When the Oscar-nominated film, “Capturing the Friedmans,” was released in 2003, it provided as much hope as a convicted child molester could ask for.  The witch hunt days of the 1980s were past, and perhaps people were ready to recognize that police-manipulated child testimony and a coerced plea at a time of hysteria could put an innocent father and son in prison.

By this time, the son, Jesse, was out  of prison. His father, Arnold, had taken his own life in 1995 while still inside.  Yet, Jesse remained branded as a level 3 sex offender and the Friedman family tainted with horrific crimes.  While the documentary may have raised consciousness as to their potential innocence, vindication had yet to be achieved. A habeas on appeal before the Second Circuit failed to obtain reversal, but it did push the Nassau County prosecutor to review the conviction:

“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.

D.A. Kathleen Rice, who came into office after the Friedmans were convicted, responded by putting together a blue ribbon panel to conduct a conviction integrity review.  On the panel was the Angel of Innocence, Barry Scheck. One year ago today, Rice released the panel’s 155 pqge report:

Report: “Jesse Friedman Was Not Wrongfully Convicted”

Independent advisory panel says that the Review Team was “prepared to recommend without reservation that Friedman’s conviction be overturned. But that was not how the facts played out…”

“…by any impartial analysis, the re-investigation process…has only increased confidence in the integrity of Jesse Friedman’s guilty plea and adjudication as a sex offender.”

When Barry Scheck says the conviction was solid, you’re guilty as sin.   But as former NYLJ reporter Dan Wise wrote, a post-conviction motion just filed by Ron Kuby on behalf of Jesse Friedman included an affirmation by Barry that may change everything.

There is a stark difference between the content and tenor of the June 25, 2013 document, and the affirmation Scheck submitted this morning, in which he “urge[d] the court to accord Mr. Friedman a full evidentiary hearing on the merits of his claims.”

In breaking with the conclusion of the other three advisory panel members, Scheck states that it would be “desirable” to review, among other documents, materials not available to Advisory panel such as grand jury minutes, the original case file …”

Wait. So the conviction integrity review panel that concluded its investigation by stating that its reinvestigation “has only increased confidence in the integrity of Jesse Friedman’s” conviction never reviewed the grand jury minutes, prosecution’s case file or police reports provided the defense?  That’s what is set forth in the new Barry Scheck affirmation.

4. Ordinarily, following best practices in a Conviction Integrity Review it is desirable to have substantial disclosure ofthe prosecution’s file, grand jury minutes, and police reports to the defense and materials from the petitioner provided to the prosecutor pursuant to non-disclosure agreements. For reasons we discussed in the Advisory Panel Statement given the nature of this case, the District Attorney made the decision not to release such materials to the defense.

5. Members of the Advisory Panel did not interview witnesses, except, under limited circumstances, Ross Goldstein and Jesse Friedman, nor did we personally review grand jury minutes or the District Attorney’s file. The Advisory Panel did not make credibility determinations. Such determinations were the exclusive province of the District Attorney.

Despite having neglected to look at the very areas rife with potential for error, manipulation, concealment and malfeasance, this panel of angels nonetheless pronounced Jesse Friedman guilty?  And with the halo effect of Barry Scheck’s seal of approval, who could question its conclusion.  When Barry Scheck says the conviction was solid, you’re guilty as sin.

In the interim between the report and the filing of the 440 motion, Nassau County Judge Dana Winslow ordered Rice to disclose everything to the defense,

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.”

[Edit] This would have put the evidence that had never seen the light of day in 26 years into Kuby’s hands, but the Winslow’s order was stayed pending appeal, and is awaiting oral argument. This didn’t stop Kuby from pushing forward, which apparently was sufficient to give Scheck pause to reconsider his earlier condemnation.

6. I have now read the post-conviction application submitted by counsel for Jesse Friedman, and have had the opportunity to review some of the evidence on which those claims are based. The defense raises very specific claims that there are a number of serious substantive errors in the Rice Report. The parties to this litigation have drawn starkly different conclusions about the credibility of witnesses who did come forward

7. 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 reinvestigation to aid in finally resolving, to the extent it is possible, the issue of Jesse Friedman’s guilt or innocence.

By flipping from his prior “guilty, guilty, guilty” position to worthy of review, even though he takes no position on innocence, Scheck opens a crack in the door he personally helped to slam shut a year ago.

But the question how he, together with the other three members of the Conviction Integrity Review Panel, could have issued a report condemning Friedman as guilty in the absence of what appears to be anything more than a cursory investigation, relying on the District Attorney’s office for all credibility determinations — the very core of the claim of innocence —  and knowingly denied access to critical evidence.  Why didn’t the panel conclude that their investigation was stymied by the District Attorney’s refusal to cooperate, denial of access, concealment of critical materials?

Nope, that’s not what the panel, blinded with Barry Scheck’s halo, concluded.  And now he’s flip-flopped, at least a little bit.  It’s not that Barry Scheck isn’t entitled to make a mistake. He’s human, no matter how much you adore the Innocence Project. And it shows his integrity to revisit his conclusions and question whether his clear, affirmative position was wrong.

But how this could have happened in the first place remains unanswered.* If innocence review is no more credible than the initial conviction, then it’s just crap bolstering more crap.  But when it’s Barry Scheck putting his seal of approval on a conviction, it’s the best smelling crap you’re ever going to see.

Maybe this time, Ron Kuby will finally get a full and fair chance to pull back the curtains on Jesse Friedman’s conviction without the view clouded by moral hysteria, but the shadow of Scheck’s report still blocks the light, because when Barry Scheck says the conviction was solid, you’re guilty as sin. 

*  I sent Barry an email last evening, but haven’t heard back from him.  My understanding from Kuby is that Barry is letting his affirmation do the talking.

Update:  Barry Scheck just got back to me with this explanation:

Read advisory panel statement. We said they acted in good faith, made a reasonable judgment not to empanel grand jury and subpoena reluctant witnesses, and we were not judging credibility of witnesses or finding facts. Our role was to advise on process. My affirmation now is limited and merely calls for a hearing. Not inconsistent

I don’t question Barry’s good faith at all, but yet the forcefulness of the panel’s promoted conclusion, that its review “only increased its confidence in the integrity of Jesse Friedman’s guilty plea and adjudication as a sex offender” remains hard to reconcile. Perhaps the dissonance comes from the use to which the panel report was put by Rice rather than the report itself.  Perhaps innocence review is just treacherous ground.