EDWARD R. KORMAN, District Judge:
This is an appeal from the denial of a writ of habeas corpus in a case in which petitioner who pled guilty seeks habeas corpus relief on the ground that exculpatory evidence was withheld from him. Because his petition was not filed timely, he also argues that his failure to do so should be excused on the ground that he is actually innocent. We affirm the judgment of the United States District Court for the Eastern District of New York (Seybert, J.) denying the writ without reaching the latter issues, because we conclude that the grounds asserted in the petition would not justify habeas corpus relief.
We summarize below the facts as alleged in the petition, as well as the affidavits and supporting materials, including the transcript used in the documentary film Capturing the Friedmans, and the memoranda of interviews taken in preparation for the film. These materials, some of which were also filed as part of the record in petitioner's post-judgment motion in the Nassau County Court, are included as part of the record in the district court. The District Attorney's submission
A. The Investigation
In 1982, Arnold Friedman, a retired school teacher, began teaching computer classes to children in his family's home in Great Neck, New York. In September 1984, Arnold asked petitioner, Jesse Friedman, the youngest of his three sons, to assist him in teaching classes. Petitioner was fifteen years old, and in tenth grade, at the time. Petitioner continued to assist his father until September 1987, when he left to attend college.
After a customs agent intercepted a package containing child pornography addressed to Arnold Friedman, federal agents obtained a search warrant and executed a search of the Friedman home. During the search, they seized a list of names and phone numbers of eighty-one students enrolled in Arnold Friedman's computer classes. Subsequently, Detective Sergeant Fran Galasso, head of the Nassau County Police Department's Sex Crime Unit, sent out two-detective teams to interview students who were currently or formerly enrolled in Arnold Friedman's computer classes about possible abuse.
On November 25, 1987, Arnold Friedman and petitioner were arrested on a felony complaint alleging child sexual abuse. Between December 1987 and November 1988, petitioner was charged with two hundred and forty-three counts of sexual abuse in three separate indictments and arraigned in the County Court, Nassau County (Boklan, J.). The indictments originally included allegations from fourteen complainants, all male children ranging in age from eight to twelve years old. Prosecutors had no physical evidence and relied entirely on allegations made by computer students after being questioned by Nassau County detectives. No student had ever complained of abuse, nor had any parent ever observed suspicious behavior, prior to the investigation. Indeed, Assistant District Attorney Onorato acknowledged that "there was a dearth of physical evidence." [Capturing the Friedmans Tr. 36, A-316.] Nor was this what he described as "the best case scenario," where "you would like to find videotapes of Mr. Friedman actually sexually abusing the children or at the very least some photographs of some of the children in sort of compromising sexual positions." Onorato admits that "[w]e didn't find any of that." [Jarecki Aff. ¶ 10 (quoting "DVD Extra Material"), A-429.]
The Nassau County Police Department never produced transcripts, recordings, or videotapes of the student interviews that preceded the indictments. Moreover, because Arnold Friedman and petitioner ultimately pled guilty, the circumstances surrounding the interviews were not explored at trial. Some former students and their parents, however, recall with great consistency that detectives employed aggressive and suggestive questioning techniques to gain statements from children who had attended Arnold Friedman's computer classes. Detectives generally entered an interview with a presumption that a child had been abused and refused to accept denials of abuse. If a child denied being the victim of abuse on a first visit, detectives would often visit the child repeatedly for followup interviews, each lasting as long as four hours, until the child admitted abuse. In one case, detectives visited a child fifteen times and assured the child's mother before the final visit that they were going to stay "as long as it takes." [Kuhn Aff. ¶ 10, A-530.]
Likewise, detectives often insisted that they knew that the child they were interviewing
[Brian Tilker Aff. ¶ 5, A-790.] This strategy was designed to force children to agree with the detectives' story. Detective Squeglia, who conducted many interviews in the case, explained in a recorded interview:
[Squeglia Tr., Capturing the Friedmans Interview, A-459.]
The detectives would reward cooperative children with "pizza parties" and police badges. When children did not admit to experiencing sexual abuse, however, detectives would persist in their questioning, sometimes taunting the children for failing to offer the desired answers. The tactics were so aggressive that several former students admit that they responded to them by falsely alleging instances of abuse. Although these children were aware that they were lying to the detectives, they ultimately surrendered to the pressure and "remembered" instances of abuse just to "get [the detectives] off [their] back[s]." [See Capturing the Friedmans Tr. 99, A-379; Brian Tilker Aff. ¶¶ 8-9, A-790.]
