E-Mail This Article to a Friend Picture of injustice (continued) BY HARVEY SILVERGLATE

ARNOLD FRIEDMAN was a pedophile. He collected kiddie porn and had an erotic attraction to pre- and early-pubescent boys. After he was arrested, he confessed to having had inappropriate sexual contact with two boys during family summer vacations. (As will become clear later, however, this confession may be false.) Friedman hid all this from his wife, Elaine, and their three boys, David, Seth, and Jesse, with whom he lived a comfortable, conventional middle-class existence in tony Great Neck, New York.

Arnold’s pedophilia came to light after he ordered a pornographic magazine published in the Netherlands. It was intercepted by postal inspectors at John F. Kennedy airport. The magazine was not immediately delivered to Arnold, but instead postal inspectors then began a three-year sting operation to get Arnold, a small-time collector of such porn, to mail something from his collection to a postal inspector posing as a fellow porn collector. Doing so, of course, would break federal law. In 1987, when Arnold finally did, federal authorities, under cover of a search warrant, raided the house, where they found behind Arnold’s piano a stack of pornographic magazines featuring children. They also found a list of the names of boys to whom Arnold, with the help of his youngest son, Jesse, gave computer lessons in the family’s basement. The feds informed Great Neck police about Arnold and warned that these students might be victims of abuse.

Police visited the boys and their families. Despite the lack of a single prior complaint or even a hint that abuse had arisen earlier — and in the total absence of any physical or medical evidence of abuse — the police suddenly elicited tales of oral and anal sodomy committed by both Arnold and Jesse. Jarecki’s film includes interviews of some of the then-preteen witnesses whose allegations resulted in scores of charges against Arnold and Jesse, any one of which could have resulted in a lengthy prison term upon conviction. When Jarecki reinterviewed some of these "victims," only one, a man who admits that he was hypnotized in order to "recall" the abuse, sticks by his story. The rest explain that they told police what they wanted to hear just to rid themselves of the pressure to give the police something — anything — on Arnold or Jesse Friedman.

In his interviews with the police and prosecutors involved in the case, Jarecki fails to ask obvious questions. For instance, Detective Frances Galasso, who headed the investigation and is now retired, tells Jarecki that "foot-high stacks" of child pornography were found all over the Friedman house. In fact, as later video demonstrates, there was only a single pile of porn discreetly hidden behind the piano. Why wasn’t the detective confronted with this inconsistency? Galasso also tells Jarecki that police didn’t push for physical evidence of the rapes because such medical examinations would have been invasive and "none of the parents wanted that." The prosecutor, Nassau County assistant district attorney Joseph Onorato, explains to Jarecki that in cases of child rape, New York law allows convictions merely on the basis of the victims’ testimony and without physical corroboration. Jarecki does not ask why this is acceptable, even if technically legal, when the defendants face such draconian sentences. He also fails to ask why no physical evidence — not one bit — was ever found to corroborate the fantastic stories of abuse. One of the pre- and early-teen students claimed to have been raped 30 times during the first 10-week course, and that he then enrolled for the advanced course and was raped 41 more times. Think about it. A child’s anus isn’t designed to accommodate an adult penis; presumably, a series of multiple rapes would have produced some physical signs of forced penetration. Surely such a series of forced rapes would have produced changes in the child’s behavior that would have aroused parental suspicion.

While it’s true that the sophisticated viewer could put two and two together from the video clips shown, the film would have been much more powerful — and responsible — if Jarecki had put the obvious (and not necessarily tough) questions to police and prosecutors. It would have been interesting, to say the least, to watch them react when faced with evidence that the prosecutions were concocted out of stories of abuse prompted by inept questioning. While one detective makes clear the need to avoid suggestive questions that tell suspected victims what they should say, another detective describes a series of questions posed to victims that virtually put words into the children’s mouths.

This is bad enough. But it’s horrendous when you consider what Jarecki leaves out of the film. Abbey Boklan is the judge responsible for this monstrous miscarriage of justice. She appears onscreen to assure the audience: "There was never a doubt in my mind as to their guilt." She does not explain the source of her certainty, since there was, after all, no trial and no opportunity for the defendants to confront their accusers and for the defense lawyers to cross-examine them. Jarecki could have inquired whether Boklan’s certainty may have derived from her prior history and experience as a sex-crimes prosecutor, but she is left off the hook. (Which raises the question: did Boklan ever use the same faulty and irresponsible techniques to elicit testimony from victims?)

But that’s just the tip of what Jarecki leaves out of the film. Debbie Nathan reports that in 1990, she happened upon a paper that had been presented at a conference by Dr. David Pelcovitz, chief of child and adolescent psychology at Long Island’s North Shore University Hospital. The paper, titled "Group Therapy and Hypnosis for Victims of Child Pornography and Extrafamilial Sexual Abuse," disclosed that many of the child victim-witnesses in the Friedman case had no recollection of sexual abuse at the hands of the Friedmans, and that Dr. Pelcovitz had to provide them with the details, and in some cases hypnotize them, to refresh their memories. Nathan mentions this in the film, but no one on the prosecution team is confronted by it. Then there is the transcript of an interview, discovered while the film was being researched, in which a computer-class student who tells detectives that nothing untoward happened is in turn warned that unless he discloses the abuse, he’ll grow up "gay."

