Nassau County District Attorney Asks Judge to Deny Jesse Friedman Right to Discovery

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The Nassau County District Attorney, in a legal filing with the criminal court earlier this month, has called on Judge Teresa Corrigan to deny Jesse Friedman’s defense team the right to discovery and subpoena power, two very important elements in any fair trial, in his upcoming actual innocence hearing in Nassau Criminal Court.

“Defendant’s motion for a subpoena duces tecum (subpoena for the production of evidence) and for post conviction discovery should be denied in every respect.” See http://bit.ly/1cZrT5X

Twenty-seven years after Jesse Friedman was wrongfully convicted, and a dozen years of fighting to overturn that conviction, this filing is the latest attempt by the Nassau County DA to continue to keep the files of the Friedman investigation closed to defense attorneys as well as the public. The filing is also intended to prevent Friedman’s team having the opportunity to review elements of the investigative file, which is believed to contain evidence of his innocence.

The DA has said that our request for discovery, the process that all defense attorneys go through prior to a hearing, is a “fishing expedition” and, “a misguided attempt to get unfettered access to the prosecution’s files.” They also say there is no “constitutional right to post conviction discovery, even though the New York State Legislature has allowed it in certain cases.”

Want proof it’s not a fishing expedition? You may remember that Judge F. Dana Winslow, in August 2103, ordered all the files opened in the interest of justice. http://bit.ly/1BuJev8 Judge Winslow spoke into the record at that time indicating the existence of Brady evidence (called so because of Brady v Maryland) in the files, or in other words, evidence that could demonstrate Friedman’s innocence. Knowing this, the DA’s appeal of that order to the New York State Appellate Court seems in line with their all out effort to keep the Friedman defense team from gaining access to the information to which every defendant is entitled.

Police detectives in Nassau County interviewed a hundred children who attended computer classes in the Friedman home in the mid 1980s. Most said absolutely nothing happened in those classes. In fact, parents of many of the children visited the classes and picked their children up and have stated that they saw or heard nothing of the allegation that hundreds of rapes and sexual assaults took place.

As we continue to prep for our upcoming actual innocence hearing, we have over 30 eyewitnesses to the computer classes who have stated that they saw no wrongdoing, and five of the 14 students, who allegedly made incriminating statement to detectives, have now recanted.

Seeing the Nassau County DA’s office fighting in the appellate court to keep the files on the Friedman case closed and fighting in the criminal court to block the Friedman team’s right to discovery and subpoena power makes us wonder, what are they so afraid of? What’s in those files that has them fighting so hard to keep them out of the light of day, and, without discovery or the ability to subpoena witnesses, we wonder whose idea of a fair trial this is. Certainly not ours.

Bruce Green, noted ethics scholar, files opinion on Corrigan recusal

Judge Teresa Corrigan, sitting in judgment in Jesse Friedman’s Actual Innocence hearing soon to begin in Nassau County Court, has so far refused to recuse herself from the case, despite her close ties to those in the Nassau County DA’s office who have vigorously and unethically opposed Friedman’s 27 year bid to overturn his wrongful conviction.

Adding to the chorus of those who believe Judge Corrigan cannot be impartial is noted ethics scholar Bruce A. Green (see his CV, including an extensive bibliography of his publications on ethics at the end of the statement here ) who filed an ethics opinion with the court. In his statement, Green said that Corrigan’s “impartiality might reasonably be questioned.”

Bruce Green is one of the country’s leading experts on judicial ethics and Director of the Stein Center for Law and Ethics at Fordham University School of Law, and he has called on Judge Teresa Corrigan to be recused from sitting on the case, citing the close association of the judge with four key players in Friedman case.

Professor Green’s affirmation lists the materials on which he based his opinion: the August 2014 motion to recuse, the October opposition to that motion, the Conviction Integrity Report (“Rice Report) and Ron Kuby’s affidavit in support of Jesse’s renewed recusal motion.

Green points out that not only should judges work free from bias, but they also must avoid the *appearance* of bias or favoritism. As we’ve maintained since she was appointed, Judge Corrigan’s involvement in the Friedman case raises a number of serious questions, and, as Green further states, the combined circumstances of her close association with Kathleen Rice (who hired her), Meg Reiss, Charles Ribando (she reported to both Reiss and Ribando) and Joseph Onorato (whom she supervised) are relevant to the appearance of bias or favoritism. In addition to the working relationships the four shared, three out of the four were financial contributors to her campaign, Meg Reiss was the largest contributor, and Rice and Ribando are co-defendants in a lawsuit dealing with limits of prosecutorial immunity (Sanseviro v State of New York).

You may remember that in October of 2014, Judge Corrigan refused to recuse herself prompting us to file the second recusal request with the court.

Update February 12, 2015: Oral Arguments in the Appellate Division

“… Should we put our blinders on?”  Justice Priscilla Hall

This question from Justice Hall resonated as one of the takeaways from the oral arguments presented on Tuesday in Brooklyn.  She was speaking to Robert Schwartz of the Nassau County DA’s office and asking what  should be done when asked to consider FOIL disclosures that may or may not arise in an actual innocence hearing. DA Schwartz replied that it would depend on the individual case, but in our case it’s important that the panel be able to have access to and fully consider any and all information contained in the files that have been kept sealed by the DA for 27 years.