These questioning techniques were used in the police interview of Gary Meyers, a former computer student, which was secretly videotaped by his mother. The videotape portrayed detectives using hostile techniques, including suggestive and harassing questioning, while interrogating Meyers, who was then thirteen years old. Throughout the videotape, detectives pressured Meyers to admit that he was sexually abused. Nevertheless, Meyers maintained that he was never exposed to or witnessed any abuse. When Meyers refused to admit sexual abuse, a detective told Meyers's mother that he did not "like his answers" and referred to Meyers as a "wise guy." [See Meyers Tr., A-804.] At some point before the third indictment was handed down, either Arnold Friedman or petitioner informed petitioner's attorney, Peter Panaro, about the videotaped interview. Panaro claims that after viewing the videotape, he informed Assistant District Attorney Joe Onorato about it and requested that Onorato provide any evidence of similar "hostile" techniques employed during eyewitness interrogations. The prosecution did not turn over any evidence that detectives used similar techniques during other interviews.
As the detectives continued to aggressively pursue potential victims, the charges against petitioner expanded dramatically in both number and scope. While the first indictment included fifty-four counts, ten of which were against petitioner, the third indictment included three hundred and two counts, one hundred and ninety-eight of which were against petitioner. The allegations also grew increasingly bizarre, sadistic,
As the case expanded, members of the Nassau County District Attorney's office also began to speculate that a "sex ring" had been operating from the Friedman home and that other teenagers had been involved. Petitioner alleges that, through great pressure, the District Attorney was able to secure a cooperation agreement from an acquaintance of petitioner, Ross Goldstein, in exchange for a favorable plea agreement. Goldstein had until then vehemently denied any knowledge or involvement. Indeed, more than half of the charges against Goldstein were alleged to have taken place before the petitioner and Goldstein had even met. According to John Roe, who was one of two additional teenagers suspected of involvement in a "sex ring," Goldstein later admitted that he had falsely implicated others under "intense pressure from the police to come up with anything that seemed like cooperation." [Jarecki Aff. ¶ 12 (quoting "DVD Extra Material"), A-430.]
Due to the "nature of the charges" and the extent of allegations, "the community [was] in an uproar." [Richard Tilker Aff. ¶ 10, A-787.] The Parent-Teacher Association of Great Neck ("P.T.A.") sponsored letter writing campaigns and community meetings to reach out to former computer students and their families. In December 1987 and January 1988, Great Neck held two community meetings, sponsored by the school district and the P.T.A., designed to advise parents on the community resources available to deal with child abuse. See William S. Dobkin, Great Neck Community Marshals its Resources to Deal with Child Abuse and Child-Sex Crime, Great Neck Record, Feb. 4, 1988, at 5A. About fifty parents attended the first meeting and about three hundred parents attended the second meeting. Id. The meetings presented "expert advice" from such speakers as Detective Sergeant Fran Galasso, Assistant District Attorney Joe Onorato, id., and Dr. Sandra Kaplan, a therapist treating many of the alleged victims in the case. Id. The expert advice was simple: every former student should be considered a victim and should seek therapy immediately.
Parents of non-complainants recall "a tremendous amount of [social] pressure for children to join the case." [Richard Tilker Aff. ¶ 10, A-787.] When a child denied abuse, their parents were told that the child was "in denial." [See Capturing the Friedmans Tr. 38-39, A-318-19; Richard Tilker Aff. ¶¶ 9-10, A-786-87; Brian Tilker Aff. ¶ 10, A-791; Forrest Aff. ¶ 5, A-798.] Great Neck had defined itself as a "victimized community," and those who refused to define themselves as victims no longer "fit in[.]" [Capturing the Friedmans Tr. 38, A-318.]
