Appellate Review: Friedman v. Rehal

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U.S. Court of Appeals, Second Circuit

Appellate Review

Actual Innocence — Time Bar

Friedman v. Rehal
08-0297-pr
Appealed from the Eastern District of New York

Background: The appeal is from the denial of a writ of habeas corpus in a case in which the petitioner pleaded guilty and seeks habeas 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 actually is innocent. The petitioner was a computer instructor charged with child abuse after being suspected on child pornography violations. No student ever complained of abuse, however, nor had any parent ever observed suspicious behavior prior to the investigation. ADA Onorato acknowledged “there was a dearth of physical evidence” showed against the defendant. Nor did the investigation produce what Onorato 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.” The Nassau County Police Department never produced transcripts, recordings, or videotapes of the student interviews that preceded the indictments and several students who were questioned recalled the detectives’ use of aggressive and highly suggestive questioning techniques. The petitioner accepted a plea deal, therefore the lack of evidence and the withheld documentation never was explored fully.

Ruling: The district court’s judgment is affirmed. A “further inquiry by a responsible prosecutor’s office” is justified despite a guilty plea entered under circumstances that clearly suggest it was not voluntary. Passing over all of the pressures brought to bear on the petitioner, Judge Boklan’s threat 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” —  would be sufficient by itself to sustain a challenge to the plea if Panaro’s affidavit is credited. The petitioner also offered a plausible explanation for his post-plea admission. Specifically, he made up a story attributing his conduct to the fact that he was molested by his father as a child in the hope that it might insulate him from attacks in prison and might persuade Judge Boklan to ask the parole board for leniency on his behalf.

Jennifer Bonjean for the appellant; Judith R. Sternberg, assistant district attorney, for the appellee