Representatives from both sides met at the Appellate Court, Second Department before the panel of four justices.  Schwartz tried to contend that Nassau County Supreme Court  Judge F. Dana Winslow’s order to turn over “every piece of paper” in the 17,000+ pages of documents from the Friedman case files should be overturned.  Friedman lawyer Ron Kuby presented a forceful counter argument saying the information was crucial because Judge Winslow had found “substantial differences from detective to detective” in the statements of the complaining witnesses and that an “evolution of statements” from each witness was necessary to show how detectives coerced statements.

In Judge Winslow’s ruling ordering the DA to turn over these materials, he stated that there was significant evidence withheld that would fall under Brady v. Maryland (evidence that could demonstrate Friedman’s innocence) and that all of the witness statements that allegedly came from children had actually been written by detectives.  He further noted there were “glaring discrepancies” in the statements and other materials being withheld by the DA’s office.  Judge Winslow is the only person outside of the Nassau County DA’s office to ever see the case file, or parts of it.

Why would the affirmation of Winslow’s ruling be in the public interest? Because no one accused of a crime should be coerced into pleading guilty based on testimony shaped and developed by law enforcement and the prosecution. In an article on wrongful conviction in the August 4, 2014 issue of the New Yorker, University of Chicago law professor Craig Futterman put it this way, “If you have a proven instance where an officer lied to put an innocent person in jail, it calls into question all the other cases in which his [her]  word has been a primary source of information.”

Justice Leventhal brought up the Garner case, now being argued in Staten Island, in the context of case files being opened to access grand jury transcripts. While DA Schwartz argued the case should not figure in the panel’s decision, it is clear that the law is rapidly evolving as a result of increased awareness of wrongful conviction, and that historical secrecy of essential evidence must be reconsidered.

Jesse Friedman and Ron Kuby speak to reporters after oral arguments on February 10.
Jesse Friedman and Ron Kuby speak to reporters after oral arguments February 10.

 

Update February 3, 2015: Ordered to turn over Friedman Records, the Nassau County DA is STILL Trying to Hide the Truth

 

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 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 F. Dana Winslow ordering the opening        of the case files in Friedman’s case

These may have been the kindest words Jesse Friedman has heard in the 27 years since he was wrongfully convicted of sexually abusing dozens of children in his Great Neck, Long Island home, in the last of the mass sexual abuse hysteria cases yet to be overturned.

Finally, a judge who had seen the grand jury minutes, read the children’s statements, reviewed the evidence against Jesse held under wraps for decades, felt so compelled by what he saw that he ordered that all the files be turned over to Friedman’s defense. After holding multiple hearings on the issue, Nassau County Supreme Court Justice F. Dana Winslow expressed his grave concerns about the exculpatory nature of the materials withheld from Friedman, and ordered the disclosure of  every piece of paper.”

Perhaps conveying distrust of the DA’s office, Winslow made it clear he did not want anything to happen to those files. “It is hereby ordered that the District Attorney of Nassau County provide all documents, records of all kinds including the Grand Jury minutes, redacting only the names of the complaining witnesses. During such time, no document of any kind may be moved, re-filed or in any way handled, touched by anyone in the District Attorney’s Office.”

At the heart of the oral arguments scheduled for February 10, 2015, is Friedman’s motion to affirm Winslow’s ruling. The press and public are invited to attend in the Appellate Court, Second Department, located at 45 Monroe Place, Brooklyn. NY at 10 am. The Nassau County District Attorney is refusing to adhere to the court order to turn over the files and is appealing to the Appellate Court to assist them in continuing to hide behind the deception that Jesse Friedman is guilty. It is time to get at the truth of this case; Jesse Friedman is innocent.

Update January 20, 2015: Is the Nassau County DA Hiding Evidence?

In the first court appearance before Nassau County Judge Teresa Corrigan in Jesse Friedman’s actual innocence hearing, held on Tuesday, January 13, 2015, questions were raised concerning whether the Nassau County District Attorney is trying to prevent access to the record of the exact counts to which Friedman  pled guilty. The DA has admitted that they have no record of Friedman’s actual guilty plea.

Friedman’s attorney Ron Kuby said it was outrageous that the District Attorney’s office does not have the complete record of a case they allegedly “fully reviewed” for three years. He told Judge Corrigan that, ”such a record is a starting point, and key in an upcoming innocence claim hearing because Friedman only has to prove his innocence to the counts he was convicted of.”

Court observers say it is highly unusual that the District Attorney would have no record of exactly to what charges Friedman pled. Is this another example of the Nassau DA hiding evidence or trying to interfere with the course of justice by preventing access to information?

This is the very reason Nassau Supreme Court Justice F. Dana Winslow, in a related legal proceeding over access to Friedman’s investigatory files in August 2013, ordered the Nassau County DA to turn over “every piece of paper” in their files to Friedman’s defense.

 Justice F. Dana Winslow said that he was granting Friedman’s request for the records under the Freedom of Information Law in part because of the public’s need to have confidence in how prosecutors and other public officials carry out their duties. Asked by prosecutors to specify what information was covered by his ruling, he replied that, with the exception of the victims’ names, “Every piece of paper you have generated for People against Friedman.”

In a three-year review of Friedman’s innocence completed in 2013, it was revealed that the Nassau DA withheld important evidence from an advisory panel headed by the founder of the Innocence Project, Barry Scheck, which had responsibility to reinvestigate the Friedman case. Those actions led Scheck to file an affidavit with Judge Corrigan asking for a full and transparent evidentiary hearing.

The question remains: Is it possible for Judge Teresa Corrigan to hold such a hearing? We think not!

Lonnie Soury