Local newspapers published numerous stories with detailed allegations from the case and extensively covered the community's outreach programs. The P.T.A. organized car-pools to transport community members to court appearances. Despite the highly explosive nature of the charges, accompanied by what Judge Abbey Boklan, the presiding judge, described as a "media frenzy" [Jarecki Aff. ¶ 9 (quoting "DVD Extra Material," Capturing the Friedmans), A-429], Judge Boklan permitted the case to become the first in Nassau County in which cameras were allowed in the courtroom. As Judge Boklan explained, "It was something the community was very interested in, the media was very interested in.... I wasn't that
On March 25, 1988, Arnold Friedman pled guilty to forty-two counts of child sexual abuse, at least in part because he believed petitioner would have a better chance at a fair trial that way. Nevertheless, the plea had the opposite effect. Specifically, after Arnold Friedman pled guilty, he was compelled to give the police a "close-out" statement in which he was asked to confirm that he had molested each child on a list of students. He was told that he would be granted immunity if he confessed to misconduct, but that any child he declined to admit molesting could be the source of further charges against him. In response, Arnold Friedman admitted to molesting each child on the list. Detectives proceeded to share the close-out statement with families of non-complainants to elicit further accusations against petitioner and to discourage former students from publicly supporting petitioner or agreeing to testify on his behalf. Moreover, on June 24, 1988, Newsday, the newspaper with the largest circulation in Nassau County, published a story that disclosed that Arnold Friedman "identified about 80 [additional] boys he had sexually abused" in the close-out statement. [See Pet'r Aff. ¶ 29, A-157.]
B. Petitioner's Guilty Plea & Sentencing
Petitioner—who was then only nineteen years old—alleges that he faced enormous pressure to plead guilty. The motion he made for a change of venue had been denied. The leak described above significantly added to the already hostile atmosphere that made a fair trial impossible. The Nassau County District Attorney's office did everything it could to force petitioner to plead guilty. After the second indictment, for example, Assistant District Attorney Onorato advised petitioner's attorney, Panaro, that if petitioner refused to plead guilty his office would obtain a third indictment which would include "many more charges than both previous indictments combined, and those charges would be much more serious." [Panaro Aff. ¶ 5, A-762.] When petitioner declined to plead guilty, Onorato followed through with his threat. Petitioner was also aware that investigations were brewing against his two brothers and many of his high school friends, a threat which he took seriously in light of the growing magnitude of allegations.
Moreover, Judge Boklan acknowledged that "[t]here was never a doubt in [her] mind" as to petitioner's guilt. [Capturing the Friedmans Tr. 33, A-313], and even before she had heard any of the evidence she expressly informed Panaro that, if petitioner went to trial, she intended to sentence him consecutively on every count. Petitioner had until then strenuously resisted the efforts to coerce a plea and vehemently maintained his innocence. Panaro had also been convinced that petitioner was innocent:
[Panaro Aff. ¶ 19, A-766-67.]
Nevertheless, after Judge Boklan's threat, petitioner told Panaro that he wanted to plead guilty "because he believed that if he went to trial he would be found guilty and would spend almost the remainder of his life in jail." [Panaro Aff. ¶ 12, A-764.] Panaro told him that he "would not represent him on a guilty plea unless he was guilty and that [Panaro] could not ethically allow [petitioner] to plead guilty if he was maintaining his innocence to [Panaro]." [Panaro Aff. ¶ 12, A764.] In response to Panaro's erroneous insistence on an admission of guilt,
On December 20, 1988, petitioner pled guilty to Sodomy in the First Degree (seventeen counts), Use of a Child in a Sexual Performance (one count), Sexual Abuse in the First Degree (four counts), Attempting Sexual Abuse in the First Degree (one count), and Endangering the Welfare of a Minor (two counts), in full satisfaction of the three indictments filed against him. The minutes of the plea are not available.
A few weeks after petitioner pled guilty, he gave a televised interview to Geraldo Rivera in which he repeated his confession and the story that his father had sexually abused him. Petitioner explains that he confessed to Panaro only so that Panaro would permit him to plead guilty, and that he submitted to the television interview "in what [he] believed to be a last-ditch effort to obtain public sympathy and explain [him]self in some way." [Pet'r Aff. ¶ 40, A-161-62.] Specifically, he made up the story about his father molesting him as a child because he believed it might insulate him from attacks in prison and might persuade Judge Boklan to ask the parole board for leniency on his behalf.
