The Second Circuit on “Capturing the Friedmans”

There are few films about domestic and family life more harrowing than “Capturing the Friedmans,” the 2002 documentary about the well-off family from Great Neck, NY, and their journey through the criminal justice system after the father and son were charged in 1987 with multiple counts of child molestation.

(The film is up there with Terry Zwigoff’s brilliant and severely overlooked Crumb, now newly re-released with fascinating audio commentary by the director).

Well the Second Circuit has finally weighed in on son Jesse’s habeas petition, and while denying the appeal the court forcefully addressed misconduct by Nassau County prosecutors and the judge who presided over the trial, all of which took place during a period of child molestation hysteria.

From the NYT:

Mr. Friedman was charged with his father, Arnold (who committed suicide in prison in 1995), and has sought to overturn his conviction through various legal tactics — most recently by arguing that some of the children who accused him were hypnotized before they testified to grand juries.

A United States District Court judge, Joanna Seybert, rejected that claim in a habeas corpus petition in 2008 on grounds that it was filed too late — a decision that the United States Court of Appeals for the Second Circuit reluctantly upheld on Monday. The appellate court, in fact, took great pains to suggest that “a reasonable likelihood” exists that Mr. Friedman may have been wrongfully convicted.

“While the law may require us to deny relief in this case,” the panel of judges wrote, “it does not compel us to do so without voicing some concern regarding the process by which the petitioner’s conviction was obtained.”

Those concerns, the court wrote, included “a moral panic” about child abuse that “swept up Nassau County law enforcement officers” in the 1980s and 1990s, leading them to perhaps feel “comfortable cutting corners in their investigation.” The court wrote, too, that the actions of the Nassau County district attorney’s office were “troubling” because instead of acting to “neutralize the moral panic, the prosecution allowed itself to get swept up in it” as well.

The appellate court also had harsh words for Abbey Boklan, the Nassau County Court trial judge in the case, who has since retired. Mr. Friedman, the federal appeals court found, could not have expected to receive a fair trial from Judge Boklan, “who admitted that she never had any doubt about the defendant’s guilt even before she heard any of the evidence or the means by which it was obtained.” She could not be reached for comment on Monday.

Ron Kuby, Mr. Friedman’s lawyer, said he had never been so pleased by a losing decision, adding it was the first public vindication of Mr. Friedman in more than 20 years. “It’s an incredible ruling,” he said. “It’s the strongest language I’ve ever the seen the Second Circuit use.”

See, this is an example of how to “hold your nose” and enter a ruling that the law compels but which may not be entirely fair or just.  Use your position to actually identify the issues over which you are troubled, so that a spotlight can shine on them and the participants can feel some sense of vindication.

The good news, btw, is that the Nassau County prosecutors are reopening the investigation.

(The bad news, according to Crime and Federalism, is nothing prevents this from happening again.)