Despite all this, Capturing the Friedmans, under Jarecki’s direction, maintains a studiously ambiguous stand regarding the truth of the case.

THE MOST HONEST thing Jarecki does in Capturing the Friedmans is to make it clear that Arnold decided to forego a trial and plead guilty as part of a legal strategy to take the prosecutorial heat off his son Jesse. Both Arnold and Jesse suddenly claimed that the father abused the son years earlier. It’s not clear who initiated this strategy, but the defense attorneys involved were fully on board with it — despite the fact that the defendants had been denying that any crimes had taken place up until the 11th hour, and then suddenly changed their stories in order to save Jesse. Jesse’s attorney, Peter Panaro, tells Jarecki that he could not ethically have participated in Jesse’s pleading guilty and telling the judge that Jesse’s father had abused him if Jesse had not changed his story and told Panaro that he could admit to this. Panaro is not pressed by Jarecki as to whether Jesse mouthed the magic words to Panaro just to assuage the lawyer’s ethical qualms and thereby allow the phony guilty plea to proceed. It’s also evident in the film that Elaine put heavy pressure on Arnold to go along with the strategy in order to save Jesse.

Unfortunately, Arnold pleaded guilty without even making a deal to cut Jesse loose (this seems like a lapse on the part of the Friedmans’ lawyers, although there may have been extenuating circumstances). So, after Arnold received what turned out to be a life sentence (he committed suicide in prison, leaving Jesse the proceeds of his life-insurance policy), Jesse still faced the mountain of charges. To make matters worse, Jesse faced a trial as the son — and teaching assistant — of a man who had admitted, in a highly publicized case, to multiple acts of child sex abuse in his basement while giving computer lessons to his young male students. This, along with the poisonous pretrial publicity, would have made it virtually impossible to select an impartial jury. Worse yet, Jesse was up against a grossly stacked deck in terms of the sheer number of charges. A conviction on any one or two of them would have meant he could be sentenced to spend most, if not all, of the rest of his life in prison.

At this point, someone came up with the "bullshit pact" designed to save Jesse. Jesse says that Panaro devised the plan. Panaro shifts the blame to others, but also claims still to believe Jesse’s confession — or at least to feel ethically comfortable with it, since it came from his client’s mouth. In reality, this is precisely the kind of plan that all too often passes for a "legal strategy" in serious cases, when the enormous pressures placed on defendants make truth less relevant than survival. Indeed, such strategies are sufficiently common that those involved in the criminal-justice system came up with the "bullshit pact" term. Essentially, defendants — who understand what they must say to have their guilty pleas accepted — go through their lines like professional actors. One can never be certain when defense lawyers, prosecutors, and judges realize that they are being fed false stories, when they simply suspect it, or when they have passively or even actively participated in eliciting and even crafting the statements. Every participant in the drama has his or her own reasons for wanting the play to proceed according to the script. Truth plays second fiddle to preserving the necessary illusion.

In the Friedmans’ case, the plan was that Arnold would "admit" to sexually abusing his son Jesse at a young age. Jesse would plead guilty, but Panaro would argue that Jesse was more victim than victimizer — just another victim of his predator father. This supposedly would appeal to the mercy of Judge Boklan, who presumably would let Jesse off with something less than a life-wrecking prison sentence. But the strategy didn’t quite work. She sentenced him to a harsh six to 18 years. After serving 13 years, he was paroled in 2001 — seven years after his eligibility date, because he refused to kowtow to the prison and parole authorities by reiterating his "guilt" during the required sex-offender classes. Jesse remains under stringent parole conditions: he cannot wander from his apartment without an electronic ankle bracelet, nor live in a building with children, and he has a strict curfew. He won’t be fully free until 2007, and even then, he’ll have to register as a sex offender for the rest of his life. (See "Capturing the Truth," News and Features, July 11.)

In the real world, holding a relative hostage as a means of forcing someone — guilty or not — to plead guilty to a charge would be deemed hostage-taking and extortion, a serious felony. Yet prosecutors routinely get away with such tactics. In Friedmans, the prosecutors appear not to have offered the son a deal if his father would take the rap; this time, the idea seems to have emanated from the defense camp, along with the concocted claim of the father’s abuse of the son. Any system that has endowed police and prosecutors with such near-absolute powers that defendants are pressed to admit to "crimes" that never happened cannot really call itself a system of justice. Yet that is precisely where our imbalanced criminal-justice system has taken us. The Friedman case simply offers an extreme example of the phenomenon — extreme both in its seriousness and in the obviousness of the defendants’ innocence.

I must applaud Andrew Jarecki for making a brilliant movie — a startling and important study of the disintegration of a family under a Kafkaesque assault too horrible for most of us to imagine. As an exploration of the truth, however, the film’s studied ambiguity toward the Friedmans’ guilt makes it a glaring failure. If I were a film critic, I probably would have been kinder to the director. However, as a defense attorney, I’ve seen too many of these cases to be uncritically sympathetic to the claims of artistic license — much less to the demands of smart marketing.

Harvey Silverglate, a regular "Freedom Watch" contributor, is a criminal-defense and civil-liberties lawyer in Boston and Cambridge. The author thanks his research assistant, Carl Takei, for helping in the preparation of this piece.