21 November 2017
New York’s Highest Court Rules That Nassau County Prosecutors Cannot Rely On Flawed Confidential Witness Theory To Prevent Disclosure.
Contact: Lonnie Soury, Soury Communications, Inc., Lsoury@soury.com, (917) 519-4521
Albany NY- November 21, 2017- – The NYS Court of Appeals removed a crucial impediment from Jesse Friedman seeking to obtain files going back nearly 30 years that could very well help him prove his innocence. In a unanimous decision, all seven judges agreed: “Here, the Second Department applied the wrong standard when it held that the District Attorney of Nassau County properly denied petitioner Jesse Friedman’s FOIL request for records relating to his conviction.
The court relied on its precedent that identifying information and statements gathered in the course of a police investigation from witnesses who do not testify at trial are presumptively confidential and, as such, are exempt from disclosure under FOIL. No other Appellate Division Department has adopted this interpretation of section 87 (2) (e) (iii). Rather, the other Departments have properly required some express or implied assurance of confidentiality to justify withholding information, including the names or identities of sources. The federal courts have required a similar showing under the federal Freedom of Information Act (FOIA).” https://www.nycourts.gov/ctapps/Decisions/2017/Nov17/56opn17-Decision.pdf
The Nassau County prosecutor and the NYS Appellate Court for the Second Department had ruled that Friedman was not entitled to his files because of confidential witness protections. The prosecutors claimed that Friedman was not entitled to all interviews with students in the classes where they alleged wrongdoings occurred, or any other evidence in their files that might support Friedman’s contention that he is absolutely innocent. The Court of Appeals rejected that argument and asked the Supreme Court in Nassau County to review Friedman’s request to open his files.
Friedman Attorney Ron Kuby said, “This decision is an emphatic triumph for the principles of open government, and creates statewide uniformity rules of disclosure. It is a triumph the wrongfully convicted, who will have a far easier task obtaining essential documents. It is a stinging rebuke to successive Nassau County District Attorneys who first created a moral panic over non-existent sex abuse allegations, then tried to create a moral panic as to the consequences of releasing the documents that demonstrate prosecutorial misconduct.”
Jesse Friedman said: “I am very pleased with the decision of the Court of Appeals which has reversed the efforts of the Nassau DA to prevent the opening of the Friedman investigative files, and now enables me to seek the evidence in those files which I know will help prove my innocence.”
Although the Court was “acutely aware” of the time that had passed since Friedeman’s FOIL request, it still remanded the matter back to the lower court to permit the DA’s office to make a showing of “confidentiality” under the correct legal standard.
Friedman will go back to court seeking to resume this innocence hearing before Judge Terence P. Murphy, and ask that he be granted discovery to review evidence in the files that can help prove his innocence.
Nassau Supreme Court Had Ordered that Complete Friedman Filed Be Opened
Nassau Supreme Court Judge Winslow’s order that the complete Friedman file be opened. Judge Winlsow, the only person apart from the DA to review the files, concluded that there was exculpatory evidence withheld, that none of the witness statements were written by the children themselves, and that those statements had glaring discrepancies.
In August 2013, after reviewing Friedman case files himself and holding multiple hearings on the issue, Nassau County Supreme Court Justice F. Dana Winslow conveyed from the bench his grave concerns about the exculpatory nature of the materials withheld from Friedman, and ordered the disclosure of “every piece of paper” with Friedman’s name on it. Speaking to the DA, Judge Winslow stated, “If there is a doubt on your part, it is every aspect, every part, every piece of paper that has been generated in the matter of People against Jesse Friedman, the 1987,1988 case.”
Judge Winslow discovered that the District Attorney had withheld thousands of pages of materials, including all of the original witness statements and investigative materials demonstrating police misconduct, from an Advisory Panel charged with overseeing the DA’s Friedman case review
DA Kathleen Rice appealed the decision to the Appellate Court, Second Department which ruled that Friedman was not entitled to the files.