While in prison, petitioner was denied parole four times apparently because he
C. Post-Conviction Proceedings
In 2000, documentary filmmaker Andrew Jarecki began a three-year investigation of Arnold Friedman and petitioner's story for his film, Capturing the Friedmans. Jarecki interviewed many individuals who were involved with the original criminal investigation of Arnold Friedman and petitioner, including former computer students, detectives, attorneys, and family members. Petitioner first viewed the completed film on January 10, 2003. The film's producers permitted petitioner to view the underlying documents and footage from the film in July 2003.
Through the film, petitioner claims to have discovered a large volume of information he had never seen before regarding tactics used by detectives and therapists to obtain accusations of abuse from some of the complainants. The film also depicted an anonymous student, described as the source of thirty-five sodomy counts, claiming he was subjected to hypnosis prior to recalling abuse. According to the anonymous student, whom the third indictment referred to as "Gregory Doe" [see Indictment 69783, A-96-103], he did not recall any sexual abuse until after he went through hypnosis: "I just remember that I went through hypnosis, came out, and it was in my mind" [Gregory Doe Tr. 28, A-692]. This former student's therapist, however, claims that "[a]t no time during this patient's treatment did [she] ever use hypnosis" [Parks Aff. ¶ 4, A-867], and Assistant District Attorney Onorato claims that he was unaware of any specific treatment undergone by any complainant. Petitioner argues that other evidence suggests hypnosis was used more broadly.
On January 7, 2004, petitioner filed a post-judgment motion in the County Court, Nassau County, seeking to vacate the December 20, 1988 judgment based on evidence he first discovered after watching Capturing the Friedmans on January 10, 2003. Petitioner argued that, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), he was entitled to the disclosure of the newly discovered information prior to the entry of his guilty plea. Relying on United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002), the Nassau County Court denied the petitioner's motion. On March 10, 2006, the Appellate Division denied petitioner's application for leave to appeal, at which point petitioner had exhausted his state remedies.
On June 23, 2006, petitioner filed a petition for a writ of habeas corpus in the Eastern District of New York. Petitioner argued that the film Capturing the Friedmans brought to light new evidence that (1) some eyewitnesses had initially denied sexual abuse, (2) detectives used interrogation methods known for eliciting false accusations, and (3) at least one suggestive memory recovery tactic—hypnosis—was used to induce memory recall by Gregory Doe before he made an accusation. Petitioner alleged that he would not have pled guilty if he had been aware of this undisclosed evidence.
The only claim petitioner presses on appeal is the Brady claim that the prosecution should have disclosed the use of hypnosis to induce complainants to recall instances of sexual abuse. We conclude that this claim is untimely. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a defendant has one year from the date his conviction becomes final to file a petition for habeas relief. Nevertheless, AEDPA provides several exceptions. Wims v. United States, 225 F.3d 186, 190 (2d Cir.2000). One such exception restarts the statute of limitations period from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D).
Petitioner invokes this factual predicate exception. Specifically, he alleges that he did not become aware of the relevant evidence until he viewed the film Capturing the Friedmans on January 10, 2003. Nevertheless, petitioner's Brady claim was untimely because, although he knew, or should have known through the exercise of due diligence, that the prosecution may have withheld the relevant information when or soon after he viewed the film on January 10, 2003, he failed to file a habeas petition within one year of that date. Instead, on January 7, 2004, three hundred and sixty-two days after petitioner first viewed Capturing the Friedmans, he filed a post-judgment motion to vacate his conviction. This ultimately unsuccessful effort to obtain relief ended on March 10, 2006, when the Appellate Division denied his application for leave to appeal. Petitioner then had three days remaining within the statutory period to file a writ of habeas corpus. Petitioner did not file the petition until June 23, 2006, more than three months late.
A claim of actual innocence could provide a basis for excusing this late filing even though petitioner pled guilty. See Doe v. Menefee, 391 F.3d 147, 161 (2d Cir.2004). While petitioner did not expressly raise such a claim, he argues that the allegations contained in the petition, along with evidence submitted in support of those allegations, were sufficient to alert the district judge to consider actual innocence as a basis for excusing his untimely filed petition. We need not resolve the issue here, however, because we conclude that, even if the petition is deemed to be timely, petitioner's Brady claim fails on the merits.
