Just a truly amazing opinion from the Second Circuit today. A couple of weeks ago, I criticized the court for only giving lip service to innocence claims. Well, shame on me. Today's opinion shows just how far the court will go when it believes that there has been an unjust conviction. Although the court does not grant habeas relief, the court goes out of its way to thoroughly question the reliability of the evidence against petitioner and calls upon both the state courts and the prosecutor to re-examine the conviction. Truly amazing.
The case is Friedman v. Rehal and it's available here. The opinion was written by DJ Korman (sitting by designation) and joined by Raggi and Pooler. Raggi added a brief concurrence, which I'll discuss below.
Petitioner is Jesse Friedman, whose case was made famous in the great documentary Capturing the Friedmans, which documents the child abuse cases brought against petitioner and his father. The movie goes into detail about the investigation into the case, which included a bunch of questionable investigatory techniques devised to obtain statements from the child victims.
However, the People never turned over this information about the investigation to petitioner. After watching the movie, petitioner raised a Brady claim. After losing in state court, the district judge dismissed the petition as untimely.
The Second Circuit agrees, showing that petitioner filed the petition three months out of time. The court also goes on to address the underlying merits of the Brady claim and concludes that the investigatory techniques are really impeachment material and the failure to turn it over does not qualify as a Brady violation when the defendant pleads guilty -- as petitioner did here. Additionally, the court believes that the Brady claim itself does not rely on clearly established law.
But the Second Circuit does not end the opinion there. Here's what the court says: "While the law may require us to deny relief in this case, it does not compel us to do so without voicing some concern regarding the process by which the petitioner’s conviction was obtained." The court then engaged in a lengthy discussion about the problems with the evidence.
At the end of this discussion, the court expresses a deep concern about the conviction:
As such, this case is unlike other appeals which raise concerns about the quality of the
evidence and the guilt of the defendant. In those appeals, we defer to the judgment of the jury after the defendant has received a fair trial. We take comfort in “[t]he established safeguards of the Anglo-American legal system [which] leave the veracity of a witness to be tested by crossexamination, and the credibility of his testimony to be determined by a properly instructed jury.” Hoffa v. United States, 385 U.S. 293, 311 (1966). In this case, the quality of the evidence was extraordinarily suspect and never subjected to vigorous cross-examination or the judgment of a properly instructed jury.
The court notes, though, that, whether or not there exists a federal stand alone claim of actual innocence, that type of claim was not exhausted in state court, so it can't be addressed now.
And then here is where the opinion turns extraordinary. The court suggests to both the state courts and the prosecution that it do something to re-examine what it believes to be a very likely wrongful conviction.
First, the court notes that an actual innocence claim may be available to petitioner in state court. It adds, "Considering the facts of the case and the circumstances that caused him to plead guilty, this case may be one in which the New York courts may be particularly sympathetic to a proceeding seeking such relief." Pretty strong suggestion there.
Next, the court turns to the prosecution and implores it to re-examine the case. I am going to quote the entire part of this opinion because it is really amazing:
The focus on the impediment to legal relief, however, should not obscure the continuing ethical obligation of the District Attorney to seek justice. We refer here especially to New York Rules of Professional Conduct 3.8, Comment 6B, which explains that “[t]he prosecutor’s duty to seek justice has traditionally been understood not only to require the prosecutor to take precautions to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted.” N.Y. Rules Prof’l Conduct 3.8, cmt. 6B. In language particularly pertinent here, the Comment goes on to say:
[W]hen a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the prosecutor should examine the evidence and undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful. The scope of the inquiry will depend on the circumstances. In some cases, the prosecutor may recognize the need to reinvestigate the underlying case; in others, it may be appropriate to await development of the record in collateral proceedings initiated by the defendant. The nature of the inquiry or investigation should be such as to provide a “reasonable belief” . . . that the conviction should or should not be set aside. Id.
The record here suggests “a reasonable likelihood” that Jesse Friedman was wrongfully convicted. The “new and material evidence” in this case is the post-conviction consensus within the social science community that suggestive memory recovery tactics can create false memories and that aggressive investigation techniques like those employed in petitioner’s case can induce false reports. Indeed, it is not even clear from the record that Assistant District Attorney Onorato was aware of the suggestive questioning techniques that were used by the Nassau County police. More importantly, the record does not speak to whether the then–District Attorney of Nassau County whose principal role was administering and overseeing the activities of one of the largest such offices in the United States,11 was aware of the techniques used by the Nassau County detectives, who were not members of his staff.
Only a reinvestigation of the underlying case or the development of a complete record in a collateral proceeding can provide a basis for determining whether petitioner’s conviction should be set aside. We hope that, even if she continues to oppose relief in collateral legal proceedings, the current Nassau County District Attorney, who was not responsible for the investigation and prosecution of Jesse Friedman, will undertake the kind of complete review of the underlying case suggested in the Comment to Rule 3.8.
In her concurrence, Raggi questions whether the court should have engaged in the length discussion of the underlying facts in which it assumed the truth of the allegations against the police. While she believes that further inquiry by the prosecution may be warranted, she is not ready to state that such an inquiry would be favorable to petitioner.
In the final section of the main opinion, the majority responded to the concurrence and explains why it engages in the lengthy discussion of the facts. I am not sure I find the reason entirely persuasive. Generally, the court says that it was done to try and convince the prosecutor to engage in the investigation despite the guilty plea. Hmm. It's not that I wouldn't want a court to do that. But it does raise interesting questions about the purpose of a judicial opinion. It's actually a great existential judicial-opinion-writing question. The court kind of answers that question with its final line, which I'll quote here:
In sum, an appellate court faced with a record that raises serious issues as to the guilt of the defendant and the means by which his conviction was procured, yet unable to grant relief, is not obligated to become a silent accomplice to what may be an injustice.
A great ending to a truly remarkable opinion.