The NYS Court of Appeals reverses that decision: “Order reversed, with costs, and matter remitted to Supreme Court, Nassau County, for further proceedings in accordance with the opinion herein. Opinion by Judge Rivera. Judges Stein, Fahey, Feinman and Peters concur. Judge Whalen dissents in part in an opinion, in which Judge Garcia concurs. Chief Judge DiFiore and Judge Wilson took no part.”
Background
In 1988, in the midst of a national hysteria regarding false allegations of child sexual abuse in schools and day care centers (epitomized by the now-overturned McMartin Preschool case), police alleged that Jesse Friedman, his father Arnold, and three other teenagers had violently abused hundreds of children attending after-school computer classes at the Friedmans’ Great Neck home, though over a period of five years, no child or parent had ever complained, and no medical or physical evidence was ever produced.
Eighteen year-old Jesse Friedman, then a freshman studying music and psychology at SUNY Purchase, was charged with 243 counts of child sexual abuse, and forced to plead guilty after being threatened with life in prison by Judge Abigail Boklan who, despite having heard no evidence in the case, was convinced of Jesse Friedman’s guilt. Friedman served 13 years in maximum-security prisons and remains branded as a Level III “violent sexual predator.”
In 2003, the case became the subject of the Academy Award-nominated documentary, Capturing the Friedmans, directed by Andrew Jarecki, which raised doubts about the validity of the prosecution. In the film, police officers admit to shocking misconduct, a number of the original complainants recant their accusations, and the Judge admits she “never had a doubt” about the Friedman’s guilt despite never having seen evidence at trial.
After Friedman fought for decades to clear his name, in 2010 the U.S. Court of Appeals for the Second Circuit issued an extraordinary opinion, concluding that there was a “reasonable likelihood Jesse Friedman was wrongfully convicted.”
Part of the mountain of new evidence discovered or brought forward by Friedman’s legal team, is a complete recantation from Ross Goldstein, the prosecution’s only adult witness, and more than twenty-five statements from eyewitnesses to the computer classes stating that no abuse occurred – despite prosecution claims that children were raped in “plain view” of the entire class. Goldstein, who was charged with 118 counts of sexual abuse of children, now says that:
- “…Every single thing found in my testimony was untrue and said by me at the time to avoid a trial. I never saw Jesse or Arnold Friedman abuse any children, nor did I ever sexually abuse any children.”
- “I did not witness Jesse or anyone else commit any crimes in the Friedman home with any computer student. My testimony before the grand jury was a result of tremendous and unrelenting pressure and intimidation by the police and district attorney’s office in which I was eventually coerced to lie about crimes taking place in order to try to save myself and be granted the YO status deal that was being offered to me.”
Barry Scheck, the most prominent member of District Attorney Kathleen Rice’s “Friedman Case Advisory Panel” and co-founder of The Innocence Project, submitted an affidavit with Judge Corrigan asking the Court to undertake a “full evidentiary hearing” and release to Friedman’s lawyers the original case files that have been kept secret by the DA for over 27 years.
In Scheck’s words: “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.”
Scheck joins a chorus of other respected voices in criminal justice in requesting the disclosure of these files, including N. Scott Banks, the former law secretary for the Judge who convicted Jesse. Banks wrote a letter requesting that Nassau Banks wrote a letter requesting that Nassau County Supreme Court Justice Winslow “grant Mr. Friedman’s application, and direct the District Attorney to disclose this extremely relevant evidence to his attorneys and provide a level of transparency very much needed in this matter.” Banks felt that grand jury testimony in the case was equally suspect as he was one of the few people to have read the grand jury minutes: “The grand jury testimony of child witnesses, largely elicited with leading questions by the prosecutor, demanding ‘yes or no’ responses, provided absolutely no detail.”
For more information about Jesse Friedman’s wrongful conviction, go to www.freejesse.net.