Under AEDPA, to prevail on a petition for a writ of habeas corpus, a petitioner confined pursuant to a state
In United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002), the Supreme Court reaffirmed its earlier holding that a defendant is entitled to information necessary to ensure that his plea is voluntary, and that any related waiver of his rights are made `knowing[ly], intellingent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences.'" Id. at 629, 122 S.Ct. 2450 (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)) (alterations in original). Nevertheless, because "impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary (`knowing,' `intelligent,' and `sufficient[ly] aware')," Ruiz, 536 U.S. at 629, 122 S.Ct. 2450 (emphasis in original), the Supreme Court held that the failure to disclose such information prior to a guilty plea does not violate the Due Process Clause. While the Supreme Court acknowledged that "the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be," it held that "the Constitution does not require the prosecutor to share all useful information with the defendant." Id.; cf. Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1480, 176 L.Ed.2d 284 (2010) (holding that because "deportation is an integral part ... of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes," defense counsel must apprise a pleading defendant of that consequence (footnote omitted)).
Petitioner characterizes the use of hypnosis as "exculpatory" evidence, a type of material Ruiz did not explicitly address. We disagree. The fact that hypnosis may have been used to stimulate memory recall and potentially induce false memories of abuse is a circumstance that would fit comfortably under the general understanding of impeachment evidence—evidence that "is offered to `discredit a witness ... to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] or [her] testimony.'" Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th
Even if hypnosis evidence comes within Brady's broader definition of exculpatory evidence, the petition must still be denied. Before Ruiz, in proceedings to which the AEDPA standard of review did not apply, we held that "[t]he government's obligation [under Brady] is pertinent not only to an accused's preparation for trial but also to his determination of whether or not to plead guilty." United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998).
We need not, however, address this issue here. It is enough to say that the holding of the Nassau County Court, consistent with prior holdings of the Appellate Division from which this case arises, see, e.g., People v. Day, 150 A.D.2d 595, 541 N.Y.S.2d 463, 467 (2d Dep't 1989),
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 magnitude of the allegations against petitioner must be viewed in the context of the late-1980's and early-1990's, a period in which allegations of outrageously bizarre and often ritualistic child abuse spread like wildfire across the country and garnered world-wide media attention. See, e.g., Susan Bandes, The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial and Due Process, 3 Law Culture & Human. 293, 294 (2007) (noting that the accusations against Arnold and Jesse Friedman arose at "a time at which concern about day care sexual abuse had reached a fever pitch both in the United States and abroad"). The media sensationalized these allegations, generating a national perception that sex rings were widespread and had infiltrated average communities. See, e.g., Devil Worship: Exposing Satan's Underground, Geraldo Rivera (NBC television broadcast Oct. 28, 1988).
Vast moral panic fueled a series of highly-questionable child sex abuse prosecutions.
Overall, at least seventy-two individuals were convicted in nearly a dozen major child sex abuse and satanic ritual prosecutions between 1984 and 1995, although almost all the convictions have since been reversed. See Gross, supra, at 540 & n. 40. Some defendants, fearing trial, pled guilty or "no contest" to impossible acts of ritualistic abuse, and in some cases they provided detailed confessions in exchange for immunity or generous plea bargains. See Debbie Nathan & Michael Snedeker, Satan's Silence: Ritual Abuse and the Making of a Modern American Witch Hunt 160-77 (1995). Many have described these widespread prosecutions as a modern-day "witch hunt." See generally, e.g., Richard Guilliatt, Talk of the Devil: Repressed Memories and the Ritual Abuse Witch-Hunt (1996); Nathan & Snedeker, supra; Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1994); Richard A. Gardner, Sex Abuse Hysteria: Salem Witch Trials Revisited (1992).
