in theaters, six of the alleged victims spoke out to dispute the veracity of the new evidence, two of whom wrote letters to the Academy Awards Committee. Further, assertions of the movie's allegedly biased point of view appear in a video entitled "What Was Left Out? A Critique of Capturing the Friedmans." Some of these allegations were addressed in 2007 by an attorney in Mr. Kuby's law firm:

You have a group of kids who initially said they were not abused, wrangled by a group of therapists who utilized highly suggestive methods like hypnosis until the kids emerged from the sessions with the most lurid and highly unbelievable examples of sexual abuse and going directly to the grand jury, he said. There is no more inherently unreliable form of testimony than that.

Arnold Friedman maintained his innocence in this case, and pled guilty in an attempt to assist Jesse in his subsequent case. However, Mr. Jarecki's documentary points out that years earlier, the elder Friedman twice engaged in inappropriate behavior with young boys, unrelated to this case. In 2010, I wrote Capturing the Friedmans Dad Was My Unforgettable Teacher: Apply His Classroom Lessons to Set His Son Free:

I don't know if Jesse is innocent, but I do believe he was pressured into accepting a plea deal and his guilt cannot be proven "beyond a reasonable doubt." At the moment, his status as a sex offender is in the hands of prosecutors, who hopefully can apply Arnold Friedman's classroom lessons of compassion, rather than implicate Jesse by default for his father's sins.

I still believe that statement today, but also recognize the difference between "not guilty" and "actual innocence."

It is unclear why the panel of experts appointed by the Nassau County DA's office has yet to release its findings after two full years. Some people will say that Jesse made his own bed by pleading guilty and thus losing his right to cross-examine his youthful accusers in open court, or even hearing what they have to say today as adults. While true, I believe that those accusers may play a role in shaping the panel's recommendation to the DA's office on whether or not to exonerate Jesse. I presume that the panel members reached out to some or all of the people who maintain that crimes occurred in the Friedman household. The panel needs to assess the obvious sincerity of the alleged victims' claims with the defense's theory that controversial therapy techniques and police tactics shaped these claims.

What lessons can college students learn from studying cases of justice and injustice? That justice is slow and requires a lucky break? (Calvin Johnson) That justice sometimes doesn't occur at all? (Troy Davis) That professing your innocence, going to trial against a stacked deck, and facing a life sentence is the way to proceed? (Jesse Friedman's alternative route) That you need a freakin' movie to bring your personal cause to life?

Well, this is no time for an academic discussion. The truth is of paramount importance, wherever that leads us. I deeply hope that Jesse is innocent and that the panel recommends exoneration. Then, the healing process may continue for his living hell of iron bars and digital chains. 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.

Perry Binder, J.D. is a legal studies professor at Georgia State University. He blogs at 99 Motivators about college-related social justice issues.

 

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