These prosecutions were largely based on memories that alleged victims "recovered" through suggestive memory recovery tactics, including those petitioner claims were used in this case. Indeed, the dramatic increase in conspiratorial charges of child sexual abuse has been traced to a relatively small group of clinical psychologists who supported the psychoanalytic notion of "repressed memories" and encouraged patients to employ extensive "memory recovery procedures" to "break through the barrier of repression and bring memories into conscious awareness." Loftus & Davis, supra, at 470-71, 483-86; see also Kamala London et al., Disclosure of Child Sexual Abuse: What Does the Research Tell Us About the Ways Children Tell?, 11 Psychol. Pub. Pol. & L. 194, 213 (2005). Popular memory recovery procedures included hypnosis, age regression, dream interpretation, guided abuse-related imagery, use of photographs to trigger memories, journaling, and interpretation of symptoms as implicit memories. Loftus & Davis, supra, at 483-84. These procedures and others commonly employed have great potential to induce false memories. See id. at 484. Hypnosis, for example, has been shown to produce bizarre and impossible memories, including memories of ritualistic satanic abuse, memories from early infancy, memories from past lives, and memories from the future. Id.; see also Rock v. Arkansas, 483 U.S. 44, 59-61, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Borawick v. Shay, 68 F.3d 597, 603-04 (2d Cir.1995). The prevailing view is that the vast majority of traumatic memories that are recovered through the use of suggestive recovery procedures are false, and that almost all— if not all—of the recovered memories of horrific abuse from the late-1980's and early-1990's were false. See id. at 477.
Moreover, many highly-publicized and large-scale investigations into alleged child abuse conspiracies were also accompanied by a variety of interviewing techniques designed to assist children in recalling abuse—techniques which an extensive body of research suggests can induce false reports. See, e.g., Sena Garven et al., More Than Suggestion: The Effect of Interviewing Techniques From the McMartin Preschool Case, 83 J. Applied Psychol. 347, 347 (1998). Garven et al. describes a "package" of techniques that, although based on a different highly-publicized
Scholars have suggested that each interviewing technique can induce false reports on its own. For example, they cite research which indicates that children often change their answer when asked the same question more than once during an interview, either because they assume that the first answer was incorrect or because they would like to please the adult interviewer. See Thomas D. Lyon, Applying Suggestibility Research to the Real World: The Case of Repeated Questions, 65 Law & Contemp. Probs. 97, 106 (2002). But the techniques have their greatest impact in combination. Garven et al. examined the effect of the "package" of techniques described above on false allegations of wrongdoing compared with suggestive questioning alone. See Garven et al., supra, at 350. They found that children exposed to the package of techniques falsely alleged wrongdoing over three times as often (58 percent of the time, compared to 17 percent of the time). Id. at 354. This error rate of nearly 60 percent occurred after less than five minutes of exposure to the combined techniques. Id. Though the study examined children who were somewhat younger than the complainants in petitioner's case, see id. at 350, the results are instructive as to the general dangers of suggestive interviewing techniques.
Finally, once individuals "recovered" memories of abuse or otherwise labeled themselves victims of abuse, they were generally encouraged to participate in various activities on an individual and community level to reinforce and develop existing memories of abuse. Loftus & Davis, supra, at 483. There, proponents of recovered memories advised alleged victims to expand on existing memories through suggestive memory recovery procedures (both in and out of therapy), participation in survivor groups, and solicitation of consistent information from others, "all with significant potential both to bias construction of historical narratives and to lead to confabulation of false memories." Id. When allegations of abuse span an entire community, these activities can provide an outlet for community reinforcement—an outlet which can strengthen survivor identities and foster the collective growth of increasingly inaccurate memories. See id.
When viewed in its proper historical context, petitioner's case appears as
Id. at 312. The record in this case suggests this is precisely the moral panic that swept up Nassau County law enforcement officers. Perhaps because they were certain of Arnold Friedman and petitioner's guilt, they were unfazed by the lack of physical evidence, and they may have felt comfortable cutting corners in their investigation. After all, "[t]horoughness is a frequent casualty of such cases." Id. at 309. The actions of the prosecution are also troubling. In representing the sovereign, a prosecutor is a "servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). "[W]hile [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Id. Thus, prosecutors have an obligation to curb police overzealousness. In this case, instead of acting to neutralize the moral panic, the prosecution allowed itself to get swept up in it.
Petitioner has come forward with substantial evidence that flawed interviewing techniques were used to produce a flood of allegations, which the then-District Attorney of Nassau County wrung into over two hundred claims of child sexual abuse against petitioner. Petitioner never had an opportunity to explore how the evidence against him was obtained. On the contrary, the police, prosecutors, and the judge did everything they could to coerce a guilty plea and avoid a trial. Thus, with the number of counts in the indictments and Judge Boklan's threat to impose the highest conceivable sentence for each charge, petitioner faced a virtually certain life sentence if he was convicted at trial. And the likelihood that any jury pool would be tainted seemed to ensure that petitioner would be convicted if he went to trial, regardless of his guilt or innocence. Nor could he have reasonably expected to receive a fair trial from Judge Boklan, the former head of the Nassau County District Attorney's Sex Crime Unit, who admitted that she never had any doubt of the defendant's guilt even before she heard any of the evidence or the means by which it was obtained. Even if innocent, petitioner may well have pled guilty.
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 cross-examination, and the credibility of his testimony to be determined by a properly instructed jury." Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 17 L.Ed.2d 374 (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.
Nevertheless, even if we also assumed that such a federal right exists, and that petitioner could meet the "high standard any claimant would have to meet" to obtain relief, we could not reach that issue here. This is so because petitioner has not exhausted that claim in the New York State courts even though the New York cases suggest that relief on this basis may be available pursuant to N.Y.Crim. P. § 441.10(1)(h). See, e.g., People v. Day, 26 Misc.3d 1205(A), 2009 WL 5191433, *13 (N.Y. County Ct. Dec. 31, 2009); People v. Bermudez, No. 8759/91, 2009 WL 3823270, *22 (N.Y.Sup.Ct. Nov. 9, 2009); People v. Wheeler-Whichard, 25 Misc.3d 690, 884 N.Y.S.2d 304, 313 (Sup.Ct.2009); People v. Bozella, 25 Misc.3d 1215(a), 2009 WL 3364575, *16 (N.Y. County Ct. Oct. 14, 2009); People v. Cole, 1 Misc.3d 531, 765 N.Y.S.2d 477, 484-85 (Sup.Ct.2003). 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.
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:
The record here suggests "a reasonable likelihood" that Jesse Friedman was
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.
We add these brief words in response to Judge Raggi's concurring opinion. While she joins in the affirmance in the denial of the writ, she questions the need to "engage in a lengthy discussion of the facts and circumstances that Friedman asserts led to his conviction," and she expresses understandable concern that these facts and circumstances were not developed at an evidentiary hearing. Concurring Op., ante at 161-62. Nevertheless, she agrees with us that "the facts alleged are disturbing and may well warrant further inquiry by a responsible prosecutor's office," although she "cannot predict whether the outcome of any such inquiry will be favorable to petitioner, whose conviction is based on a plea of guilty that he thereafter publicly confirmed." Id.
Notwithstanding her reluctance to join "in the remainder of the opinion" beyond the discussion necessary to resolve petitioner's Brady claim, it bears emphasizing that all three members of the panel are in agreement that this case "may well warrant further inquiry by a responsible prosecutor's
Under these circumstances, the purpose of our "lengthy discussion of the facts and circumstances that Friedman asserts led to his conviction," id., is to make the case that a "further inquiry by a responsible prosecutor's office" is justified despite a guilty plea entered under circumstances which clearly suggest that it was not voluntary. Indeed, passing over all of the pressures described above that were brought to bear on petitioner, the threat Judge Boklan made to petitioner's counsel, Peter Panaro, that, "if Jesse were to go to trial, she intended to sentence him to consecutive terms of imprisonment for each count that he was convicted on" [Pet'r Aff. ¶ 26, A-156; Panaro Aff. ¶ 11, A-764] would be sufficient by itself to sustain a challenge to the plea if Panaro's affidavit is credited.
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.
The judgment of the district court is AFFIRMED.
REENA RAGGI, Circuit Judge, concurring in part:
I join only in so much of the court's opinion as holds (1) that petitioner's Brady claim is untimely and (2) that this court need not decide whether to excuse such untimeliness on actual innocence grounds because the Brady claim does not merit habeas corpus relief in any event. To reach these conclusions, the court need not engage in a lengthy discussion of the facts and circumstances that Friedman asserts led to his conviction, much less assume the truth of those facts or the misconduct of police officers, prosecutors, defense counsel, and the presiding state court judge before a hearing. Accordingly, I do not join in the remainder of the opinion. While the facts alleged are disturbing and may well warrant further inquiry by a responsible prosecutor's office, I cannot predict whether the outcome of any such inquiry will be favorable to petitioner, whose conviction is based on a plea of